Exhibit
10.1


Execution version








	
  

 
	
 Published CUSIP Number:

 
	
 Deal
 – 231562AA7 

 
	
 Revolver
 – 231562AB5

 


THIRD AMENDED AND RESTATED CREDIT
AGREEMENT


Dated as of August
9, 2012


among


CURTISS-WRIGHT CORPORATION


and


CERTAIN SUBSIDIARIES THEREOF,
as Borrowers,


BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and L/C Issuer,


and


the other Lenders
Party hereto


MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED,

J.P.
MORGAN SECURITIES LLC and

WELLS
FARGO SECURITIES, LLC,

as Joint Lead Arrangers and Joint Bookrunners,


and


JPMORGAN CHASE BANK, N.A. and

WELLS
FARGO BANK, NATIONAL ASSOCIATION,

as Syndication Agents,


and


RBS CITIZENS, N.A.,
as Documentation Agent









Execution version 


TABLE OF CONTENTS


	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Section

 	
  

 	
  

 	
 Page

 
	
  

 	

 


 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE I. DEFINITIONS AND
 ACCOUNTING TERMS

 	
  

 	
 1

 
	
  

 	
 1.01

 	
 Defined Terms

 	
  

 	
 1

 
	
  

 	
 1.02

 	
 Other Interpretive
 Provisions

 	
  

 	
 26

 
	
  

 	
 1.03

 	
 Accounting Terms

 	
  

 	
 27

 
	
  

 	
 1.04

 	
 Rounding

 	
  

 	
 27

 
	
  

 	
 1.05

 	
 Exchange Rates; Currency
 Equivalents

 	
  

 	
 27

 
	
  

 	
 1.06

 	
 Additional Alternative
 Currencies

 	
  

 	
 28

 
	
  

 	
 1.07

 	
 Change of Currency

 	
  

 	
 29

 
	
  

 	
 1.08

 	
 Times of Day

 	
  

 	
 29

 
	
  

 	
 1.09

 	
 Letter of Credit Amounts

 	
  

 	
 29

 
	
  

 	
  

 	
  

 
	
 ARTICLE II. THE
 COMMITMENTS AND CREDIT EXTENSIONS

 	
  

 	
 29

 
	
  

 	
 2.01

 	
 Committed Loans

 	
  

 	
 29

 
	
  

 	
 2.02

 	
 Borrowings, Conversions
 and Continuations of Committed Loans

 	
  

 	
 30

 
	
  

 	
 2.03

 	
 Letters of Credit

 	
  

 	
 32

 
	
  

 	
 2.04

 	
 Swing Line Loans

 	
  

 	
 42

 
	
  

 	
 2.05

 	
 Prepayments

 	
  

 	
 45

 
	
  

 	
 2.06

 	
 Termination or Reduction
 of Commitments

 	
  

 	
 46

 
	
  

 	
 2.07

 	
 Repayment of Loans

 	
  

 	
 47

 
	
  

 	
 2.08

 	
 Interest

 	
  

 	
 47

 
	
  

 	
 2.09

 	
 Fees

 	
  

 	
 48

 
	
  

 	
 2.10

 	
 Computation of Interest
 and Fees; Retroactive Adjustments of Applicable Rate

 	
  

 	
 48

 
	
  

 	
 2.11

 	
 Evidence of Debt

 	
  

 	
 49

 
	
  

 	
 2.12

 	
 Payments Generally;
 Administrative Agent’s Clawback

 	
  

 	
 50

 
	
  

 	
 2.13

 	
 Sharing of Payments by
 Lenders

 	
  

 	
 51

 
	
  

 	
 2.14

 	
 Designated Borrowers

 	
  

 	
 52

 
	
  

 	
 2.15

 	
 Increase in Commitments

 	
  

 	
 53

 
	
  

 	
 2.16

 	
 Defaulting Lenders

 	
  

 	
 55

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE III. TAXES, YIELD
 PROTECTION AND ILLEGALITY

 	
  

 	
 57

 
	
  

 	
 3.01

 	
 Taxes

 	
  

 	
 57

 
	
  

 	
 3.02

 	
 Illegality

 	
  

 	
 61

 
	
  

 	
 3.03

 	
 Inability to Determine
 Rates

 	
  

 	
 62

 
	
  

 	
 3.04

 	
 Increased Costs; Reserves
 on Eurocurrency Rate Loans

 	
  

 	
 62

 
	
  

 	
 3.05

 	
 Compensation for Losses

 	
  

 	
 64

 
	
  

 	
 3.06

 	
 Mitigation Obligations;
 Replacement of Lenders

 	
  

 	
 65

 
	
  

 	
 3.07

 	
 Survival

 	
  

 	
 65

 
	
  

 	
  

 	
  

 
	
 ARTICLE IV. CONDITIONS
 PRECEDENT TO CREDIT EXTENSIONS

 	
  

 	
 65

 
	
  

 	
 4.01

 	
 Conditions of Initial
 Credit Extension

 	
  

 	
 65

 
	
  

 	
 4.02

 	
 Conditions to all Credit
 Extensions

 	
  

 	
 67

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE V. REPRESENTATIONS
 AND WARRANTIES

 	
  

 	
 68

 
	
  

 	
 5.01

 	
 Existence, Qualification
 and Power

 	
  

 	
 68

 









TABLE OF CONTENTS (continued)


	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Section

 	
  

 	
  

 	
 Page

 
	
  

 	

 


 	
  

 	
  

 	

 


 
	
  

 
	
  

 	
 5.02

 	
 Authorization; No
 Contravention

 	
  

 	
 68

 
	
  

 	
 5.03

 	
 Governmental
 Authorization; Other Consents

 	
  

 	
 69

 
	
  

 	
 5.04

 	
 Binding Effect

 	
  

 	
 69

 
	
  

 	
 5.05

 	
 Financial Statements; No
 Material Adverse Effect

 	
  

 	
 69

 
	
  

 	
 5.06

 	
 Litigation

 	
  

 	
 69

 
	
  

 	
 5.07

 	
 No Default

 	
  

 	
 70

 
	
  

 	
 5.08

 	
 Ownership of Property;
 Liens

 	
  

 	
 70

 
	
  

 	
 5.09

 	
 Environmental Compliance

 	
  

 	
 70

 
	
  

 	
 5.10

 	
 Insurance

 	
  

 	
 70

 
	
  

 	
 5.11

 	
 Taxes

 	
  

 	
 70

 
	
  

 	
 5.12

 	
 ERISA Compliance

 	
  

 	
 70

 
	
  

 	
 5.13

 	
 Subsidiaries; Equity
 Interests

 	
  

 	
 71

 
	
  

 	
 5.14

 	
 Margin Regulations;
 Investment Company Act

 	
  

 	
 71

 
	
  

 	
 5.15

 	
 Disclosure

 	
  

 	
 71

 
	
  

 	
 5.16

 	
 Compliance with Laws

 	
  

 	
 72

 
	
  

 	
 5.17

 	
 Intellectual Property;
 Licenses, Etc

 	
  

 	
 72

 
	
  

 	
 5.18

 	
 Foreign Assets Control
 Regulations, etc

 	
  

 	
 72

 
	
  

 	
 5.19

 	
 Taxpayer Identification
 Number; Other Identifying Information

 	
  

 	
 73

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE VI. AFFIRMATIVE
 COVENANTS

 	
  

 	
 73

 
	
  

 	
 6.01

 	
 Financial Statements

 	
  

 	
 73

 
	
  

 	
 6.02

 	
 Certificates; Other
 Information

 	
  

 	
 74

 
	
  

 	
 6.03

 	
 Notices

 	
  

 	
 75

 
	
  

 	
 6.04

 	
 Payment of Obligations

 	
  

 	
 76

 
	
  

 	
 6.05

 	
 Preservation of Existence,
 Etc

 	
  

 	
 76

 
	
  

 	
 6.06

 	
 Maintenance of Properties

 	
  

 	
 76

 
	
  

 	
 6.07

 	
 Maintenance of Insurance

 	
  

 	
 77

 
	
  

 	
 6.08

 	
 Compliance with Laws

 	
  

 	
 77

 
	
  

 	
 6.09

 	
 Books and Records

 	
  

 	
 77

 
	
  

 	
 6.10

 	
 Inspection Rights

 	
  

 	
 77

 
	
  

 	
 6.11

 	
 Use of Proceeds

 	
  

 	
 77

 
	
  

 	
 6.12

 	
 Approvals and
 Authorizations

 	
  

 	
 77

 
	
  

 	
 6.13

 	
 Additional Subsidiary
 Guarantors

 	
  

 	
 78

 
	
  

 	
  

 	
  

 
	
 ARTICLE VII. NEGATIVE
 COVENANTS

 	
  

 	
 78

 
	
  

 	
 7.01

 	
 Liens

 	
  

 	
 78

 
	
  

 	
 7.02

 	
 [Reserved]

 	
  

 	
 80

 
	
  

 	
 7.03

 	
 Indebtedness

 	
  

 	
 80

 
	
  

 	
 7.04

 	
 Fundamental Changes

 	
  

 	
 81

 
	
  

 	
 7.05

 	
 Dispositions

 	
  

 	
 81

 
	
  

 	
 7.06

 	
 Restricted Payments

 	
  

 	
 82

 
	
  

 	
 7.07

 	
 Change in Nature of Business

 	
  

 	
 82

 
	
  

 	
 7.08

 	
 Transactions with
 Affiliates

 	
  

 	
 82

 
	
  

 	
 7.09

 	
 Burdensome Agreements

 	
  

 	
 82

 
	
  

 	
 7.10

 	
 Use of Proceeds

 	
  

 	
 83

 
	
  

 	
 7.11

 	
 Financial Covenants

 	
  

 	
 83

 
	
  

 	
 7.12

 	
 Material Subsidiaries

 	
  

 	
 83

 


ii





TABLE OF CONTENTS (continued)


	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Section

 	
  

 	
  

 	
 Page

 
	
  

 	

 


 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 7.13

 	
 Mergers; Acquisitions;
 Investments

 	
  

 	
 83

 
	
  

 	
 7.14

 	
 Terrorism Sanctions
 Regulations

 	
  

 	
 84

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE VIII. EVENTS OF
 DEFAULT AND REMEDIES

 	
  

 	
 84

 
	
  

 	
 8.01

 	
 Events of Default

 	
  

 	
 84

 
	
  

 	
 8.02

 	
 Remedies Upon Event of
 Default

 	
  

 	
 86

 
	
  

 	
 8.03

 	
 Application of Funds

 	
  

 	
 86

 
	
  

 	
  

 	
  

 
	
 ARTICLE IX. ADMINISTRATIVE
 AGENT

 	
  

 	
 87

 
	
  

 	
 9.01

 	
 Appointment and Authority

 	
  

 	
 87

 
	
  

 	
 9.02

 	
 Rights as a Lender

 	
  

 	
 88

 
	
  

 	
 9.03

 	
 Exculpatory Provisions

 	
  

 	
 88

 
	
  

 	
 9.04

 	
 Reliance by Administrative
 Agent

 	
  

 	
 89

 
	
  

 	
 9.05

 	
 Delegation of Duties

 	
  

 	
 89

 
	
  

 	
 9.06

 	
 Resignation of
 Administrative Agent

 	
  

 	
 90

 
	
  

 	
 9.07

 	
 Non-Reliance on
 Administrative Agent and Other Lenders

 	
  

 	
 91

 
	
  

 	
 9.08

 	
 Guaranty Matters

 	
  

 	
 91

 
	
  

 	
 9.09

 	
 No Other Duties, Etc

 	
  

 	
 91

 
	
  

 	
  

 	
  

 
	
 ARTICLE X. MISCELLANEOUS

 	
  

 	
 92

 
	
  

 	
 10.01

 	
 Amendments, Etc

 	
  

 	
 92

 
	
  

 	
 10.02

 	
 Notices; Effectiveness;
 Electronic Communication

 	
  

 	
 93

 
	
  

 	
 10.03

 	
 No Waiver; Cumulative
 Remedies; Enforcement

 	
  

 	
 95

 
	
  

 	
 10.04

 	
 Expenses; Indemnity;
 Damage Waiver

 	
  

 	
 96

 
	
  

 	
 10.05

 	
 Payments Set Aside

 	
  

 	
 98

 
	
  

 	
 10.06

 	
 Successors and Assigns

 	
  

 	
 98

 
	
  

 	
 10.07

 	
 Treatment of Certain
 Information; Confidentiality

 	
  

 	
 104

 
	
  

 	
 10.08

 	
 Right of Setoff

 	
  

 	
 104

 
	
  

 	
 10.09

 	
 Interest Rate Limitation

 	
  

 	
 105

 
	
  

 	
 10.10

 	
 Counterparts; Integration;
 Effectiveness

 	
  

 	
 105

 
	
  

 	
 10.11

 	
 Survival of
 Representations and Warranties

 	
  

 	
 105

 
	
  

 	
 10.12

 	
 Severability

 	
  

 	
 106

 
	
  

 	
 10.13

 	
 Replacement of Lenders

 	
  

 	
 106

 
	
  

 	
 10.14

 	
 Governing Law;
 Jurisdiction; Etc

 	
  

 	
 107

 
	
  

 	
 10.15

 	
 Waiver of Jury Trial

 	
  

 	
 108

 
	
  

 	
 10.16

 	
 No Advisory or Fiduciary
 Responsibility

 	
  

 	
 108

 
	
  

 	
 10.17

 	
 Electronic Execution of
 Assignments and Certain Other Documents

 	
  

 	
 109

 
	
  

 	
 10.18

 	
 USA PATRIOT Act

 	
  

 	
 109

 
	
  

 	
 10.19

 	
 Time of the Essence

 	
  

 	
 109

 
	
  

 	
 10.20

 	
 Judgment Currency

 	
  

 	
 109

 
	
  

 	
 10.21

 	
 Designation of Loans Under
 Private Placements

 	
  

 	
 110

 
	
  

 	
 10.22

 	
 ENTIRE AGREEMENT

 	
  

 	
 110

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 SIGNATURES

 	
  

 	
 S-1

 


iii





Execution version


	
  

 	
  

 	
  

 
	
 SCHEDULES

 
	
  

 
	
  

 	
 1.01

 	
 Mandatory Cost Formulae

 
	
  

 	
 1.01(A)

 	
 Existing Letters of Credit

 
	
  

 	
 2.01

 	
 Commitments and Applicable
 Percentages

 
	
  

 	
 4.01(A)

 	
 Loan Parties; Formation
 and Qualifications

 
	
  

 	
 5.05

 	
 Supplement to Interim
 Financial Statements

 
	
  

 	
 5.06

 	
 Litigation

 
	
  

 	
 5.09

 	
 Environmental Matters

 
	
  

 	
 5.13

 	
 Subsidiaries; Equity
 Interests

 
	
  

 	
 5.16

 	
 Identification Numbers for
 Designated Borrowers that are Foreign Subsidiaries

 
	
  

 	
 5.17

 	
 Intellectual Property
 Matters

 
	
  

 	
 7.01

 	
 Existing Liens

 
	
  

 	
 7.03

 	
 Existing Indebtedness

 
	
  

 	
  

 	
  

 
	
  

 	
 10.02

 	
 Administrative Agent’s
 Office; Certain Addresses for Notices; Loan Parties’ U.S. Tax Identification
 Numbers

 
	
  

 	
  

 	
  

 
	
 EXHIBITS

 
	
  

 
	
  

 	
  

 	
 Form of

 
	
  

 	
  

 	
  

 
	
  

 	
 A

 	
 Committed Loan Notice

 
	
  

 	
 B

 	
 Swing Line Loan Notice

 
	
  

 	
 C

 	
 Note

 
	
  

 	
 D

 	
 Compliance Certificate

 
	
  

 	
 E-1

 	
 Assignment and Assumption

 
	
  

 	
 E-2

 	
 Administrative
 Questionnaire

 
	
  

 	
 F

 	
 [Reserved]

 
	
  

 	
 G

 	
 Subsidiary Guaranty

 
	
  

 	
 H

 	
 Designated Borrower
 Request and Assumption Agreement

 
	
  

 	
 I

 	
 Designated Borrower Notice

 
	
  

 	
 J-1 to J-4

 	
 Forms of U.S. Tax
 Compliance Certificates

 









THIRD
AMENDED AND RESTATED CREDIT AGREEMENT


          This
THIRD AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered
into as of August 9, 2012, among CURTISS-WRIGHT CORPORATION, a
Delaware corporation (the “Company”), certain Subsidiaries of the
Company party hereto pursuant to Section 2.14 (each a “Designated
Borrower” and, together with the Company, the “Borrowers” and, each
a “Borrower”), each lender from time to time party hereto (collectively,
the “Lenders” and individually, a “Lender”), BANK OF AMERICA,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer (as each term
is defined herein), JPMORGAN CHASE BANK, N.A. and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as syndication agents (in such capacity, the “Syndication
Agents”), and RBS CITIZENS, N.A., as documentation agent (in such capacity,
the “Documentation Agent”).


          The
Borrowers are parties to a certain Second Amended and Restated Credit
Agreement, dated as of August 10, 2007, with certain of the Lenders (the “Prior
Agreement”) pursuant to which such Lenders have extended credit to the
Borrowers and issued letters of credit on behalf of the Borrowers. 


          The
Company has requested that the Lenders provide a revolving credit facility to
refinance the credit facilities under the Prior Agreement, and for financing
working capital, capital expenditures, acquisitions and other general lawful
corporate purposes of the Borrowers, by amending and restating the Prior
Agreement in its entirety, and the Lenders are willing to do so on the terms
and conditions set forth herein.


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


ARTICLE
I.

DEFINITIONS AND ACCOUNTING TERMS


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


          “Additional
Indebtedness” means additional Indebtedness of the Company and Subsidiary
Guarantors described in Section 7.03(f).


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


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


          “Administrative
Questionnaire” means an Administrative Questionnaire in substantially the
form of Exhibit E-2 or any other form approved by the Administrative
Agent.


1





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


          “Aggregate
Commitments” means the Commitments of all the Lenders, not to exceed Five
Hundred Million Dollars ($500,000,000.00) as of the Closing Date, and
thereafter subject to increase pursuant to Section 2.15 (but not, in any
event, in excess of Six Hundred Million Dollars ($600,000,000.00) as set forth
in Section 2.15) and reduction pursuant to Section 2.06.


          “Agreement”
means this Third Amended and Restated Credit Agreement.


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


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


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


          “Applicable
Rate” means the following percentages per annum, based upon the Consolidated
Leverage Ratio as set forth in the most recent Compliance Certificate received
by the Administrative Agent pursuant to Section 6.02(b):


2









	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Pricing

Level  

 	
   

 	
Consolidated

Leverage Ratio  

 	
   

 	
Facility Fee  

 	
   

 	
For

Eurocurrency

Rate Loans  

 	
   

 	
Letter of

Credit Fee  

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 
	
  

 
	
 1

 	
  

 	
 >50%

 	
  

 	
 0.200%

 	
  

 	
 1.550%

 	
  

 	
 1.550%

 
	
  

 
	
 2

 	
  

 	
 < 50%, but >40%

 	
  

 	
 0.175%

 	
  

 	
 1.300%

 	
  

 	
 1.300%

 
	
  

 
	
 3

 	
  

 	
 < 40%, but >30%

 	
  

 	
 0.150%

 	
  

 	
 1.075%

 	
  

 	
 1.075%

 
	
  

 
	
 4

 	
  

 	
 <30%

 	
  

 	
 0.125%

 	
  

 	
 0.850%

 	
  

 	
 0.850%

 


                    Any
increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant
to Section 6.02(b); provided, however, that if a
Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level 1 shall apply as of the first Business Day after
the date on which such Compliance Certificate was required to have been
delivered and shall remain in effect until such time as the Compliance
Certificate has been delivered and the proper Pricing Level can be determined
and implemented. The Applicable Rate as in effect from the Closing Date through
the date a Compliance Certificate for the period ending June 30, 2012 is
delivered shall be determined based upon Pricing Level 3.


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


          “Applicant
Borrower” has the meaning specified in Section 2.14(b).


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


          “Assignee
Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.


          “Assignment
and Assumption” means an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is
required by Section 10.06(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit E-1 or any other form
(including electronic documentation generated by MarkitClear or other
electronic platform) approved by the Administrative Agent.


          “Assured
Obligation” means any Indebtedness or other obligation or liability.


3





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


          “Audited
Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended December 31, 2011, and
the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal year of the Company and its Subsidiaries,
including the notes thereto. 


          “Auto-Extension
Letter of Credit” has the meaning specified in Section 2.03(b)(iii).


          “Auto-Reinstatement
Letter of Credit” has the meaning specified in Section 2.03(b)(iv).


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


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


          “Base
Rate” means for any day
a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate
plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate,” and (c) the
Eurocurrency Rate plus 1.00%. The “prime rate” is a rate set by Bank of America
based upon various factors including Bank of America’s costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such prime rate announced by Bank of America
shall take effect at the opening of business on the day specified in the public
announcement of such change.


          “Base
Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.


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


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


          “Borrower
Account” has the meaning specified in Section 2.12(a).


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


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


4





          “Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent’s Office with respect to
Obligations denominated in Dollars is located and:


	
  

 	
  

 
	
  

 	
           (a)
 if such day relates to any interest rate settings as to a Eurocurrency Rate
 Loan denominated in Dollars, any fundings, disbursements, settlements and
 payments in Dollars in respect of any such Eurocurrency Rate Loan, or any
 other dealings in Dollars to be carried out pursuant to this Agreement in
 respect of any such Eurocurrency Rate Loan, means any such day on which
 dealings in deposits in Dollars are conducted by and between banks in the
 London interbank eurodollar market;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 


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


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


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


5









	
  

 	
  

 
	
  

 	
           (a)
 any “person” or “group” (as such terms are used in Sections 13(d) and 14(d)
 of the Securities Exchange Act of 1934, but excluding any employee benefit
 plan of such person or its subsidiaries, and any person or entity acting in
 its capacity as trustee, agent or other fiduciary or administrator of any
 such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and
 13d-5 under the Securities Exchange Act of 1934, except that a person or
 group shall be deemed to have “beneficial ownership” of all securities that
 such person or group has the right to acquire, whether such right is
 exercisable immediately or only after the passage of time (such right, an “option
 right”)), directly or indirectly, of 50% or more of the equity securities
 of the Company entitled to vote for members of the board of directors or
 equivalent governing body of the Company on a fully-diluted basis (and taking
 into account all such securities that such person or group has the right to
 acquire pursuant to any option right);

 
	
  

 	
  

 
	
  

 	
           (b)
 during any period of 24 consecutive months, a majority of the members of the
 board of directors or other equivalent governing body of the Company cease to
 be composed of individuals (i) who were members of that board or equivalent
 governing body on the first day of such period, (ii) whose election or
 nomination to that board or equivalent governing body was approved by
 individuals referred to in clause (i) above constituting at the time of such
 election or nomination at least a majority of that board or equivalent
 governing body or (iii) whose election or nomination to that board or other
 equivalent governing body was approved by individuals referred to in clauses
 (i) and (ii) above constituting at the time of such election or nomination at
 least a majority of that board or equivalent governing body (excluding, in
 the case of both clause (ii) and clause (iii), any individual whose initial
 nomination for, or assumption of office as, a member of that board or
 equivalent governing body occurs as a result of an actual or threatened
 solicitation of proxies or consents for the election or removal of one or
 more directors by any person or group other than a solicitation for the
 election of one or more directors by or on behalf of the board of directors);
 or

 
	
  

 	
  

 
	
  

 	
           (c)
 any Person or two or more Persons acting in concert shall have acquired by
 contract or otherwise, or shall have entered into a contract or arrangement
 that, upon consummation thereof, will result in its or their acquisition of
 the power to exercise, directly or indirectly, a controlling influence over
 the management or policies of the Company, or control over the equity
 securities of the Company entitled to vote for members of the board of
 directors or equivalent governing body of the Company on a fully-diluted
 basis (and taking into account all such securities that such Person or group
 has the right to acquire pursuant to any option right) representing 50% or more of the combined voting
 power of such securities.

 


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


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


          “Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to the
Borrowers pursuant to Section 2.01 and, if and to the extent applicable,
Section 2.15, (b) purchase participations in L/C Obligations, and (c)
purchase participations in Swing Line Loans, 


6





in an aggregate principal
amount at any one time outstanding not to exceed the Dollar amount set forth
opposite such Lender’s name on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this
Agreement.


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


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


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


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


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


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


          “Consolidated
Capitalization” means, as of any date of determination, an amount equal to
Shareholders’ Equity plus Consolidated Funded Indebtedness.


          “Consolidated
EBITDA” means, for any period, for the Company and its Subsidiaries on a
consolidated basis, the sum of (a) Consolidated Net Income for such period,
plus (b) Consolidated Interest Charges for such period, plus (c) consolidated
foreign, federal and state income tax expenses for such period, plus (d)
depreciation and amortization for such period, plus (e) extraordinary losses
for such period, minus (f) extraordinary gains for such period.


          “Consolidated
Funded Indebtedness” means, as of any date of determination, for the
Company and its Subsidiaries on a consolidated basis, the sum of (without
duplication) (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of
business), (e) Attributable Indebtedness, (f) all liabilities secured by any
Lien (other than a Lien permitted pursuant to Section 7.01(j)) on any
property owned by the Company or any of its Subsidiaries, to the extent
attributable to its interest in such property, even though such liabilities had
not been assumed or neither the Company nor any of its Subsidiaries have become
liable for it; (g) all Guarantees with respect to outstanding Indebtedness of
the types specified in clauses (a) through (f) above of Persons other than the
Company or any Subsidiary, (h) all Indebtedness of the types referred to in
clauses (a) through (g) above of any partnership or 


7





joint venture (other than
a joint venture that is itself a corporation or limited liability company) in
which the Company or a Subsidiary is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to the Company and its
Subsidiaries, and (i) Deemed Debt.


          “Consolidated
Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of interest expense (whether cash
or non-cash) determined in accordance with GAAP for the relevant period ended
on such date, including, in any event, interest expense with respect to
Indebtedness of the Company and its Subsidiaries, interest expense for the
relevant period that has been capitalized on the balance sheet and interest
expense with respect to any Deemed Debt.


          “Consolidated
Interest Coverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated EBITDA for the period of the immediately preceding four full
fiscal quarters, to (b) Consolidated Interest Charges for such period.


          “Consolidated
Leverage Ratio” means, as of any date of determination, the ratio of, (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated
Capitalization of the Company and its Subsidiaries as of that date.


          “Consolidated
Net Income” means, for any period, the net income (or loss) of the Company
and its Subsidiaries for such period (taken as a cumulative whole), as
determined in accordance with GAAP, after eliminating all offsetting debits and
credits between the Company and its Subsidiaries and all other items required
to be eliminated in the course of the preparation of consolidated financial
statements of the Company and its Subsidiaries in accordance with GAAP.


          “Consolidated
Net Worth” means, as of any date, the sum of (a) total stockholders’ equity
of the Company and its Subsidiaries as of such date, determined on a
consolidated basis in accordance with GAAP, minus (b) to the extent included in clause
(a), all amounts properly attributable to minority interests, if any, in the
stock and surplus of Subsidiaries, minus (c) any increase in the amount of
Consolidated Net Worth attributable to a write-up in the book value of any
asset on the books of the Company and its Subsidiaries resulting from a
revaluation thereof subsequent to September 30, 2011, minus (d) the amounts, if
any, at which any shares of capital stock of the Company or any Subsidiary
appear as an asset on the balance sheet from which Consolidated Net Worth is
determined for the purposes of this definition.


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


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


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


8





          “Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.


          “Deemed
Debt” means the amount of indebtedness incurred by the Company and its
consolidated Subsidiaries and any special purpose corporation or trust which is
an Affiliate of the Company or any of its Subsidiaries in connection with any
accounts receivable or inventory financing facility, whether or not shown on
the balance sheet of the Company or such Subsidiary in accordance with GAAP to
the extent not included in the definition of Indebtedness. For purposes of
determining the amount of Deemed Debt incurred by any Person in connection with
any accounts receivable or inventory financing transaction, the amount of all
contingent obligations of such Person shall be included as well as non-recourse
indebtedness incurred in connection with such transaction. Deemed Debt shall
not include operating leases.


          “Deemed
Guarantor” means a Person who is deemed subject to a Guarantee in respect
of any Assured Obligation of another Person (the “Deemed Obligor”)
because such Person directly or indirectly guarantees, becomes surety for,
endorses, assumes, agrees to indemnify the Deemed Obligor against, or otherwise
agrees, becomes or remains liable (contingently or otherwise) for, such Assured
Obligation. 


          “Deemed
Obligor” shall have the meaning set forth in the definition of “Deemed
Guarantor” in this Section 1.01.


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


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


          “Defaulting
Lender” means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of
its Loans within two Business Days of the date such Loans were required to be
funded hereunder unless such Lender notifies the Administrative Agent and the
Borrower in writing that such failure is the result of such Lender’s
determination that one or more conditions precedent to funding (each of which
conditions precedent, together with any applicable default, shall be
specifically identified in such writing) has not been satisfied, or (ii) pay to
the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other
Lender any other amount required to be paid by it hereunder (including in
respect of its participation in Letters of Credit or Swing Line Loans) within
two Business Days of the date when due, (b) has notified the Borrower, the
Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that
it does not intend to comply with its funding obligations hereunder, or has
made a 


9





public
statement to that effect (unless such writing or public statement relates to
such Lender’s obligation to fund a Loan hereunder and states that such position
is based on such Lender’s determination that a condition precedent to funding
(which condition precedent, together with any applicable default, shall be
specifically identified in such writing or public statement) cannot be
satisfied), (c) has failed, within three Business Days after written request by
the Administrative Agent or the Borrower, to confirm in writing to the
Administrative Agent and the Borrower that it will comply with its prospective
funding obligations hereunder (provided that such Lender shall cease to
be a Defaulting Lender pursuant to this clause (c) upon receipt of such
written confirmation by the Administrative Agent and the Borrower), or (d) has,
or has a direct or indirect parent company that has, (i) become the subject of
a proceeding under any Debtor Relief Law, or (ii) had appointed for it a
receiver, custodian, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person charged with reorganization or
liquidation of its business or assets, including the Federal Deposit Insurance
Corporation or any other state or federal regulatory authority acting in such a
capacity; provided that a Lender shall not be a Defaulting Lender solely
by virtue of the ownership or acquisition of any Equity Interest in that Lender
or any direct or indirect parent company thereof by a Governmental Authority so
long as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavow or
disaffirm any contracts or agreements made with such Lender. Any determination
by the Administrative Agent that a Lender is a Defaulting Lender under any one
or more of clauses (a) through (d) above, and of the effective date
of such status, shall be conclusive and binding absent manifest error, and such
Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b))
as of the date established therefor by the Administrative Agent in a written
notice of such determination, which shall be delivered by the Administrative
Agent to the Borrower, the L/C Issuer, the Swing Line Lender and each other
Lender promptly following such determination.


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


          “Designated
Borrower Notice” has the meaning specified in Section 2.14(b).


          “Designated
Borrower Request and Assumption Agreement” has the meaning specified in Section 2.14(b).


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


          “Documentation
Agent” has the meaning specified in the introductory paragraph hereto.


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


          “Dollar
Equivalent” means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent or 


10





the L/C Issuer, as the
case may be, at such time on the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of Dollars with such
Alternative Currency.


          “Domestic
Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.


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


          “EMU”
means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992
and the Amsterdam Treaty of 1998.


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


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


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


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


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


          “ERISA
Affiliate” means any trade or business (whether or not incorporated) under
common control with the Company within the meaning of Section 414(b) or (c) of
the Code (and 


11








Sections 414(m) and (o) of the Code for purposes of provisions relating
to Section 412 of the Code).


          “ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer
(as defined in Section 4001(a)(2) of ERISA) or a cessation of operations
that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Company
or any ERISA Affiliate.


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


          “Eurocurrency
Rate” means, for any Interest Period with respect to a Eurocurrency Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent
from time to time) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, for deposits in the relevant
currency (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not available at such time
for any reason, then the “Eurocurrency Rate” for such Interest Period shall be
the rate per annum determined by the Administrative Agent to be the rate at
which deposits in the relevant currency for delivery on the first day of such
Interest Period in Same Day Funds in the approximate amount of the Eurocurrency
Rate Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London
Branch (or other Bank of America branch or Affiliate) to major banks in the
London or other offshore interbank market for such currency at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.


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


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


          “Excluded
Taxes” means any of
the following Taxes imposed on or with respect to any Recipient or required to
be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or
measured by net income (however denominated), franchise Taxes, and branch
profits Taxes, in each case, (i) imposed as a result of such Recipient being
organized under the 


12





laws of, or having its principal office or,
in the case of any Lender, its Lending Office located in, the jurisdiction
imposing such Tax (or any political subdivision thereof) or (ii) that are Other
Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes
imposed on amounts payable to or for the account of such Lender with respect to
an applicable interest in a Loan or Commitment pursuant to a law in effect on
the date on which (i) such Lender acquires such interest in the Loan or Commitment (other
than pursuant to an assignment request
by the Borrowers under Section 10.13) or (ii) such Lender changes
its Lending Office, except in each case to the extent that, pursuant to Section
3.01(a)(ii) or (c), amounts with
respect to such Taxes were payable either to such Lender’s assignor immediately
before such Lender became a party hereto or to such Lender immediately before
it changed its Lending Office, (c) Taxes attributable to such Recipient’s
failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.


          “Existing
Letters of Credit” means those irrevocable letters of credit previously
issued under the Prior Agreement which remain outstanding on the date hereof,
will be deemed to be Letters of Credit issued under this Agreement, and which
are set forth on Schedule 1.01(A) hereto. 


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


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


          “Fee
Letter” or “Fee Letters” means, individually or collectively, the
separate, confidential letter agreements, dated as of the respective dates
thereof preceding the date hereof, among the Company, the Administrative Agent
and each of the Joint Lead Arrangers.


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


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


13





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


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


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


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


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


          “Granting
Lender” has the meaning specified in Section 10.06(g).


          “Guarantee”
means (a) to purchase or assume, or to supply funds for the payment, purchase
or satisfaction of, an Assured Obligation, (b) to make any loan, advance,
capital contribution or other investment in, or to purchase or lease any
property or services from, a Deemed Obligor (i) to maintain the solvency of a
Deemed Obligor, (ii) to enable a Deemed Obligor to meet any other financial
condition, (iii) to enable a Deemed Obligor to satisfy any Assured Obligation
or to make any Restricted Payment or any other payment, or (iv) to assure the
holder of such Assured Obligation against loss, (c) to purchase or lease
property or services from a Deemed Obligor regardless of the nondelivery of or
failure to furnish of such property or services, or (d) in respect of any other
transaction the effect of which is to assure the payment or performance (or
payment of damages or other remedy in the event of nonpayment or
nonperformance) of any Assured Obligation. Without limitation, a Guarantee
shall be deemed to exist if a Deemed Guarantor agrees, becomes or remains
liable (contingently or otherwise), directly or indirectly for any of the
foregoing.


          “Guaranty”
means the Subsidiary Guaranty.


          “Hazardous
Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, 


14





infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.


          “Honor
Date” has the meaning specified in Section 2.03(c).


          “Increase
Effective Date” has the meaning specified in Section 2.15(d).


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


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (b) all
 direct or contingent obligations of such Person arising under letters of
 credit (including standby and commercial but excluding standby letters of
 credit issued for the account of such Person in connection with bids on
 proposed contracts by such Person), bankers’ acceptances, bank guaranties,
 surety bonds and similar instruments;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (d) all
 obligations of such Person to pay the deferred purchase price of property or
 services (other than trade accounts payable in the ordinary course of
 business);

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (f)
 capital leases and Synthetic Lease Obligations;

 
	
  

 	
  

 
	
  

 	
           (g) all
 obligations of such Person to purchase, redeem, retire, defease or otherwise
 make any payment in respect of any Equity Interest in such Person or any
 other Person, valued, in the case of a redeemable preferred interest, at the
 greater of its voluntary or involuntary liquidation preference plus accrued
 and unpaid dividends; and

 
	
  

 	
  

 
	
  

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

 


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


15





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


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


          “Information”
has the meaning specified in Section 10.07.


          “Intangible
Assets” means assets that are considered to be intangible assets under
GAAP, including customer lists, goodwill, computer software, copyrights, trade
names, trademarks, patents, franchises, licenses, unamortized deferred charges,
unamortized debt discount and capitalized research and development costs.


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


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


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (b) any
 Interest Period that begins on the last Business Day of a calendar month (or
 on a day for which there is no numerically corresponding day in the calendar
 month at the end of such Interest Period) shall end on the last Business Day
 of the calendar month at the end of such Interest Period; and

 
	
  

 	
  

 
	
  

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

 


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


16





          “IP
Rights” has the meaning specified in Section 5.17.


          “IRS”
means the United States Internal Revenue Service.


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


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


          “Joint
Bookrunner” means Merrill Lynch, Pierce, Fenner & Smith Incorporated,
J.P. Morgan Securities Inc. and Wells Fargo Securities, LLC, each in its
capacity as a joint Bookrunner on the cover page to this Agreement.


          “Joint
Lead Arrangers” means Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities Inc. and Wells Fargo Securities, LLC, each
in its capacity as a joint Lead Arranger on the cover page to this Agreement. 


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


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


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


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


          “L/C
Issuer” means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor to Bank of America as issuer of Letters of
Credit hereunder, and any other Lender which is also an issuer of Letters of
Credit hereunder. 


          “L/C
Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in 


17





accordance with Section 1.09. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by
its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be
“outstanding” in the amount so remaining available to be drawn.


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


          “Lender-Provided
Swap Contract” means a Swap Contract not prohibited under Section 7.03(g)
of this Agreement and entered into by the Company (and/or one or more
Designated Borrowers or Guarantors) with a Lender or an Affiliate of a Lender,
as to which written notice of the existence thereof has been provided by such
Lender to the Administrative Agent.


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


          “Letter
of Credit” means any standby or commercial letter of credit issued
hereunder and shall include the Existing Letters of Credit. Letters of Credit
may be issued in Dollars or in an Alternative Currency.


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


          “Letter
of Credit Expiration Date” means the day that is one (1) year after the
Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).


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


          “Letter
of Credit Sublimit” means an amount equal to Two Hundred Million Dollars
($200,000,000.00). The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Commitments.


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


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


          “Loan
Documents” means this Agreement, each Designated Borrower Request and
Assumption Agreement, each Note, each Issuer Document, the Fee Letters and the
Guaranty. 


          “Loan
Parties” means, collectively, the Company, each Subsidiary Guarantor and
each Designated Borrower.


18





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


          “Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual
or contingent), or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of any
Loan Party to perform its material obligations under any Loan Document to which
it is a party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to
which it is a party.


          “Material
Subsidiary” means (a) Curtiss-Wright Controls, Inc., Metal Improvement
Company, LLC, Curtiss-Wright Flow Control Corporation, Curtiss-Wright Flow
Control Service Corporation, Curtiss-Wright Electro-Mechanical Corporation, DY
4 Systems, Inc., Curtiss-Wright Antriebstechnik GmbH, Tapco International,
Inc., Benshaw, Inc., DY4 Inc. and Curtiss-Wright Surface Technologies, LLC, and
(b) any other Subsidiary of the Company (i) which together with its
Subsidiaries (determined on a consolidated basis), has assets with a book value
greater than or equal to 20% of the total assets of the Company and its
Subsidiaries on a consolidated basis, as of the end of the most recently
completed fiscal quarter for which financial information is then available,
(ii) which, together with its Subsidiaries (determined on a consolidated
basis), has greater than 20% of the net revenues of the Company and
Subsidiaries on a consolidated basis for the most recent fiscal quarter for
which financial information is then available, all determined in accordance
with GAAP, or (iii) designated as a Material Subsidiary pursuant to Section
7.12, or a wholly-owned Subsidiary of the Borrower that is reasonably
acceptable to the Administrative Agent and that becomes a Designated Borrower
pursuant to Section 2.14(b).


          “Maturity
Date” means August 9, 2017; provided, however, that if such date is not a
Business Day, the Maturity Date shall be the next preceding Business Day.


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


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


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


          “Non-Extension
Notice Date” has the meaning specified in Section 2.03(b)(iii).


          “Non-Reinstatement
Deadline” has the meaning specified in Section 2.03(b)(iv).


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


19





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


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


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


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


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


          “Overnight
Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate
determined by the 


20





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


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


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


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


          “PBGC”
means the Pension Benefit Guaranty Corporation.


          “Pension
Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to
Title IV of ERISA and is sponsored or maintained by the Company or any ERISA
Affiliate or to which the Company or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.


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


          “Plan”
means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Company or, with respect to any such plan that is
subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate. 


          “Platform”
has the meaning specified in Section 6.02.


          “Prior
Agreement” has the meaning specified in the introductory paragraphs hereto.


          “Private
Placement” means each of the 5.74% Series B Senior Guaranteed Notes due
September 25, 2013 in the original principal amount of $125,000,000.00, the
5.51% Series C Senior Guaranteed Notes due December 1, 2017 in the original
principal amount of $150,000,000.00, the 3.84% Series D Senior Guaranteed Notes
due December 1, 2021 in the original principal amount of $100,000,000.00 and
the 4.24% Series E Senior Guaranteed Notes due December 1, 2026 in the original
principal amount of $200,000,000.00, and each of the term notes issued pursuant
to a private placement of Additional Indebtedness.


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


          “Purchase
Money Security Interest” has the meaning specified in Section 7.01(i).


21





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


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


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


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


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


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


          “Responsible
Officer” means the chief executive officer, president, chief financial
officer, corporate controller, corporate secretary, assistant secretary,
treasurer or assistant treasurer of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.


          “Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity
Interest of the Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Company’s stockholders, partners or members
(or the equivalent Person thereof).


          “Revaluation
Date” means (a) with respect to any Loan, each of the following: (i) each
date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative
Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan
denominated in an Alternative Currency pursuant to Section 2.02(a), and
(iii) such additional dates as the Administrative Agent shall determine or the
Required Lenders shall require; and (b) with respect to any Letter of Credit,
each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Alternative Currency, (ii) each date of an amendment of any
such Letter of Credit having the 


22





effect of increasing the amount thereof (solely with respect to the
increased amount), (iii) each date of any payment by the L/C Issuer under any
Letter of Credit denominated in an Alternative Currency, (iv) in the case of
the Existing Letters of Credit, as set forth on Schedule 1.01(A), and
(v) such additional dates as the Administrative Agent or the L/C Issuer shall
determine or the Required Lenders shall require. 


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


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


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


          “Shareholders’
Equity” means, as of any date of determination, consolidated shareholders’
equity of the Company and its Subsidiaries as of that date determined in
accordance with GAAP.


          “SPC”
has the meaning specified in Section 10.06(g).


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


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


          “Sterling”
and “£” mean the lawful currency of the United Kingdom.


          “Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or 


23





indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise specified, all references herein to a “Subsidiary” or to
“Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.


          “Subsidiary
Guarantors” means, collectively, any Subsidiary that is or becomes party to
a Subsidiary Guaranty pursuant to Section 6.13; provided,
however, that the term “Subsidiary Guarantors” shall not include any Foreign
Subsidiary that is not required to become a party to a Subsidiary Guaranty
pursuant to Section 6.13.


          “Subsidiary
Guaranty” means the Subsidiary Guaranty made by the Subsidiary Guarantors
in favor of the Administrative Agent and the Lenders, substantially in the form
of Exhibit G. 


          “Substantial
Portion” means, with respect to the properties of the Company and its
consolidated Subsidiaries, property which (a) represents more than 20% of the
consolidated assets of the Company and its Subsidiaries, as would be shown in
the consolidated financial statements of the Company and its Subsidiaries as at
the end of the fiscal quarter next preceding the date on which such
determination is made, or (b) is responsible for more than 10% of the
consolidated net revenues or of the Consolidated Net Income of the Company and
its Subsidiaries for the 12-month period ending as of the end of the fiscal
quarter next preceding the date of determination. For purposes of the
calculation of Consolidated Net Income for purposes of the definition of
Substantial Portion only, there shall be excluded therefrom any extraordinary
gains and gains from discontinued operations during such period and there shall
be included therein any extraordinary losses and losses from discontinued
operations during such period.


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


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


24





other readily available quotations provided by any recognized dealer in
such Swap Contracts (which may include a Lender or any Affiliate of a Lender).


          “Swing
Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.


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


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


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


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


          “Swing
Line Sublimit” means an amount equal to the lesser of (a) Fifty Million
Dollars ($50,000,000.00) and (b) the Aggregate Commitments. The Swing Line
Sublimit is part of, and not in addition to, the Aggregate Commitments.


          “Syndication
Agents” has the meaning specified in the introductory paragraph hereto.


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


          “TARGET
Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system
ceases to be operative, such other payment system (if any) determined by
the Administrative Agent to be a suitable replacement) is open for the
settlement of payments in Euro.


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


          “Threshold
Amount” means $20,000,000.00.


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


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


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


25





          “Unfunded
Pension Liabilities” means the excess of a Pension Plan’s benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan’s assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.


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


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


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


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


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


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


	
  

 	
  

 
	
  

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

 


26









	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 


          1.03
Accounting Terms. (a) Generally. All accounting
terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements, except as otherwise
specifically prescribed herein.


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


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


          1.05
Exchange Rates; Currency Equivalents. (a) The
Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot
Rates as of each Revaluation Date to be used for calculating Dollar Equivalent
amounts of Credit Extensions and Outstanding Amounts denominated in Alternative
Currencies. Such Spot Rates shall become effective as of such Revaluation Date
and shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur. Except for
purposes of financial statements delivered by Loan Parties hereunder or
calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes
of the Loan Documents shall be such Dollar Equivalent amount as so determined
by the Administrative Agent or the L/C Issuer, as applicable.


          (b)
Wherever in this Agreement in connection with a Committed Borrowing,
conversion, continuation or prepayment of a Eurocurrency Rate Loan or the
issuance, amendment or extension of a Letter of Credit, an amount, such as a
required minimum or


27





multiple amount, is expressed in Dollars, but such Committed Borrowing,
Eurocurrency Rate Loan or Letter of Credit is denominated in an Alternative
Currency, such amount shall be the relevant Alternative Currency Equivalent of
such Dollar amount (rounded to the nearest unit of such Alternative Currency,
with 0.5 of a unit being rounded upward), as determined by the Administrative
Agent or the L/C Issuer, as the case may be.


          1.06
Additional Alternative Currencies. 


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


          (b) Any
such request shall be made to the Administrative Agent not later than 2:00
p.m., four (4) Business Days prior to the date of the desired Credit Extension
(or such other time or date as may be agreed by the Administrative Agent and,
in the case of any such request pertaining to Letters of Credit, the L/C
Issuer, in its or their sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly
notify each Lender thereof; and in the case of any such request pertaining to
Letters of Credit, the Administrative Agent shall promptly notify the L/C
Issuer thereof. Each Lender (in the case of any such request pertaining to
Eurocurrency Rate Loans) or the L/C Issuer (in the case of a request pertaining
to Letters of Credit) shall notify the Administrative Agent, not later than
2:00 p.m., one (1) Business Day after receipt of such request whether it
consents, in its sole discretion, to the making of Eurocurrency Rate Loans or
the issuance of Letters of Credit, as the case may be, in such requested
currency. 


          (c) Any
failure by a Lender or the L/C Issuer, as the case may be, to respond to such
request within the time period specified in the preceding sentence shall be
deemed to be a refusal by such Lender or the L/C Issuer, as the case may be, to
permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued in
such requested currency. If the Administrative Agent and all the Lenders
consent to making Eurocurrency Rate Loans in such requested currency, the
Administrative Agent shall so notify the Company and such currency shall
thereupon be deemed for all purposes to be an Alternative Currency hereunder
for purposes of any Committed Borrowings of Eurocurrency Rate Loans; and if the
Administrative Agent and the L/C Issuer consent to the issuance of Letters of
Credit in such requested currency, the Administrative Agent shall so notify the
Company and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Letter of Credit issuances.
If the Administrative Agent shall fail to obtain consent to any request for an
additional currency under this Section 1.06, the Administrative Agent
shall promptly so notify the Company. Any
specified currency of an Existing Letter of Credit that is neither Dollars nor
one of the Alternative Currencies specifically listed in the definition of
“Alternative Currency” shall be deemed an Alternative Currency with respect to
such Existing Letter of Credit only.


28





          1.07
Change of Currency. 


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


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


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


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


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


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


          2.01
Committed Loans. Subject to the terms and conditions
set forth herein, each Lender severally agrees to make loans (each such loan, a
“Committed Loan”) to the Borrowers in Dollars or in one or more
Alternative Currencies from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Commitment; provided, however,
that after giving effect to any Committed Borrowing, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender’s


29





 Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Commitment. Within the
limits of each Lender’s Commitment, and subject to the other terms and
conditions hereof, the Borrowers may borrow under this Section 2.01,
prepay under Section 2.05, and reborrow under this Section 2.01.
Committed Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further
provided herein. 


          2.02
Borrowings, Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans from one
Type to the other, and each continuation of Eurocurrency Rate Loans shall be
made upon the Company’s irrevocable notice to the Administrative Agent, which
may be given by facsimile or telephone. Each such notice must be received by
the Administrative Agent not later than 1:00 p.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation
of Eurocurrency Rate Loans denominated in Dollars or of any conversion of
Eurocurrency Rate Loans denominated in Dollars to Base Rate Committed Loans,
(ii) four (4) Business Days (or five Business Days in the case of a
Special Notice Currency) prior to the requested date of any Borrowing or
continuation of Eurocurrency Rate Loans denominated in Alternative Currencies,
and (iii) on the requested date of any Borrowing of Base Rate Committed
Loans. Each telephonic notice by the Company pursuant to this Section
2.02(a) must be confirmed promptly by delivery to the Administrative Agent
of a written Committed Loan Notice, appropriately completed and signed by a
Responsible Officer of the Company. Each Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans shall be in a principal amount of
$5,000,000.00 or a whole multiple of $1,000,000.00 in excess thereof. Except as
provided in Sections 2.03(c) and 2.04(c), each Committed
Borrowing of or conversion to Base Rate Committed Loans shall be in a principal
amount of $500,000.00 or a whole multiple of $100,000.00 in excess thereof.
Each Committed Loan Notice (whether telephonic or written) shall specify
(i) whether the Company is requesting a Committed Borrowing, a conversion
of Committed Loans from one Type to the other, or a continuation of
Eurocurrency Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Committed Loans to be borrowed, converted or
continued, (iv) the Type of Committed Loans to be borrowed or to which
existing Committed Loans are to be converted, (v) if applicable, the
duration of the Interest Period with respect thereto, (vi) the currency of
the Committed Loans to be borrowed, and (vii) if applicable, the Designated
Borrower. If the Company fails to specify a currency in a Committed Loan Notice
requesting a Borrowing, then the Committed Loans so requested shall be made in
Dollars. If the Company fails to specify a Type of Committed Loan in a
Committed Loan Notice or if the Company fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed Loans
shall be made as, or converted to, Base Rate Loans; provided, however,
that in the case of a failure to timely request a continuation of Committed
Loans denominated in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest Period of
one month. Any automatic conversion to Base Rate Loans shall be effective as of
the last day of the Interest Period then in effect with respect to the
applicable Eurocurrency Rate Loans. If the Company requests a Borrowing of,
conversion to, or continuation of Eurocurrency Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. No Committed Loan may be converted
into or continued as a Committed Loan denominated in a different currency, but
instead must be prepaid in the original currency of such Committed Loan and
reborrowed in the other currency. 


30





          (b)
Following receipt of a Committed Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount (and currency) of its Applicable
Percentage of the applicable Committed Loans, and if no timely notice of a
conversion or continuation is provided by the Company, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base
Rate Loans or continuation of Committed Loans denominated in a currency other
than Dollars, in each case as described in the preceding subsection. In the case
of a Committed Borrowing, each Lender shall make the amount of its Committed
Loan available to the Administrative Agent in Same Day Funds at the
Administrative Agent’s Office for the applicable currency not later than 2:00
p.m., in the case of any Committed Loan denominated in Dollars, and not later
than the Applicable Time specified by the Administrative Agent in the case of
any Committed Loan in an Alternative Currency, in each case on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing
is the initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the Company or the other
applicable Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of such Borrower on the books of Bank
of America with the amount of such funds or (ii) wire transfer of such
funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Company; provided, however,
that if, on the date the Committed Loan Notice with respect to such Borrowing
denominated in Dollars is given by the Company, there are L/C Borrowings outstanding,
then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such L/C Borrowings, and, second, shall be made
available to the applicable Borrower as provided above.


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


          (d) The
Administrative Agent shall promptly notify the Company and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans
upon determination of such interest rate. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Company and the Lenders
of any change in Bank of America’s prime rate used in determining the Base Rate
promptly following the public announcement of such change.


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


31






          2.03 Letters of Credit.


	
  

 	
  

 	
  

 
	
  

 	
 (a) The Letter of Credit Commitment.

 
	
  

 	
  

 	
  

 
	
  

 	
           (i)
 Subject to the terms and conditions set forth herein, (A) the L/C Issuer
 agrees, in reliance upon the agreements of the Lenders set forth in this Section
 2.03, (1) from time to time on any Business Day during the period from
 the Closing Date until the Maturity Date, to issue Letters of Credit
 denominated in Dollars or in one or more Alternative Currencies for the
 account of the Company or its Subsidiaries, and to amend or extend Letters of
 Credit previously issued by it, in accordance with subsection (b) below, and
 (2) to honor drawings under the Letters of Credit; and (B) the Lenders
 severally agree to participate in Letters of Credit issued for the account of
 the Company or its Subsidiaries and any drawings thereunder; provided
 that after giving effect to any L/C Credit Extension with respect to any
 Letter of Credit, (x) the Total Outstandings shall not exceed the
 Aggregate Commitments, (y) the aggregate Outstanding Amount of the
 Committed Loans of any Lender, plus such Lender’s Applicable
 Percentage of the Outstanding Amount of all L/C Obligations, plus such
 Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
 Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding
 Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit.
 Each request by the Company for the issuance or amendment of a Letter of
 Credit shall be deemed to be a representation by the Company that the L/C
 Credit Extension so requested complies with the conditions set forth in the
 provisos to the preceding sentence. Within the foregoing limits, and subject
 to the terms and conditions hereof, the Company’s ability to obtain Letters
 of Credit shall be fully revolving, and accordingly the Company may, during
 the foregoing period, obtain Letters of Credit to replace Letters of Credit
 that have expired or that have been drawn upon and reimbursed. All Existing
 Letters of Credit shall be deemed to have been issued pursuant hereto, and
 from and after the Closing Date shall be subject to and governed by the terms
 and conditions hereof.

 
	
  

 	
  

 	
  

 
	
  

 	
           (ii) The
 L/C Issuer shall not issue or amend any Letter of Credit, if the expiry date
 of such requested or amended Letter of Credit would occur after the Letter of
 Credit Expiration Date, unless all the Lenders have approved such expiry
 date.

 
	
  

 	
  

 	
  

 
	
  

 	
           (iii) The
 L/C Issuer shall not be under any obligation to issue any Letter of Credit
 if: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

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

 


32









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 expense which was not applicable on the Closing Date and which the
 L/C Issuer in good faith deems material to it;

 
	
  

 	
  

 	
  

 
	
  

 	
  

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

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (C)
 [reserved]; 

 
	
  

 	
  

 	
  

 
	
  

 	
  

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

 
	
  

 	
  

 	
  

 
	
  

 	
  

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

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (F) such Letter of Credit contains any
 provisions for automatic reinstatement of the stated amount after any drawing
 thereunder; or 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (G) a
 default of any Lender’s obligations to fund under Section 2.03(c)
 exists or any Lender is at such time a Defaulting Lender hereunder, unless
 the L/C Issuer has entered into arrangements reasonably satisfactory to the
 L/C Issuer with the Company or such Lender to eliminate the L/C Issuer’s risk
 with respect to such Lender. 

 
	
  

 	
  

 	
  

 
	
  

 	
           (iv) The
 L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not
 be permitted at such time to issue such Letter of Credit in its amended form
 under the terms hereof.

 
	
  

 	
  

 
	
  

 	
           (v) The
 L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
 the L/C Issuer would have no obligation at such time to issue such Letter of
 Credit in its amended form under the terms hereof, or (B) the beneficiary of
 such Letter of Credit does not accept the proposed amendment to such Letter
 of Credit.

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

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

 
	
  

 	
  

 	
  

 
	
  

 	
           (i) Each
 Letter of Credit shall be issued or amended, as the case may be, upon the
 request of the Company delivered to the L/C Issuer (with a copy to the
 Administrative 

 


33









	
  

 	
  

 
	
  

 	
 Agent) in the form of a Letter of Credit Application, appropriately
 completed and signed by a Responsible Officer of the Company. Such Letter of
 Credit Application must be received by the L/C Issuer and the Administrative
 Agent (A) not later than 2:00 p.m. at least two Business Days prior to the
 proposed issuance date or date of amendment, as the case may be, of any
 Letter of Credit denominated in Dollars, and (B) not later than 2:00 p.m. at
 least three Business Days prior to the proposed issuance date or date of
 amendment, as the case may be, of any Letter of Credit denominated in an
 Alternative Currency; or in each case such later date and time as the
 Administrative Agent and the L/C Issuer may agree in a particular instance in
 their sole discretion. In the case of a request for an initial issuance of a
 Letter of Credit, such Letter of Credit Application shall specify in form and
 detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the
 requested Letter of Credit (which shall be a Business Day); (B) the amount
 and currency thereof; (C) the expiry date thereof; (D) the name and address
 of the beneficiary thereof; (E) the documents to be presented by such
 beneficiary in case of any drawing thereunder; (F) the full text of any
 certificate to be presented by such beneficiary in case of any drawing
 thereunder; and (G) such other matters as the L/C Issuer may require. In the
 case of a request for an amendment of any outstanding Letter of Credit, such
 Letter of Credit Application shall specify in form and detail satisfactory to
 the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date
 of amendment thereof (which shall be a Business Day); (C) the nature of the
 proposed amendment; and (D) such other matters as the L/C Issuer may require.
 Additionally, the Company shall furnish to the L/C Issuer and the
 Administrative Agent such other documents and information pertaining to such
 requested Letter of Credit issuance or amendment, including any Issuer
 Documents, as the L/C Issuer or the Administrative Agent may require.

 
	
  

 	
  

 
	
  

 	
           (ii)
 Promptly after receipt of any Letter of Credit Application, the L/C Issuer
 will confirm with the Administrative Agent (by telephone or in writing) that
 the Administrative Agent has received a copy of such Letter of Credit
 Application from the Company and, if not, the L/C Issuer will provide the
 Administrative Agent with a copy thereof. Unless the L/C Issuer has received
 written notice from any Lender, the Administrative Agent or any Loan Party,
 at least one Business Day prior to the requested date of issuance or
 amendment of the applicable Letter of Credit, that one or more applicable
 conditions contained in Article IV shall not then be satisfied, then,
 subject to the terms and conditions hereof, the L/C Issuer shall, on the
 requested date, issue a Letter of Credit for the account of the Company (or
 the applicable Subsidiary) or enter into the applicable amendment, as the
 case may be, in each case in accordance with the L/C Issuer’s usual and
 customary business practices. Immediately upon the issuance of each Letter of
 Credit, each Lender shall be deemed to, and hereby irrevocably and
 unconditionally agrees to, purchase from the L/C Issuer a risk participation
 in such Letter of Credit in an amount equal to the product of such Lender’s
 Applicable Percentage times the amount of such Letter of Credit.

 
	
  

 	
  

 
	
  

 	
           (iii) If
 the Company so requests in any applicable Letter of Credit Application, the
 L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter
 of Credit that has automatic extension provisions (each, an “Auto-Extension
 Letter of Credit”); provided that any such Auto-Extension Letter
 of Credit must permit the L/C Issuer to prevent any such extension at least
 once in each twelve-month period (commencing with

 


34









	
  

 	
  

 
	
  

 	
 the date of issuance of such Letter of Credit) by giving prior notice
 to the beneficiary thereof not later than a day (the “Non-Extension Notice
 Date”) in each such twelve-month period to be agreed upon at the time
 such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer,
 the Company shall not be required to make a specific request to the L/C
 Issuer for any such extension. Once an Auto-Extension Letter of Credit has
 been issued, the Lenders shall be deemed to have authorized (but may not
 require) the L/C Issuer to permit the extension of such Letter of Credit at
 any time to an expiry date not later than the Letter of Credit Expiration
 Date; provided, however, that the L/C Issuer shall not permit
 any such extension if (A) the L/C Issuer has determined that it would not be
 permitted, or would have no obligation, at such time to issue such Letter of
 Credit in its revised form (as extended) under the terms hereof (by reason of
 the provisions of clause (ii) or (iii) of Section 2.03(a) or
 otherwise), or (B) it has received notice (which may be by telephone or in
 writing) on or before the day that is five (5) Business Days before the
 Non-Extension Notice Date (1) from the Administrative Agent that the Required
 Lenders have elected not to permit such extension or (2) from the
 Administrative Agent, any Lender or the Company that one or more of the
 applicable conditions specified in Section 4.02 is not then satisfied,
 and in each such case directing the L/C Issuer not to permit such extension.

 
	
  

 	
  

 
	
  

 	
           (iv) If
 the Company so requests in any applicable Letter of Credit Application, the
 L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter
 of Credit that permits the automatic reinstatement of all or a portion of the
 stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement
 Letter of Credit”). Unless otherwise directed by the L/C Issuer, the
 Company shall not be required to make a specific request to the L/C Issuer to
 permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has
 been issued, except as provided in the following sentence, the Lenders shall
 be deemed to have authorized (but may not require) the L/C Issuer to
 reinstate all or a portion of the stated amount thereof in accordance with
 the provisions of such Letter of Credit. Notwithstanding the foregoing, if
 such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to
 reinstate all or any portion of the stated amount thereof after a drawing
 thereunder by giving notice of such non-reinstatement within a specified
 number of days after such drawing (the “Non-Reinstatement Deadline”),
 the L/C Issuer shall not permit such reinstatement if it has received a
 notice (which may be by telephone or in writing) on or before the day that is
 seven (7) Business Days before the Non-Reinstatement Deadline (A) from the
 Administrative Agent that the Required Lenders have elected not to permit
 such reinstatement or (B) from the Administrative Agent, any Lender or the Company
 that one or more of the applicable conditions specified in Section 4.02
 is not then satisfied (treating such reinstatement as an L/C Credit Extension
 for purposes of this clause) and, in each case, directing the L/C Issuer not
 to permit such reinstatement.

 
	
  

 	
  

 
	
  

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

 


35









	
  

 	
  

 
	
  

 	
 (c) Drawings
 and Reimbursements; Funding of Participations.

 
	
  

 	
  

 
	
  

 	
           (i) Upon
 receipt from the beneficiary of any Letter of Credit of any notice of a
 drawing under such Letter of Credit, the L/C Issuer shall notify the Company
 and the Administrative Agent thereof. In the case of a Letter of Credit
 denominated in an Alternative Currency, the Company shall reimburse the L/C
 Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its
 option) shall have specified in such notice that it will require
 reimbursement in Dollars, or (B) in the absence of any such requirement for
 reimbursement in Dollars, the Company shall have notified the L/C Issuer
 promptly following receipt of the notice of drawing that the Company will
 reimburse the L/C Issuer in Dollars. In the case of any such reimbursement in
 Dollars of a drawing under a Letter of Credit denominated in an Alternative
 Currency, the L/C Issuer shall notify the Company of the Dollar Equivalent of
 the amount of the drawing promptly following the determination thereof. Not
 later than 2:00 p.m. on the date of any payment by the L/C Issuer under a
 Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the
 date of any payment by the L/C Issuer under a Letter of Credit to be
 reimbursed in an Alternative Currency (each such date, an “Honor Date”),
 the Borrowers shall reimburse the L/C Issuer through the Administrative Agent
 in an amount equal to the amount of such drawing and in the applicable
 currency. If the Borrowers fail to so reimburse the L/C Issuer by such time
 the Administrative Agent shall promptly notify each Lender of the Honor Date,
 the amount of the unreimbursed drawing (expressed in Dollars in the amount of
 the Dollar Equivalent thereof in the case of a Letter of Credit denominated
 in an Alternative Currency) (the “Unreimbursed Amount”), and the
 amount of such Lender’s Applicable Percentage thereof. In such event, the
 Company shall be deemed to have requested a Committed Borrowing of Base Rate
 Loans to be disbursed on the Honor Date in an amount equal to the
 Unreimbursed Amount, without regard to the minimum and multiples specified in
 Section 2.02 for the principal amount of Base Rate Loans, but subject
 to the amount of the unutilized portion of the Aggregate Commitments and the
 conditions set forth in Section 4.02 (other than the delivery of a
 Committed Loan Notice). Any notice given by the L/C Issuer or the
 Administrative Agent pursuant to this Section 2.03(c)(i) may be given
 by telephone if immediately confirmed in writing; provided that the
 lack of such an immediate confirmation shall not affect the conclusiveness or
 binding effect of such notice. 

 
	
  

 	
  

 
	
  

 	
           (ii) Each
 Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds
 available to the Administrative Agent for the account of the L/C Issuer, in
 Dollars, at the Administrative Agent’s Office for Dollar-denominated payments
 in an amount equal to its Applicable Percentage of the Unreimbursed Amount
 not later than 3:00 p.m. on the Business Day specified in such notice by the
 Administrative Agent, whereupon, subject to the provisions of Section
 2.03(c)(iii), each Lender that so makes funds available shall be deemed
 to have made a Base Rate Committed Loan to the Company in such amount. The
 Administrative Agent shall remit the funds so received to the L/C Issuer in
 Dollars.

 
	
  

 	
  

 
	
  

 	
           (iii)
 With respect to any Unreimbursed Amount that is not fully refinanced by a
 Committed Borrowing of Base Rate Loans because the conditions set forth in Section
 4.02 cannot be satisfied or for any other reason, the Company shall be
 deemed to have 

 


36









	
  

 	
  

 
	
  

 	
 incurred from the L/C Issuer an L/C Borrowing in the amount of the
 Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be
 due and payable on demand (together with interest) and shall bear interest at
 the Default Rate. In such event, each Lender’s payment to the Administrative
 Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)
 shall be deemed payment in respect of its participation in such L/C Borrowing
 and shall constitute an L/C Advance from such Lender in satisfaction of its
 participation obligation under this Section 2.03.

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (vi) If
 any Lender fails to make available to the Administrative Agent for the
 account of the L/C Issuer any amount required to be paid by such Lender
 pursuant to the foregoing provisions of this Section 2.03(c) by the
 time specified in Section 2.03(c)(ii), the L/C Issuer shall be
 entitled to recover from such Lender (acting through the Administrative
 Agent), on demand, such amount with interest thereon for the period from the
 date such payment is required to the date on which such payment is
 immediately available to the L/C Issuer at a rate per annum equal to the
 applicable Overnight Rate from time to time in effect, plus any reasonable and
 customary administrative, processing or similar fees charged by the L/C
 Issuer in connection with the foregoing. If such Lender pays such amount
 (with interest and fees as aforesaid), the amount so paid shall constitute
 such Lender’s Committed Loan included in the relevant Committed Borrowing or
 L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A
 certificate of the L/C Issuer submitted to any Lender (through the
 Administrative Agent) with respect to any amounts owing under this clause
 (vi) shall be conclusive absent manifest error.

 
	
  

 	
  

 
	
  

 	
 (d) Repayment of Participations. 

 
	
  

 	
  

 
	
  

 	
           (i) At
 any time after the L/C Issuer has made a payment under any Letter of Credit
 and has received from any Lender such Lender’s L/C Advance in respect of such

 


37









	
  

 	
  

 
	
  

 	
 payment in accordance with Section 2.03(c), if the
 Administrative Agent receives for the account of the L/C Issuer any payment
 in respect of the related Unreimbursed Amount or interest thereon (whether
 directly from the Company or otherwise, including proceeds of Cash Collateral
 applied thereto by the Administrative Agent), the Administrative Agent will
 distribute to such Lender its Applicable Percentage thereof (appropriately
 adjusted, in the case of interest payments, to reflect the period of time
 during which such Lender’s L/C Advance was outstanding) in Dollars and in the
 same funds as those received by the Administrative Agent.

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
           (e) Obligations
 Absolute. The obligation of the Company to reimburse the L/C Issuer
 for each drawing under each Letter of Credit and to repay each L/C Borrowing
 shall be absolute, unconditional and irrevocable, and shall be paid strictly
 in accordance with the terms of this Agreement under all circumstances,
 including the following:

 
	
  

 	
  

 
	
  

 	
           (i) any
 lack of validity or enforceability of such Letter of Credit, this Agreement,
 or any other Loan Document;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (iii) any
 draft, demand, certificate or other document presented under such Letter of
 Credit proving to be forged, fraudulent, invalid or insufficient in any
 respect or any statement therein being untrue or inaccurate in any respect;
 or any loss or delay in the transmission or otherwise of any document
 required in order to make a drawing under such Letter of Credit;

 
	
  

 	
  

 
	
  

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

 


38









	
  

 	
  

 
	
  

 	
 beneficiary or any transferee of such Letter of Credit, including any
 arising in connection with any proceeding under any Debtor Relief Law;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

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

 
	
  

 	
  

 
	
           (f) Role
 of L/C Issuer. Each Lender and the Company agree that,
 in paying any drawing under a Letter of Credit, the L/C Issuer shall not have
 any responsibility to obtain any document (other than any sight draft,
 certificates and documents expressly required by the Letter of Credit) or to
 ascertain or inquire as to the validity or accuracy of any such document or
 the authority of the Person executing or delivering any such document. None
 of the L/C Issuer, the Administrative Agent, any of their respective Related
 Parties nor any correspondent, participant or assignee of the L/C Issuer
 shall be liable to any Lender for (i) any action taken or omitted in
 connection herewith at the request or with the approval of the Lenders or the
 Required Lenders, as applicable; (ii) any action taken or omitted in the
 absence of gross negligence or willful misconduct; or (iii) the due
 execution, effectiveness, validity or enforceability of any document or
 instrument related to any Letter of Credit or Issuer Document. The Company
 hereby assumes all risks of the acts or omissions of any beneficiary or
 transferee with respect to its use of any Letter of Credit; provided, however,
 that this assumption is not intended to, and shall not, preclude the
 Company’s pursuing such rights and remedies as it may have against the
 beneficiary or transferee at law or under any other agreement. None of the
 L/C Issuer, the Administrative Agent, any of their respective Related Parties
 nor any correspondent, participant or assignee of the L/C Issuer shall be
 liable or responsible for any of the matters described in clauses (i) through
 (v) of Section 2.03(e); provided, however, that anything
 in such clauses to the contrary notwithstanding, the Company may have a claim
 against the L/C Issuer, and the L/C Issuer may be liable to the Company, to
 the extent, but only to the extent, of any direct, as opposed to
 consequential or exemplary, damages suffered by the Company which the Company
 proves were caused by the L/C Issuer’s willful misconduct or gross negligence
 or the L/C Issuer’s willful failure to pay under any Letter of Credit after
 the presentation to it by the beneficiary of a sight draft and certificate(s)
 strictly complying with the terms and conditions of a Letter of Credit. In
 furtherance and not in limitation of the foregoing, the L/C Issuer may accept
 documents that appear on their face to be in order, without responsibility
 for further investigation, regardless of any notice or information to the
 contrary, and the L/C Issuer shall not be responsible for the validity or
 sufficiency of any instrument transferring or assigning or purporting to
 transfer or assign a Letter of Credit or the rights or benefits thereunder or
 proceeds thereof, in whole or in part, which may prove to be invalid or
 ineffective for any reason.

 


39









	
  

 	
  

 
	
           (g) Cash
 Collateral. (A) Upon the request of the Administrative Agent, if the L/C
 Issuer has honored any full or partial drawing request under any Letter of
 Credit and such drawing has resulted in an L/C Borrowing, (B) if, as of the
 Maturity Date, any L/C Obligation for any reason remains outstanding, or (C)
 if required under Section 2.16(a)(v) to reduce the L/C Issuers’
 Fronting Exposure, the Company shall, in each case, immediately Cash
 Collateralize the then Outstanding Amount of all L/C Obligations or the L/C
 Issuers’ Fronting Exposure, as applicable (without duplication of any Cash
 Collateral applied pursuant to Section 2.16(a)(ii)).

 
	
  

 	
  

 
	
  

 	
           (i) In
 addition, if the Administrative Agent notifies the Company at any time that
 the Outstanding Amount of all L/C Obligations (after taking into account all
 Cash Collateral then being held) at such time exceeds 105% of the Letter of Credit Sublimit then in effect, then,
 within two Business Days after receipt of such notice, the Company shall Cash
 Collateralize the L/C Obligations in an amount equal to the amount by which
 the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit
 Sublimit.

 
	
  

 	
  

 
	
  

 	
           (ii) The
 Administrative Agent may, at any time and from time to time after the initial
 deposit of Cash Collateral pursuant to this Section 2.03(g), request
 that additional Cash Collateral be provided in order to protect against the
 results of exchange rate fluctuations.

 
	
  

 	
  

 
	
  

 	
           (iii) Sections
 2.05(c), 2.16(a)(ii) and 8.02(c) set forth certain
 additional requirements to deliver or apply Cash Collateral hereunder. For
 purposes of this Section 2.03, Section 2.05(c), Section 2.16
 and Section 8.02(c), “Cash Collateralize” means to pledge and
 deposit with or deliver to the Administrative Agent, for the benefit of the
 L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or
 deposit account balances pursuant to documentation in form and substance
 satisfactory to the Administrative Agent and the L/C Issuer (which documents
 are hereby consented to by the Lenders). Derivatives of such term have
 corresponding meanings. The Company hereby grants to the Administrative
 Agent, for the benefit of the L/C Issuer and the Lenders, a security interest
 in all such cash, deposit accounts and all balances therein and all proceeds
 of the foregoing. Cash Collateral shall be maintained in blocked,
 non-interest bearing deposit accounts at Bank of America.

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
           (h) Applicability
 of ISP and UCP. Unless otherwise expressly agreed by the
 L/C Issuer and the Company when a Letter of Credit is issued (including any
 such agreement applicable to an Existing Letter of Credit), (i) the rules of
 the ISP shall apply to each standby 

 


40





Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
commercial Letter of Credit.


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


          (j) Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Company shall pay directly to the applicable L/C Issuer for Letters of Credit
issued after the date hereof for such L/C Issuer’s own account, in Dollars, a
fronting fee (i) with respect to each commercial Letter of Credit, in an amount
equal to 0.125% times the Dollar Equivalent of the amount of such Letter of
Credit, and payable upon the issuance thereof, (ii) with respect to any
amendment of a commercial Letter of Credit increasing the amount of such Letter
of Credit, at a rate separately agreed between the Company and the L/C Issuer,
computed on the Dollar Equivalent of the amount of such increase, and payable
upon the effectiveness of such amendment, and (iii) with respect to each
standby Letter of Credit, at the per annum rate of 0.125% computed on the
Dollar Equivalent of the daily amount available to be drawn under such Letter
of Credit on a quarterly basis in arrears, and due and payable on the first
Business Day after the end of each March, June, September and December in
respect of the most recently ended quarterly period (or portion thereof in the
case of the first payment), commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date
and thereafter on demand. For purposes of computing the daily amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.09. In addition, the
Company shall pay directly to the L/C Issuer for its own account, in Dollars,
the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of
credit as from time to time in effect. Such customary fees and standard costs
and charges are due and payable on demand and are nonrefundable.
Notwithstanding the foregoing, each Borrower agrees that, in addition to
regular invoicing, the L/C Issuer will send the Borrowers periodic summaries of
such amounts owed (which summaries may be sent by electronic means), not more
frequently than weekly. The Borrowers shall have four (4) Business Days after
the L/C Issuer’s delivery of such summary to reconcile, with the L/C Issuer’s
reasonable assistance, the amounts owed pursuant to such summary with the
Borrowers’ records. On the fourth (4th) Business Day after the L/C Issuer’s
delivery of such summary (for purposes hereof, the “Due Date”), the 


41





Administrative Agent (for the benefit of the L/C Issuer), or the L/C
Issuer, is hereby authorized to debit the amount shown as due in such summary
from such of the Company’s or any Borrower’s accounts with the Administrative
Agent as designated in writing by the Company or any Borrower (for purposes of
this Section, the “Designated Account”). The Company shall maintain
sufficient funds in the Designated Account to cover such debits; provided that
if sufficient funds are not maintained in the Designated Account on any Due
Date, then the Borrowers shall immediately make the required payment in
accordance with the L/C Issuer’s instructions. 


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


          (l) Letters
of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for
the account of, a Subsidiary, the Company shall be obligated to reimburse the
L/C Issuer hereunder for any and all drawings under such Letter of Credit. The
Company hereby acknowledges that the issuance of Letters of Credit for the
account of Subsidiaries inures to the benefit of the Company, and that the
Company’s business derives substantial benefits from the businesses of such
Subsidiaries.


          (m) Not
Bankers Acceptances. Nothing contained herein, shall be deemed to or shall
cause a Letter of Credit issued hereunder or an unreimbursed draw thereunder to
be or become a bankers acceptance.


          2.04
Swing Line Loans. (a) The Swing Line. Subject
to the terms and conditions set forth herein, the Swing Line Lender agrees, in
reliance upon the agreements of the other Lenders set forth in this Section
2.04, to make loans in Dollars (each such loan, a “Swing Line Loan”)
to the Company from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount
of the Swing Line Sublimit, notwithstanding the fact that such Swing Line
Loans, when aggregated with the Applicable Percentage of the Outstanding Amount
of Committed Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender’s Commitment; provided, however,
that after giving effect to any Swing Line Loan, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and provided,
further, that the Company shall not use the proceeds of any Swing Line
Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Company may borrow
under this Section 2.04, prepay under Section 2.05, and reborrow
under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan.
Immediately upon the making of a Swing Line Loan, each Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
Swing Line Lender a risk participation in such Swing Line Loan in an amount
equal to the product of such Lender’s Applicable Percentage times the
amount of such Swing Line Loan.


          (b) Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the Company’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which



42





may be given by telephone. Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 2:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed,
which shall be a minimum of $500,000.00 or a whole multiple of $100,000.00 in
excess thereof, and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Company. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line
Lender will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Administrative Agent (including at the request
of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line
Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan
as a result of the limitations set forth in the proviso to the first sentence
of Section 2.04(a), or (B) that one or more of the applicable conditions
specified in Article IV is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 3:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the Company at its office by
crediting the account of the Company on the books of the Swing Line Lender in
Same Day Funds. 


          (c)
Refinancing of Swing Line Loans.


	
  

 	
  

 
	
  

 	
           (i) The Swing
 Line Lender at any time in its sole and absolute discretion may request, on
 behalf of the Company (which hereby irrevocably authorizes the Swing Line
 Lender to so request on its behalf), that each Lender make a Base Rate
 Committed Loan in an amount equal to such Lender’s Applicable Percentage of
 the amount of Swing Line Loans then outstanding. Such request shall be made
 in writing (which written request shall be deemed to be a Committed Loan
 Notice for purposes hereof) and in accordance with the requirements of Section
 2.02, without regard to the minimum and multiples specified therein for
 the principal amount of Base Rate Loans, but subject to the unutilized
 portion of the Aggregate Commitments and the conditions set forth in Section
 4.02. The Swing Line Lender shall furnish the Company with a copy of the
 applicable Committed Loan Notice promptly after delivering such notice to the
 Administrative Agent. Each Lender shall make an amount equal to its
 Applicable Percentage of the amount specified in such Committed Loan Notice
 available to the Administrative Agent in Same Day Funds for the account of
 the Swing Line Lender at the Administrative Agent’s Office for
 Dollar-denominated payments not later than 2:00 p.m. on the day specified in
 such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii),
 each Lender that so makes funds available shall be deemed to have made a Base
 Rate Committed Loan to the Company in such amount. The Administrative Agent
 shall remit the funds so received to the Swing Line Lender.

 
	
  

 	
  

 
	
  

 	
           (ii) If
 for any reason any Swing Line Loan cannot be refinanced by such a Committed
 Borrowing in accordance with Section 2.04(c)(i), the request for Base
 Rate Committed Loans submitted by the Swing Line Lender as set forth herein shall
 be deemed to be a request by the Swing Line Lender that each of the Lenders
 fund its risk 

 


43









	
  

 	
  

 
	
  

 	
 participation in the relevant Swing Line Loan and each Lender’s
 payment to the Administrative Agent for the account of the Swing Line Lender
 pursuant to Section 2.04(c)(i) shall be deemed payment in respect of
 such participation.

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
 (d) Repayment of Participations. 

 
	
  

 	
  

 
	
  

 	
           (i) At
 any time after any Lender has purchased and funded a risk participation in a
 Swing Line Loan, if the Swing Line Lender receives any payment on account of
 such Swing Line Loan, the Swing Line Lender will distribute to such Lender
 its Applicable Percentage of such payment (appropriately adjusted, in the
 case of interest payments, to reflect the period of time during which such
 Lender’s risk participation was funded) in the same funds as those received
 by the Swing Line Lender.

 
	
  

 	
  

 
	
  

 	
           (ii) If
 any payment received by the Swing Line Lender in respect of principal or
 interest on any Swing Line Loan is required to be returned by the Swing Line
 Lender under any of the circumstances described in Section 10.05
 (including pursuant to any settlement entered into by the Swing Line Lender
 in its discretion), each Lender shall pay to the Swing Line Lender its
 Applicable Percentage thereof on demand of the Administrative Agent, plus
 interest thereon from the date of such demand to the date such 

 


44









	
  

 	
  

 
	
  

 	
 amount is returned, at a rate per annum equal to the applicable
 Overnight Rate. The Administrative Agent will make such demand upon the
 request of the Swing Line Lender. The obligations of the Lenders under this
 clause shall survive the payment in full of the Obligations and the
 termination of this Agreement.

 


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


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


          2.05
Prepayments. (a) Each Borrower may, upon notice from
the Company to the Administrative Agent, at any time or from time to time
voluntarily prepay Committed Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 2:00 p.m. (A) three Business Days
prior to any date of prepayment of Eurocurrency Rate Loans denominated in
Dollars, (B) four Business Days (or five, in the case of prepayment of Loans
denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency
Rate Loans denominated in Alternative Currencies, and (C) on the date of
prepayment of Base Rate Committed Loans; (ii) any prepayment of
Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount
of $5,000,000.00 or a whole multiple of $500,000.00 in excess thereof;
(iii) any prepayment of Eurocurrency Rate Loans denominated in Alternative
Currencies shall be in a minimum principal amount of $500,000.00 or a whole
multiple of $500,000.00 in excess thereof; and (iv) any prepayment of Base
Rate Committed Loans shall be in a principal amount of $500,000.00 or a whole
multiple of $100,000.00 in excess thereof or, in each case, if less, the entire
principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Committed Loans to be
prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest
Period(s) of such Loans. The Administrative Agent will promptly notify each
Lender of its receipt of each such notice, and of the amount of such Lender’s
Applicable Percentage of such prepayment. If such notice is given by the
Company, the applicable Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all
accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section 3.05. Each such prepayment shall be applied
to the Committed Loans of the Lenders in accordance with their respective
Applicable Percentages.


          (b) The
Company may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 2:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of
$100,000.00 or a whole multiple of $100,000.00 in excess thereof. Each such
notice shall specify the date and amount of such prepayment. If such notice is
given by the Company, the 


45





Company shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein.


          (c) If the
Administrative Agent notifies the Company at any time that the Total
Outstandings at such time exceed the Aggregate Commitments then in effect,
then, within two Business Days after receipt of such notice, the Borrowers
shall prepay Loans and/or the Company shall Cash Collateralize the L/C
Obligations in an aggregate amount sufficient to reduce such Outstanding Amount
as of such date of payment to an amount not to exceed 100% of the Aggregate
Commitments then in effect; provided, however, that, subject to
the provisions of Section 2.03(g)(ii), the Company shall not be required
to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c)
unless after the prepayment in full of the Loans the Total Outstandings exceed
the Aggregate Commitments then in effect. The Administrative Agent may, at any
time and from time to time after the initial deposit of such Cash Collateral,
request that additional Cash Collateral be provided in order to protect against
the results of further exchange rate fluctuations. Notwithstanding the
foregoing, so long as the Total Outstandings are not greater than 105% of the
Aggregate Commitments then in effect solely as a result of exchange rate
fluctuations and not as a direct result of the making of a Loan or issuance of
a Letter of Credit, the Borrowers shall not be required to prepay Loans and/or
the Company shall not be required to Cash Collateralize the L/C Obligations, provided,
however, that, if and to the extent solely as a result of exchange rate
fluctuations and not as a direct result of the making of a Loan or issuance of
a Letter of Credit, the Total Outstandings are greater than 105% of the
Aggregate Commitments then in effect, the Borrowers shall prepay Loans and/or
the Company shall Cash Collateralize the L/C Obligations in an aggregate amount
sufficient to reduce such Outstanding Amount as of such date of payment to an
amount not to exceed the Aggregate Commitments then in effect


          2.06
Termination or Reduction of Commitments. The Company
may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or from time to time permanently reduce the Aggregate Commitments;
provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in
an aggregate amount of $10,000,000.00 or any whole multiple of $1,000,000.00 in
excess thereof, (iii) the Company shall not terminate or reduce the Aggregate
Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings plus any Alternative Currency reserve would
exceed the Aggregate Commitments, and (iv) if, after giving effect to any
reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the
Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such
Sublimit shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. The amount of any such
Aggregate Commitment reduction shall not be applied to the Swing Line Sublimit
or the Letter of Credit Sublimit unless otherwise specified by the Company. Any
reduction of the Aggregate Commitments shall be applied to the Commitment of
each Lender according to its Applicable Percentage. All fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.


46





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


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


          2.08
Interest. (a) Subject to the provisions of subsection
(b) below, (i) each Eurocurrency Rate Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurocurrency Rate for such Interest Period plus the
Applicable Rate plus (in the case of a Eurocurrency Rate Loan of any
Lender which is lent from a Lending Office in the United Kingdom or a
Participating Member State) the Mandatory Cost; (ii) each Base Rate Committed
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate; and (iii)
each Swing Line Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the
Base Rate. In the event any Lender lends from a Lending Office in the United
Kingdom or a Participating Member State, and such lending subjects the Borrower
to a Mandatory Cost, the Company may request on behalf of the Borrowers that
such Lender use another Lending Office (to be selected by such Lender) that
would result in the Borrowers not being subject to a Mandatory Cost, and such
Lender will use such other Lending Office if it is legally able to do so and it
would not be materially disadvantageous to such Lender for it to do so. 


          (b) (i) If
any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.


	
  

 	
  

 
	
  

 	
           (ii) If
 any amount (other than principal of any Loan) payable by any Borrower under
 any Loan Document is not paid when due (without regard to any applicable
 grace periods), whether at stated maturity, by acceleration or otherwise,
 then upon the request of the Required Lenders, such amount shall thereafter
 bear interest at a fluctuating interest rate per annum at all times equal to
 the Default Rate to the fullest extent permitted by applicable Laws.

 
	
  

 	
  

 
	
  

 	
           (iii) Upon the request of the Required Lenders,
 while any Event of Default exists, the Borrowers shall pay interest on the
 principal amount of all outstanding Obligations hereunder at a fluctuating
 interest rate per annum at all times equal to the Default Rate to the fullest
 extent permitted by applicable Laws. 

 
	
  

 	
  

 
	
  

 	
           (iv)
 Accrued and unpaid interest on past due amounts (including interest on past
 due interest) shall be due and payable upon demand.

 


          (c)
Borrowers shall pay interest on each Loan in arrears on each Interest Payment
Date applicable thereto and at such other times as may be specified herein.
Interest hereunder shall be due and payable in accordance with the terms hereof
before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law.


47





          (d) For the
purposes of the Interest Act (Canada), (i) whenever a rate of interest or
fee rate hereunder is calculated on the basis of a year (the “deemed year”)
that contains fewer days than the actual number of days in the calendar year of
calculation, such rate of interest or fee rate shall be expressed as a yearly
rate by multiplying such rate of interest or fee rate by the actual number of
days in the calendar year of calculation and dividing it by the number of days
in the deemed year, (ii) the principle of deemed reinvestment of interest
shall not apply to any interest calculation hereunder and (iii) the rates
of interest stipulated herein are intended to be nominal rates and not
effective rates or yields.


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


          (a) Facility
Fee. The Company shall pay to the Administrative Agent for the account of
each Lender in accordance with its Applicable Percentage, a facility fee in
Dollars equal to the Applicable Rate times the actual daily amount of
the Aggregate Commitments (or, if the Aggregate Commitments have terminated, on
the Outstanding Amount of all Committed Loans, Swing Line Loans and L/C
Obligations), regardless of usage. The facility fee shall accrue at all times
during the Availability Period (and thereafter so long as any Committed Loans,
Swing Line Loans or L/C Obligations remain outstanding), including at any time
during which one or more of the conditions in Article IV is not met, and
shall be due and payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing with the first such date to
occur after the Closing Date and on the Maturity Date (and, if applicable,
thereafter on demand). The facility fee shall be calculated quarterly in arrears,
and if there is any change in the Applicable Rate during any quarter, the
actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect.


          (b) Upfront
Fee. The Company shall pay to the Administrative Agent, on the Closing
Date, for the account of the Lenders in accordance with their respective
Applicable Percentages, an upfront fee of, on average, not more than 0.25% of
the Aggregate Commitments as of the Closing Date, in accordance with the Fee
Letters. Such upfront fees shall be fully earned when paid and shall not be
refundable for any reason. 


          (c) Other
Fees. (i)The Company shall pay to the Joint Lead Arrangers, the Joint
Bookrunners and the Administrative Agent for their own respective accounts, in
Dollars, fees in the amounts and at the times specified in the Fee Letters.
Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.


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


          2.10
Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank of America’s
“prime rate” shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees 


48





or interest, as applicable, being paid than if computed on the basis of
a 365-day year), or, in the case of interest in respect of Committed Loans
denominated in Alternative Currencies as to which market practice differs from
the foregoing, in accordance with such market practice. Interest shall accrue
on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it
is made shall, subject to Section 2.12(a), bear interest for one day.
Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest
error. 


          (b)
If, as a result of any restatement of or other adjustment to the financial
statements of the Company or for any other reason, the Company or the Lenders
determine that (i) the Consolidated Leverage Ratio as calculated by the Company
as of any applicable date was inaccurate and (ii) a proper calculation of the
Consolidated Leverage Ratio would have resulted in higher pricing for such
period, each Borrower shall immediately and retroactively be obligated to pay
to the Administrative Agent for the account of the applicable Lenders or the
L/C Issuer, as the case may be, promptly on demand by the Administrative Agent
(or, after the occurrence of an actual or deemed entry of an order for relief
with respect to any Borrower under the Bankruptcy Code of the United States,
automatically and without further action by the Administrative Agent, any
Lender or the L/C Issuer), an amount equal to the excess of the amount of
interest and fees that should have been paid for such period over the amount of
interest and fees actually paid for such period. This paragraph shall not limit
the rights of the Administrative Agent, any Lender or the L/C Issuer, as the
case may be, under Section 2.03(c)(iii), 2.03(i) or 2.08(b)
or under Article VIII. The Borrower’s obligations under this paragraph
shall survive the termination of the Aggregate Commitments and the repayment of
all other Obligations hereunder.


          2.11
Evidence of Debt. (a) The Credit Extensions made by
each Lender shall be evidenced by one or more accounts or records maintained by
such Lender and by the Administrative Agent in the ordinary course of business.
The accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrowers and the interest and payments
thereon. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Borrowers hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts
and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender to a Borrower made through the
Administrative Agent, such Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender’s
Loans to such Borrower in addition to such accounts or records. Each Lender may
attach schedules to a Note and endorse thereon the date, Type (if applicable),
amount, currency and maturity of its Loans and payments with respect thereto.


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


49





manifest error.


          2.12 Payments Generally; Administrative Agent’s
Clawback.


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


          (b) (i) Funding
by Lenders; Presumption by Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of
any Committed Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with Section 2.02 and may, in reliance
upon such assumption, make available to the applicable Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative Agent, then the
applicable Lender and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in Same Day
Funds with interest thereon, for each day from and including the date such
amount is made available to such Borrower to but excluding the date of payment
to the Administrative Agent, at (A) in the case of a payment to be made by
such Lender, the Overnight Rate, plus any reasonable and customary administrative,
processing or similar fees charged by the Administrative Agent in connection
with the foregoing, and (B) in the case of a payment to be made by such
Borrower, the interest rate applicable to Base Rate Loans. If such Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or
an 


50





overlapping period, the Administrative Agent shall promptly remit to
such Borrower the amount of such interest paid by such Borrower for such
period. If such Lender pays its share of the applicable Committed Borrowing to
the Administrative Agent, then the amount so paid shall constitute such
Lender’s Committed Loan included in such Committed Borrowing. Any payment by
such Borrower shall be without prejudice to any claim such Borrower may have
against a Lender that shall have failed to make such payment to the
Administrative Agent.


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


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


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


          (d) Obligations
of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans, to fund participations in Letters of Credit and Swing Line
Loans and to make payments pursuant to Section 10.04(c) are several and
not joint. The failure of any Lender to make any Committed Loan, to fund any
such participation or to make any payment under Section 10.04(c) on any
date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Committed Loan, to purchase its
participation or to make its payment under Section 10.04(c).


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


          2.13
Sharing of Payments by Lenders. If any Lender shall,
by exercising any right of setoff or counterclaim or otherwise, obtain payment
in respect of any principal of or interest 


51






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


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (ii)
 the provisions of this Section shall not be construed to apply to (x) any
 payment made by a Borrower pursuant to and in accordance with the express
 terms of this Agreement or (y) any payment obtained by a Lender as
 consideration for the assignment of or sale of a participation in any of its
 Committed Loans or subparticipations in L/C Obligations or Swing Line Loans
 to any assignee or participant, other than to the Company or any Subsidiary
 thereof (as to which the provisions of this Section shall apply).

 


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


          2.14 Designated Borrowers. (a)Effective
as of the date hereof Curtiss-Wright Controls, Inc., a Delaware corporation,
Metal Improvement Company, LLC, a Delaware limited liability company,
Curtiss-Wright Flow Control Corporation, a New York corporation, Curtiss-Wright
Flow Control Service Corporation, a Delaware corporation, and Curtiss-Wright
Electro-Mechanical Corporation, a Delaware corporation shall each be a
“Designated Borrower” hereunder and may receive Loans for its account on the
terms and conditions set forth in this Agreement.


          (b)
The Company may at any time, upon not less than 15 Business Days’ notice from
the Company to the Administrative Agent (or such shorter period as may be
agreed by the Administrative Agent in its sole discretion), designate any
Material Subsidiary of the Company (an “Applicant Borrower”) as a
Designated Borrower to receive Loans hereunder by delivering to the Administrative
Agent (which shall promptly deliver counterparts thereof to each Lender) a duly
executed notice and agreement in substantially the form of Exhibit H (a
“Designated Borrower Request and Assumption Agreement”). The parties
hereto acknowledge and agree that prior to any Applicant Borrower becoming
entitled to utilize the credit facilities provided for herein the
Administrative Agent and the Lenders shall have received such supporting
resolutions, 


52





incumbency certificates,
opinions of counsel and other documents or information, in form, content and
scope reasonably satisfactory to the Administrative Agent, as may be required
by the Administrative Agent or the Required Lenders in their sole discretion,
and Notes signed by such new Borrowers to the extent any Lenders so require. If
the Administrative Agent and the Required Lenders agree that an Applicant
Borrower shall be entitled to receive Loans hereunder, then promptly following
receipt of all such requested resolutions, incumbency certificates, opinions of
counsel and other documents or information, the Administrative Agent shall send
a notice in substantially the form of Exhibit I (a “Designated
Borrower Notice”) to the Company and the Lenders specifying the effective
date upon which the Applicant Borrower shall constitute a Designated Borrower
for purposes hereof, whereupon each of the Lenders agrees to permit such
Designated Borrower to receive Loans hereunder, on the terms and conditions set
forth herein, and each of the parties agrees that such Designated Borrower
otherwise shall be a Borrower for all purposes of this Agreement.


          (c)
The Obligations of the Company and each Designated Borrower that is a Domestic
Subsidiary shall be joint and several in nature. 


          (d)
Each Subsidiary of the Company that is or becomes a “Designated Borrower” pursuant
to this Section 2.14 hereby irrevocably appoints the Company as its
agent for all purposes relevant to this Agreement and each of the other Loan
Documents, including (i) the giving and receipt of notices, (ii) the
execution and delivery of all documents, instruments and certificates
contemplated herein and all modifications hereto, and (iii) the receipt of
the proceeds of any Loans made by the Lenders to any such Designated Borrower
hereunder. Any acknowledgment, consent, direction, certification or other
action which might otherwise be valid or effective only if given or taken by
all Borrowers, or by each Borrower acting singly, shall be valid and effective
if given or taken only by the Company, whether or not any such other Borrower
joins therein. Any notice, demand, consent, acknowledgement, direction,
certification or other communication delivered to the Company in accordance
with the terms of this Agreement shall be deemed to have been delivered to each
Designated Borrower.


          (e) The Company may from
time to time, upon not less than 15 Business Days’ notice from the Company to
the Administrative Agent (or such shorter period as may be agreed by the
Administrative Agent in its sole discretion), terminate a Designated Borrower’s
status as such, provided that there are no outstanding Loans payable by
such Designated Borrower, or other amounts payable by such Designated Borrower
on account of any Loans made to it, as of the effective date of such
termination. The Administrative Agent will promptly notify the Lenders of any
such termination of a Designated Borrower’s status.


          2.15 Increase in Commitments.


          (a)
Request for Increase. Provided there exists no Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), the Company
may from time to time, request an increase in the Aggregate Commitments by an
amount (for all such requests) not exceeding One Hundred Million Dollars
($100,000,000.00); provided that (i) any such request for an increase
shall be in a minimum amount of $25,000,000.00, and (ii) the Company may make a
maximum of three such requests. At the time of sending such notice, the Company
(in consultation with the Administrative Agent) shall specify the time period
within which each 


53





Lender is requested to
respond (which shall in no event be less than ten (10) Business Days from the
date of delivery of such notice to the Lenders). 


          (b)
Lender Elections to Increase. Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater
than, or less than its Applicable Percentage of such requested increase. Any
Lender not responding within such time period shall be deemed to have declined
to increase its Commitment. 


          (c)
Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall notify the Company and each Lender of the Lenders’
responses to each request made hereunder. To achieve the full amount of a
requested increase and subject to the approval of the Administrative Agent, the
L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably
withheld), the Company may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance satisfactory to
the Administrative Agent and its counsel.


          (d)
Effective Date and Allocations. If the Aggregate Commitments are increased
in accordance with this Section, the Administrative Agent and the Company shall
determine the effective date (the “Increase Effective Date”) and the
final allocation of such increase. The Administrative Agent shall promptly
notify the Company and the Lenders of the final allocation of such increase and
the Increase Effective Date. 


          (e)
Conditions to Effectiveness of Increase. As a condition precedent to
such increase, the Company shall deliver to the Administrative Agent a
certificate executed by each Loan Party dated as of the Increase Effective Date
(in sufficient copies for each Lender) signed by a Responsible Officer of such
Loan Party (i) certifying and attaching the resolutions adopted by such Loan
Party approving or consenting to such increase, and (ii) in the case of the
Company, certifying that, before and after giving effect to such increase, (A)
the representations and warranties contained in Article V and the other
Loan Documents are true and correct on and as of the Increase Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, and except that for purposes of this Section 2.15, the
representations and warranties contained in subsections (a) and (b) of Section
5.05 shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 6.01, and (B)
no Default exists. The Borrowers shall prepay any Committed Loans outstanding
on the Increase Effective Date (and pay any additional amounts required
pursuant to Section 3.05) to the extent reasonably deemed to be
necessary by the Administrative Agent to keep the outstanding Committed Loans
ratable with any revised Applicable Percentages arising from any nonratable
increase in the Commitments under this Section; provided that the
Administrative Agent and the Borrowers may designate an Increase Effective Date
that will reduce or minimize the payment of additional amounts required
pursuant to Section 3.05; and provided further that, for
purposes of clarification, use of the phrase “reasonably deemed necessary by
the Administrative Agent” in the preceeding portion of this sentence is not
intended to give the Administrative Agent discretion to allocate Committed
Loans non-ratably.


54





          (f)
Conflicting Provisions. This Section shall supersede any provisions in Section
2.13 or 10.01 to the contrary.


          2.16 Defaulting Lenders.


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


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (ii) Defaulting
 Lender Waterfall. Any
 payment of principal, interest, fees or other amounts received by the
 Administrative Agent for the account of such Defaulting Lender (whether
 voluntary or mandatory, at maturity, pursuant to Article VIII or
 otherwise) or received by the Administrative Agent from a Defaulting Lender
 pursuant to Section 10.08 shall be applied at such time or times as
 may be determined by the Administrative Agent as follows: first,
 to the payment of any amounts owing by such Defaulting Lender to the Administrative
 Agent hereunder; second, to the payment on a pro rata
 basis of any amounts owing by such Defaulting Lender to the L/C Issuer or
 Swing Line Lender hereunder; third, to Cash Collateralize the L/C
 Issuer’s Fronting Exposure with respect to such Defaulting Lender; fourth,
 as the Borrowers may request (so long as no Default or Event of Default
 exists), to the funding of any Loan in respect of which such Defaulting
 Lender has failed to fund its portion thereof as required by this Agreement,
 as determined by the Administrative Agent; fifth, if so determined by
 the Administrative Agent and the Borrower, to be held in a deposit account
 and released pro rata in order to (x) satisfy such Defaulting Lender’s
 potential future funding obligations with respect to Loans under this
 Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting
 Exposure with respect to such Defaulting Lender with respect to future
 Letters of Credit issued under this Agreement; sixth, to the payment of
 any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a
 result of any judgment of a court of competent jurisdiction obtained by any
 Lender, the L/C Issuer or the Swing Line Lender against such Defaulting
 Lender as a result of such Defaulting Lender’s breach of its obligations
 under this Agreement; seventh, so long as no Default or Event
 of Default exists, to the payment of any amounts owing to the Borrower as a
 result of any judgment of a court of competent jurisdiction obtained by the
 Borrower against such Defaulting Lender as a result of such Defaulting
 Lender’s breach of its obligations under this Agreement; and eighth,
 to such Defaulting Lender or as otherwise directed by a court of competent
 jurisdiction; provided that if (x) such payment is a payment of the principal
 amount of any Loans or L/C Borrowings in respect of which such Defaulting
 Lender has not fully funded its appropriate share, and (y) such Loans were
 made or the related Letters of Credit were issued at a time when the
 conditions set forth in Section 4.02 were satisfied or waived, such
 payment shall be applied solely to pay the Loans of, and L/C Obligations owed
 to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to
 the payment of any Loans of, or L/C Obligations owed to, such Defaulting
 Lender until such time as all Loans and funded and unfunded participations in
 L/C 

 


55









	
  

 	
  

 
	
  

 	
 Obligations and Swing
 Line Loans are held by the Lenders pro rata in accordance with the
 Commitments hereunder. Any payments, prepayments or other amounts paid or
 payable to a Defaulting Lender that are applied (or held) to pay amounts owed
 by a Defaulting Lender or to post Cash Collateral pursuant to this Section
 and Section 2.03(g) shall be deemed paid to and redirected by such
 Defaulting Lender, and each Lender irrevocably consents hereto.

 






	
  

 	
  

 
	
  

 	
 (iii)
 Certain Fees.

 
	
  

 	
  

 
	
  

 	
           (A)
 Each Defaulting
 Lender shall be entitled to receive fees payable under Sections 2.09(a) and
 2.09(b) for any period during which that Lender is a Defaulting Lender only
 to extent allocable to the sum of (1) the outstanding principal amount of the
 Committed Loans funded by it, and (2) its Applicable Percentage of the stated
 amount of Letters of Credit for which it has provided Cash Collateral.

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (C)
 With respect to any
 fee payable under Section 2.09(a) or (b) or any Letter of
 Credit Fee not required to be paid to any Defaulting Lender pursuant to clause
 (A) or (B) above, the Borrowers shall (x) pay to each
 Non-Defaulting Lender that portion of any such fee otherwise payable to such
 Defaulting Lender with respect to such Defaulting Lender’s participation in
 L/C Obligations or Swing Line Loans that has been reallocated to such
 Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the
 L/C Issuer and Swing Line Lender, as applicable, the amount of any such fee
 otherwise payable to such Defaulting Lender to the extent allocable to such
 L/C Issuer’s or Swing Line Lender’s Fronting Exposure to such Defaulting
 Lender, and (z) not be required to pay the remaining amount of any such fee.

 



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


56









	
  

 	
  

 
	
  

 	
           (v)
 Cash Collateral. If the reallocation described in clause
 (a)(iv) above cannot, or can only partially, be effected, the Borrowers
 shall, without prejudice to any right or remedy available to it hereunder or
 under applicable Law, Cash Collateralize the L/C Issuers’ remaining Fronting
 Exposure after taking into effect all Cash Collateral applied under clause
 (a)(ii) above and otherwise provided under Section 2.03(g).
 

 



          (b)
Defaulting Lender Cure. If
the Borrower, the Administrative Agent, Swing Line Lender and the L/C Issuer
agree in writing that a Lender is no longer a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon as of the
effective date specified in such notice and subject to any conditions set forth
therein (which may include arrangements with respect to any Cash Collateral),
that Lender will, to the extent applicable, purchase at par that portion of
outstanding Loans of the other Lenders or take such other actions as the
Administrative Agent may determine to be necessary to cause the Committed Loans
and funded and unfunded participations in Letters of Credit and Swing Line
Loans to be held on a pro rata basis by the Lenders in accordance with their
Applicable Percentages, whereupon such Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with
respect to fees accrued or payments made by or on behalf of the Borrower while
that Lender was a Defaulting Lender; and provided, further, that
except to the extent otherwise expressly agreed by the affected parties, no
change hereunder from Defaulting Lender to Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having
been a Defaulting Lender.


ARTICLE
III.

TAXES, YIELD PROTECTION AND ILLEGALITY


          3.01 Taxes.


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


	
  

 	
  

 
	
  

 	
           (ii)
 If any Borrower or the Administrative Agent shall be required by the Code to
 withhold or deduct any Taxes, including both United States Federal backup
 withholding and withholding taxes, from any payment, then (A) the
 Administrative Agent shall withhold or make such deductions as are determined
 by the Administrative Agent to be required based upon the information and
 documentation it has received pursuant to subsection (e) below,
 (B) the Administrative Agent shall timely pay the full amount withheld
 or deducted to the relevant Governmental Authority in accordance with the
 Code, and (C) to the extent that the withholding or deduction is made on
 account of Indemnified Taxes, the sum payable by the applicable Borrower
 shall be increased as necessary so that after any required withholding or the
 making of all required deductions (including deductions applicable to
 additional sums payable under this Section 3.01) the 

 


57









	
  

 	
  

 
	
  

 	
 applicable Recipient receives an amount equal to the
 sum it would have received had no such withholding or deduction been made.

 
	
  

 	
  

 
	
  

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

 



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


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


	
  

 	
  

 
	
  

 	
           (ii)
 Each Lender and the L/C Issuer shall, and does hereby, severally indemnify,
 and shall make payment in respect thereof within 10 days after demand
 therefor, (x) the Administrative Agent against any Indemnified Taxes
 attributable to such Lender or the L/C Issuer (but only to the extent that
 any Borrower has not already indemnified the Administrative Agent for such
 Indemnified Taxes and without limiting the obligation of the Borrowers to do
 so), (y) the Administrative Agent and the Borrower, as applicable,
 against any Taxes attributable to such Lender’s failure to comply with the
 provisions of Section 10.06(d) relating to the maintenance of a
 Participant Register and (z) the Administrative Agent and the Borrowers,
 as applicable, against any Excluded 

 


58









	
  

 	
  

 
	
  

 	
 Taxes attributable to such Lender or the L/C Issuer,
 in each case, that are payable or paid by the Administrative Agent or a
 Borrower in connection with any Loan Document, and any reasonable expenses
 arising therefrom or with respect thereto, whether or not such Taxes were
 correctly or legally imposed or asserted by the relevant Governmental
 Authority. A certificate as to the amount of such payment or liability
 delivered to any Lender by the Administrative Agent shall be conclusive
 absent manifest error. Each Lender and the L/C Issuer hereby authorizes the
 Administrative Agent to set off and apply any and all amounts at any time
 owing to such Lender or the L/C Issuer, as the case may be, under this
 Agreement or any other Loan Document against any amount due to the
 Administrative Agent under this clause (ii).

 



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


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


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


	
  

 	
  

 
	
  

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

 


59









	
  

 	
  

 
	
  

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

 






	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (II)
 executed originals of IRS Form W-8ECI;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 






	
  

 	
  

 
	
  

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

 


60









	
  

 	
  

 
	
  

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

 



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


          (f)
Treatment of Certain Refunds. Unless required by applicable Laws, at no
time shall the Administrative Agent have any obligation to file for or
otherwise pursue on behalf of a Lender or the L/C Issuer, or have any
obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld
or deducted from funds paid for the account of such Lender or the L/C Issuer,
as the case may be. If any Recipient determines that it has received a refund
of any Taxes as to which it has been indemnified by any Borrower or with
respect to which any Borrower has paid additional amounts pursuant to this Section 3.01,
it shall pay to such Borrower an amount equal to such refund (but only to the
extent of indemnity payments made, or additional amounts paid, by a Borrower
under this Section 3.01 with respect to the Taxes giving rise to such
refund), net of all documented out-of-pocket expenses (including Taxes)
incurred by such Recipient, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund), provided
that each Borrower, upon the request of the Recipient, agrees to pay the
refunded amount paid to such Borrower (plus any refunded penalties, interest or
other charges imposed by the relevant Governmental Authority) to the Recipient
in the event the Recipient is required to repay the refunded amount to such
Governmental Authority. This subsection shall not be construed to require any
Recipient to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to any Borrower or any other Person.


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


          3.02
Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurocurrency Rate Loans (whether denominated in 


61





Dollars or an Alternative Currency), or to determine
or charge interest rates based upon the Eurocurrency Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars or any Alternative Currency
in the applicable interbank market, then, on notice thereof by such Lender to
the Company through the Administrative Agent, any obligation of such Lender to
make or continue Eurocurrency Rate Loans in the affected currency or currencies
or, in the case of Eurocurrency Rate Loans in Dollars, to convert Base Rate
Committed Loans to Eurocurrency Rate Loans, shall be suspended until such
Lender notifies the Administrative Agent and the Company that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrowers shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable and such Loans are denominated in Dollars,
convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans. Upon any such prepayment or conversion, the Borrowers
shall also pay accrued interest on the amount so prepaid or converted.


          3.03 Inability to Determine Rates. If the
Required Lenders determine that for any reason in connection with any request
for a Eurocurrency Rate Loan or a conversion to or continuation thereof that
(a) deposits (whether in Dollars or an Alternative Currency) are not being
offered to banks in the applicable offshore interbank market for such currency
for the applicable amount and Interest Period of such Eurocurrency Rate Loan,
(b) adequate and reasonable means do not exist for determining the Eurocurrency Rate for any
requested Interest Period with respect to a proposed Eurocurrency Rate Loan
(whether denominated in Dollars or an Alternative Currency), or (c) the Eurocurrency Rate for any
requested Interest Period with respect to a proposed Eurocurrency Rate Loan
does not adequately and fairly reflect the cost to such Lenders of funding such
Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the
Company and each Lender. Thereafter, the obligation of the Lenders to make or
maintain Eurocurrency Rate Loans in the affected currency or currencies shall
be suspended until the Administrative Agent (upon the instruction of the
Required Lenders) revokes such notice. Upon receipt of such notice, the Company
may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans in the affected currency or currencies
or, failing that, will be deemed to have converted such request into a request
for a Committed Borrowing of Base Rate Loans in the amount specified therein.


          3.04 Increased Costs; Reserves on Eurocurrency Rate
Loans. 


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (i)
 impose, modify or deem applicable any reserve, special deposit, compulsory
 loan, insurance charge or similar requirement against assets of, deposits
 with or for the account of, or credit extended or participated in by, any
 Lender (except any reserve requirement contemplated by Section 3.04(e)) or the L/C Issuer; 

 
	
  

 	
  

 
	
  

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

 


62









	
  

 	
  

 
	
  

 	
 other obligations, or its deposits, reserves, other
 liabilities or capital attributable thereto; or

 
	
  

 	
  

 
	
  

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

 



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


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


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


          (d)
Delay in Requests. Failure or delay on the part of any Lender or the L/C
Issuer to demand compensation pursuant to the foregoing provisions of this Section
shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to
demand such compensation, provided that no Borrower shall be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
six months prior to the date that such Lender or the L/C Issuer, as the case
may be, notifies the 


63





Company of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’s
intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
six-month period referred to above shall be extended to include the period of
retroactive effect thereof).


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


          3.05 Compensation for Losses.


          Upon
demand of any Lender (with a copy to the Administrative Agent) from time to
time, the Company shall promptly compensate (or cause the applicable Designated
Borrower to compensate) such Lender for and hold such Lender harmless from any
loss, cost or expense incurred by it as a result of:


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


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


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


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


including any loss
of anticipated profits, any foreign exchange losses and any loss or
expense arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan, from fees payable to terminate the deposits from which such
funds were obtained or from the performance of any foreign exchange contract. The Company shall also pay (or cause the
applicable Designated Borrower to pay) any
customary administrative fees charged by such Lender in connection with the
foregoing.


64





          For
purposes of calculating amounts payable by the Company (or the applicable
Designated Borrower) to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurocurrency Rate Loan made by it at the Eurocurrency Rate used in determining
the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in
the offshore interbank market for such currency for a comparable amount and for
a comparable period, whether or not such Eurocurrency Rate Loan was in fact so
funded.


          3.06 Mitigation Obligations; Replacement of Lenders. 


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


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



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


ARTICLE
IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


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


          (a)
The Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan
Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance satisfactory to the Administrative Agent and each of the Lenders:


65









	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (iv)
 such documents and certifications as the Administrative Agent may reasonably
 require to evidence that each Loan Party as listed on Schedule 4.01(A)
 is duly organized or formed, and that each of the Borrowers as listed on Schedule
 4.01(A) is validly existing, in good standing and qualified to engage in
 business in each of the jurisdictions’ as listed on Schedule 4.01(A)
 where its ownership, lease or operation of properties or the conduct of its
 business requires such qualification, except to the extent that failure to do
 so could not reasonably be expected to have a Material Adverse Effect;

 
	
  

 	
  

 
	
  

 	
           (v)
 a favorable opinion of Paul J. Ferdenzi, Associate General Counsel of the
 Company, addressed to the Administrative Agent and each Lender, as to such
 matters concerning the Loan Parties and the Loan Documents as the Required
 Lenders may reasonably request;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (vii)
 a certificate signed by a Responsible Officer of the Company certifying (A)
 that the conditions specified in Sections 4.02(a) and (b) have
 been satisfied and (B) that there has been no event or circumstance since
 December 31, 2011 that has had or could be reasonably expected to have,
 either individually or in the aggregate, a Material Adverse Effect; and (C) a
 calculation of the Consolidated Leverage Ratio as of the last day of the
 fiscal quarter of the Company most recently ended prior to the Closing Date;

 
	
  

 	
  

 
	
  

 	
           (viii)
 a duly completed Compliance Certificate as of the last day of the fiscal
 quarter of the Company most recently ended prior to the Closing Date, signed
 by a Responsible Officer of the Company;

 
	
  

 	
  

 
	
  

 	
           (ix)
 evidence that all insurance required to be maintained pursuant to the Loan
 Documents has been obtained and is in effect;

 


66









	
  

 	
  

 
	
  

 	
           (x)
 all principal and interest owing under the Prior Agreement shall have been
 refinanced pursuant to this Agreement, all commitments to extend credit under
 the Prior Agreement shall have been terminated, and all fees and other
 amounts outstanding thereunder shall have been paid in full; and

 
	
  

 	
  

 
	
  

 	
           (xi)
 such other assurances, certificates, documents, consents or opinions as the
 Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required
 Lenders reasonably may require.

 



          (b)
The Company shall have paid to the Lenders, the Administrative Agent, the Joint
Lead Arrangers and the Joint Bookrunner all fees required to be paid and all
reasonable expenses for which invoices have been presented, on or before the
Closing Date.


          (c)
Unless waived by the Administrative Agent, the Company shall have paid all
fees, charges and disbursements of counsel to the Administrative Agent as
required under the Loan Documents, to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of such fees, charges and
disbursements as shall constitute its reasonable estimate of such fees, charges
and disbursements incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a final
settling of accounts between the Company and the Administrative Agent).


          (d)
The Closing Date shall have occurred on or before August 10, 2012.


          Without
limiting the generality of the provisions of the last paragraph of Section
9.03, for purposes of determining compliance with the conditions specified
in this Section 4.01, each Lender that has signed this Agreement shall
be deemed to have consented to, approved or accepted or to be satisfied with,
each document of which it has received a copy (including receipt by electronic
means) or other matter required thereunder as to which it has knowledge to be
consented to or approved by or acceptable or satisfactory to a Lender unless
the Administrative Agent shall have received notice from such Lender prior to
the proposed Closing Date specifying its objection thereto.


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


          (a)
The representations and warranties of (i) the Borrowers contained in Article V
and (ii) each Loan Party contained in each other Loan Document or in any
document furnished at any time under or in connection herewith or therewith,
shall be true and correct in all material respects on and as of the date of
such Credit Extension, except (x) that any such representations and warranties
that are qualified by reference to materiality or Material Adverse Effect shall
be true and correct in all respects; (y) to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date, and (z) that for
purposes of this Section 4.02, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01. 


67





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


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


          (d)
If the applicable Borrower is a Designated Borrower, then the conditions of Section 2.14
to the designation of such Borrower as a Designated Borrower shall have been
met to the satisfaction of the Administrative Agent.


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


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


ARTICLE
V.

REPRESENTATIONS AND WARRANTIES


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


          5.01
Existence, Qualification and Power. Each Loan Party (a) is
duly organized or formed, validly existing and, as applicable, in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b)
has all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own or lease its assets and carry
on its business and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, and (c) is duly qualified and is
licensed and, as applicable, in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so
would not reasonably be expected to have a Material Adverse Effect.


          5.02
Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person’s Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation to which such Person is
a party or by which such Person or the properties of such Person or any of its
Subsidiaries are bound or (ii) any order, 


68





injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law. Each Loan Party is in compliance with all
Contractual Obligations referred to in clause (b)(i), except to the extent that
failure to do so would not reasonably be expected to have a Material Adverse
Effect.


          5.03
Governmental Authorization; Other Consents. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.


          5.04
Binding Effect. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, except in each case as such
enforcement may be limited by principles of equity, bankruptcy, insolvency or
other laws affecting the enforcement of creditors’ rights generally.


          5.05
Financial Statements; No Material Adverse Effect. (a) The
Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of the
Company and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other material
liabilities, direct or contingent, of the Company and its Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and
Indebtedness.


          (b)
The unaudited consolidated balance sheet of the Company and its Subsidiaries
dated March 31, 2012, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for the fiscal quarter ended on
that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Company and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments. Schedule 5.05
sets forth all material indebtedness and other material liabilities, direct or
contingent, of the Company and its consolidated Subsidiaries as of the date of
such financial statements, including liabilities for taxes, material
commitments and Indebtedness. 


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


          5.06
Litigation. There are no actions, suits, proceedings, claims
or disputes pending or, to the knowledge of the Company, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Company or any of its Subsidiaries or 


69





against any of their properties or revenues that (a)
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby, or (b) except as specifically
disclosed in Schedule 5.06, either individually or in the aggregate, if
determined adversely, could reasonably be expected to have a Material Adverse
Effect, and there has been no adverse change in the status, or financial effect
on any Loan Party or any Subsidiary thereof, of the matters described on Schedule
5.06.


          5.07 No
Default. Neither the Company nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any
other Loan Document.


          5.08
Ownership of Property; Liens. Each of the Company and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
The property of the Company and its Subsidiaries is subject to no Liens, other
than Liens permitted by Section 7.01.


          5.09
Environmental Compliance. The Company and its Subsidiaries
conduct in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility
for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof the Company has reasonably
concluded that, except as specifically disclosed in Schedule 5.09, such
Environmental Laws and claims would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


          5.10
Insurance. The properties of the Company and its Subsidiaries
are insured in accordance with customary industry practice, in such amounts,
with such deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in
localities where the Company or the applicable Subsidiary operates.


          5.11
Taxes. The Company and its Subsidiaries have filed all
Federal, state and other material tax returns, extension and reports required to
be filed, and have paid all Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those
which are being contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves have been provided in accordance with
GAAP. There is no proposed tax assessment against the Company or any Subsidiary
that would, if made, have a Material Adverse Effect. Neither any Loan Party nor
any Subsidiary thereof is party to any tax sharing agreement.


          5.12
ERISA Compliance. (a) Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
Federal or state Laws. Each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from the IRS
or an application for such a letter is currently being processed by the IRS
with respect thereto and, to the knowledge of the Company, nothing has occurred
which would 


70





prevent, or cause the loss of, such qualification. The
Company and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412 of the Code, and no application for a funding waiver
or an extension of any amortization period pursuant to Section 412 of the Code
has been made with respect to any Plan.


          (b)
There are no pending or, to the knowledge of the Company, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to
any Plan that could reasonably be expected to have a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.


          (c)
(i) No ERISA Event has occurred or is reasonably expected to occur; (ii) each
Pension Plan is in compliance in all material respects with the minimum funding
requirements of Section 412 and 430 of the Code; (iii) neither the Company nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither the Company
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
material liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections
4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Company nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.


          5.13
Subsidiaries; Equity Interests. As of the Closing Date, the
Company has no Subsidiaries other than those specifically disclosed in Part (a)
of Schedule 5.13, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and nonassessable and are
owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13
free and clear of all Liens. As of the Closing Date, the Company has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 5.13. All of the outstanding Equity
Interests in the Company have been validly issued, and are fully paid and
nonassessable. The Company represents and warrants that the Material
Subsidiaries identified in this Agreement are the only Material Subsidiaries in
existence, and that each Subsidiary that is a guarantor of a Private Placement
is party to the Guaranty.


          5.14
Margin Regulations; Investment Company Act. (a) No Borrower
is engaged or will engage, principally or as one of its important activities,
in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock.


          (b)
None of the Company, any Person Controlling the Company, or any Subsidiary is
or is required to be registered as an “investment company” under the Investment
Company Act of 1940.


          5.15 Disclosure.
The Company has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on 


71






behalf of any Loan Party
to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered
hereunder or under any other Loan Document (in each case, as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Company represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.


          5.16
Compliance with Laws. Each of the Company and each Subsidiary
is in compliance in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.


          5.17 Intellectual Property; Licenses, Etc.
The Company and its Subsidiaries own, or possess the right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person. To
the knowledge of the Company, no material slogan or other advertising device,
product, process, method, substance, part or other material now employed, or
now contemplated to be employed, by the Company or any Subsidiary infringes in
any material respect upon any rights held by any other Person. Except as
specifically disclosed in Schedule 5.17, no claim or litigation
regarding any of the foregoing is pending or, to the knowledge of the Company,
threatened, which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. 


          5.18
Foreign Assets Control Regulations, etc. (a) Neither the
Company nor any of its Subsidiaries is (i) a Person whose name appears on the
list of Specially Designated Nationals and Blocked Persons published by the
Office of Foreign Assets Control, U.S. Department of Treasury (“OFAC”)
(an “OFAC Listed Person”) or (ii) a department, agency or
instrumentality of, or is otherwise controlled by or acting on behalf of,
directly or indirectly, (x) any OFAC Listed Person or (y) the government of a
country subject to comprehensive U.S. economic sanctions administered by OFAC,
currently Iran, Sudan, Cuba, Burma, Syria and North Korea (each OFAC Listed
Person and each other entity described in clause (ii), a “Blocked Person”).



          (b)
No part of the proceeds from the Loans hereunder constitutes or will constitute
funds obtained on behalf of any Blocked Person or will otherwise be used,
directly by the Company or indirectly through any of its Subsidiaries, in
connection with any investment in, or any transactions or dealings with, any
Blocked Person. 


          (c)
To the Company’s actual knowledge after making due inquiry, neither the Company
nor any of its Subsidiaries (i) is under investigation by any Governmental
Authority for, or has been charged with, or convicted of, money laundering,
drug trafficking, terrorist-related activities or other money laundering
predicate crimes under any applicable law 


72





(collectively, “Anti-Money
Laundering Laws”), (ii) has been assessed civil penalties under any
Anti-Money Laundering Laws or (iii) has had any of its funds seized or
forfeited in an action under any Anti-Money Laundering Laws. The Company has
taken reasonable measures appropriate to the circumstances (in any event as
required by applicable Law), to ensure that the each of the Company and each of
its Affiliates is and will continue to be in compliance with all Anti-Money
Laundering Laws.


          (d)
No part of the proceeds from the Loans hereunder, and no Letter of Credit
issued hereunder, will be used, directly or indirectly, for any improper
payments to any governmental official or employee, political party, official of
a political party, candidate for political office, official of any public
international organization or anyone else acting in an official capacity, in
order to obtain, retain or direct business or obtain any improper advantage.
The Company has taken reasonable measures appropriate to the circumstances (in
any event as required by applicable Law), to ensure that each of the Company
and each of its Subsidiaries is and will continue to be in compliance with all
applicable anti-corruption laws and regulations.


          5.19
Taxpayer Identification Number; Other Identifying Information.
The true and correct U.S. taxpayer identification number of the Company and each Designated Borrower party hereto on
the Closing Date is set forth on Schedule 10.02.


ARTICLE
VI.

AFFIRMATIVE COVENANTS


          So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Company shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, and 6.03)
cause each Subsidiary to:


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


          (a)
as soon as available, but in any event within 90 days after the end of each
fiscal year of the Company, a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail and prepared in accordance
with GAAP, such consolidated statements to be audited and accompanied by a
report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any “going concern” or like qualification
or exception or any qualification or exception as to the scope of such audit;


          (b)
as soon as available, but in any event within 60 days after the end of each of
the first three fiscal quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated 


73





statements of income or
operations, shareholders’ equity and cash flows for such fiscal quarter and for
the portion of the Company’s fiscal year then ended, setting forth in each case
in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail, certified by a Responsible Officer of the Company as
fairly presenting the financial condition, results of operations, shareholders’
equity and cash flows of the Company and its Subsidiaries in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.


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


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


                    (a)
concurrently with the delivery of the financial statements referred to in Section
6.01(a), a certificate of its independent certified public accountants
certifying such financial statements;


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


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


                    (d)
promptly, and in any event within five Business Days after receipt thereof by
any Loan Party or any Subsidiary thereof, copies of any notice received from
the SEC (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation of any Loan Party or any Subsidiary thereof; and


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


Documents required to be
delivered pursuant to Section 6.01(a) or (b) or Section
6.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Company posts such documents, or provides a link thereto on the Company’s
website on the Internet at the website address listed on Schedule 10.02;
or (ii) on which such 


74





documents are posted on
the Company’s behalf on an Internet or intranet website, if any, to which each
Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Company shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Company to deliver such
paper copies and shall continue to provide such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent
or such Lender and (ii) the Company shall notify the Administrative Agent and
each Lender (by facsimile or electronic mail) of the posting of any such
documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Notwithstanding anything
contained herein, in every instance the Company shall be required to provide
paper copies of the Compliance Certificates required by Section 6.02(b)
to the Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Company with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.


Each
Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint
Lead Arrangers will make
available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of such Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) certain of the
Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to any of the Borrowers or
their respective Affiliates, or the respective securities of any of the
foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities. Each Borrower hereby
agrees that so long as such Borrower is
the issuer of any outstanding debt or equity securities that are registered or
issued pursuant to a private offering or is actively contemplating issuing any
such securities (w) all Borrower Materials that are to be made available
to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at
a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers
shall be deemed to have authorized the Administrative Agent, the Joint
Lead Arrangers, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrowers or their respective
securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 10.07); (y)
all Borrower Materials marked “PUBLIC” are permitted to be made available
through a portion of the Platform designated “Public Side Information;” and (z)
the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower
shall be under any obligation to mark any Borrower Materials “PUBLIC.”


          6.03
Notices. Promptly notify the Administrative Agent and each
Lender:


75





                    (a)
of the occurrence of any Default; provided
however that, no notice shall be required of any Default under any covenant
contained in Article VI if the Company reasonably believes that such
Default will be cured within the applicable cure period, if any; 


                    (b)
of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a Contractual Obligation of the Company or any Subsidiary; (ii)
any dispute, litigation, investigation, proceeding or suspension between the
Company or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Company or any Subsidiary, including pursuant to any applicable
Environmental Laws; 


                    (c)
of the occurrence of any ERISA Event; and


                    (d)
of any material change in accounting policies or financial reporting practices
by the Company or any Subsidiary. 


          Each
notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a)
shall describe with particularity any and all provisions of this Agreement and
any other Loan Document that have been breached.


          6.04
Payment of Obligations. Pay and discharge as the same shall
become due and payable, all its obligations and liabilities, including (a) all
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, and (b) all lawful claims which, if unpaid, would by law
become a Lien upon its property, unless in any such case, the same are being
contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been set aside and are being maintained in
accordance with GAAP by the Company or such Subsidiary. Pay and discharge as
the same shall become due and payable all Indebtedness, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.


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


          6.06
Maintenance of Properties. (a) Maintain, preserve and protect
all of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
(b) make all necessary repairs thereto and renewals and replacements thereof
except where the failure to do so would not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the
industry in the operation and maintenance of its facilities.


76





          6.07
Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies not Affiliates of the Company (other than
self-insurance through a captive insurance Subsidiary insuring against the
payment of deductibles under third party insurance policies), insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons and providing to the Administrative Agent
for not less than 30 days’ prior notice of termination or lapse of such
insurance or 10 days’ prior notice for cancellation of such insurance for
non-payment of premium.


          6.08
Compliance with Laws. Comply in all material respects with
the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith would not reasonably be expected to have a
Material Adverse Effect. 


          6.09
Books and Records. (a) Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company or such Subsidiary, as the
case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Company or such Subsidiary, as the case
may be.


          6.10
Inspection Rights. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit any of its
properties, all at the expense of the Company and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company; provided, however, that when an Event
of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may visit and inspect
any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants at the expense of the Company at any time during normal business
hours and without advance notice.


          6.11
Use of Proceeds. Use the proceeds of the Credit Extensions
(i) for working capital, capital expenditures, and other general corporate
purposes not in contravention of any Law or of any Loan Document, including
acquisitions, and (ii) to refinance in full the obligations under the Prior
Agreement (other than the Existing Letters of Credit) and to carry forward the
Existing Letters of Credit hereunder.


          6.12
Approvals and Authorizations. Maintain all material
authorizations, consents, approvals and licenses from, exemptions of, and
filings and registrations with, each Governmental Authority of the jurisdiction
in which each Borrower is organized and existing, and all material approvals
and consents of each other Person in such jurisdiction, in each case that are
required in connection with the Loan Documents.


77





          6.13
Additional Subsidiary Guarantors. Notify the Administrative
Agent at the time that any Person becomes a Subsidiary, and promptly thereafter
(and in any event within 30 days), cause such Person (a) if such Person is a
Material Subsidiary or a guarantor of a Private Placement, to become a
Subsidiary Guarantor, on a joint and several basis with all other Subsidiary
Guarantors, by executing and delivering to the Administrative Agent a
counterpart of the Subsidiary Guaranty or such other document as the
Administrative Agent shall deem appropriate for such purpose, and (b) to
deliver to the Administrative Agent documents of the types referred to in
clauses (iii) and (iv) of Section 4.01(a) and favorable opinions of
counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in
clause (a) and shall be addressed to the Administrative Agent and each of the
Lenders), all in form, content and scope reasonably satisfactory to the
Administrative Agent. No Foreign Subsidiary may become a Designated Borrower if
it would be illegal for any Lender to lend to such Foreign Subsidiary, as
reasonably determined by such Lender. A Foreign Subsidiary that (a) can become
a Subsidiary Guarantor for all the Obligations without adverse tax
consequences, shall become a Subsidiary Guarantor for all of the Obligations,
or (b) cannot become a Subsidiary Guarantor for all of the Obligations, but can
become a Subsidiary Guarantor for a portion of the Obligations, without adverse
tax consequences, shall become a Subsidiary Guarantor for only such portion of
the Obligations as will not result in adverse tax consequences; provided,
however, that if such Foreign Subsidiary is a guarantor of a Private
Placement, it shall become a Subsidiary Guarantor for all of the Obligations
or, if its guaranty of such Private Placement is limited to avoid adverse tax
consequences, it shall become a Subsidiary Guarantor for only such portion of
the Obligations as will not result in adverse tax consequences consistent with
the limitation on its guaranty of such Private Placement; and provided, further,
that if any such Foreign Subsidiary cannot become a Subsidiary Guarantor for
any of the Obligations without adverse tax consequences, then 66% of the equity
interests in such Foreign Subsidiary shall be pledged to the Administrative
Agent for its benefit and the benefit of the Lenders pursuant to such
documentation as the Administrative Agent shall reasonably require.


ARTICLE
VII.

NEGATIVE COVENANTS


          So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Company shall not, nor shall it permit any
Subsidiary to, directly or indirectly:


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


                    (a)
Liens pursuant to any Loan Document; 


                    (b)
Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby
is not changed, (ii) the amount secured or benefited thereby is not increased,
(iii) the direct or any contingent obligor with respect thereto is not changed,
and (iv) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(b); 


78





                    (c)
Liens for taxes not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with
GAAP; 


                    (d)
carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business which are not overdue for a
period of more than 30 days or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person; 


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


                    (f)
deposits to secure the performance of bids, trade contracts and leases (other
than Indebtedness), statutory obligations, surety bonds (other than bonds
related to judgments or litigation), performance bonds and other obligations of
a like nature incurred in the ordinary course of business; 


                    (g)
easements, rights-of-way, restrictions and other similar encumbrances affecting
real property which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
the applicable Person; 


                    (h)
Liens securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h) or securing appeal or other surety bonds
related to such judgments;


                    (i)
Purchase money mortgages or purchase money security interests, Liens securing
industrial revenue bonds, conditional sale arrangements and other similar
security interests, on property or assets acquired by any Borrower or any
Subsidiary of any Borrower simultaneously (hereinafter referred to individually
as a “Purchase Money Security Interest”) or replacements thereof, upon
incurring Indebtedness the proceeds of which are used to acquire such property
or asset; provided, however, that:


                              (i)
The transaction in which any Purchase Money Security Interest is proposed to be
created is not then prohibited by this Agreement;


                              (ii)
Any Purchase Money Security Interest shall attach only to the property or asset
so acquired in such transaction or any addition thereto or replacement thereof
and shall not extend to or cover any other assets or properties of any Borrower
or any of their respective Subsidiaries; and


                              (iii)
The Indebtedness secured or covered by any Purchase Money Security Interest
together with any other Indebtedness secured by the property or asset acquired
shall not exceed 100% of the lesser of the cost or fair market value of the
property or asset acquired and shall not be renewed, extended or prepaid from
the proceeds of any borrowing by any Borrower or any of their respective
Subsidiaries;


79





                    (j)
Liens in favor of customers for amounts paid to any Borrower or any Subsidiary
of any Borrower as progress payments;


                    (k)
Liens to secure non-recourse Indebtedness, subject to the restrictions set
forth in Section 7.03; and


                    (l)
Liens to secure Deemed Debt; provided that,
such Liens are limited to the accounts receivable and/or inventory financed in
connection with the incurring of such Deemed Debt.


If, for any reason,
whether in violation of this Section 7.01 or upon consent of the
Required Lenders in their discretion, any Lien shall secure any of the Private
Placements, then the Obligations shall be equally and ratably secured by all
property subject to such Lien, in each case pursuant to documentation reasonably
satisfactory to the Administrative Agent.


          7.02
[Reserved]. 


          7.03
Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:


                    (a)
Indebtedness under the Loan Documents;


                    (b)
Indebtedness outstanding (or committed to) on the date hereof and listed on Schedule
7.03 and any refinancings, refundings, renewals or extensions thereof;
provided that (i) the amount of such Indebtedness is not increased at the time
of such refinancing, refunding, renewal or extension except by an amount equal
to a reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder and (ii) the terms relating
to principal amount, amortization, maturity, collateral (if any) and
subordination (if any), and other material terms taken as a whole, of any such
refinancing, refunding, renewing or extending Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith,
are no less favorable in any material respect to the Loan Parties or the
Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest
rate applicable to any such refinancing, refunding, renewing or extending
Indebtedness does not exceed the then applicable market interest rate;


                    (c)
Guarantees by Subsidiary Guarantors of the Private Placements and of Additional
Indebtedness;


                    (d)
Indebtedness which in the aggregate for all Subsidiaries of the Company at any
one time does not exceed $85,000,000.00; 


                    (e)
Deemed Debt which in the aggregate at any one time does not exceed
$175,000,000.00; 


                    (f)
Indebtedness of the Company and Subsidiary Guarantors incurred after the date
hereof that: (i) is not senior to the Obligations; (ii) is not, after taking
into effect any simultaneous amendments to this Agreement, subject to
additional covenants, or covenants more 


80





restrictive, than those
set forth herein in Articles VI and VII, unless such covenants are
substantively identical to covenants originally contained in the note purchase
agreements dated September 25, 2003, December 1, 2005 and December 8, 2011 for
the Private Placements entered into on such dates, without giving effect to any
amendment thereof; and (iii) if such Indebtedness has a principal amount of
$50,000,000.00 or more, does not provide for any maturity, payment or
prepayment of the principal amount of such Indebtedness prior to the date six
months following the Maturity Date in effect at the time such Indebtedness is
incurred; provided, that on the date of the incurrence of such
Indebtedness, and both before and after the existence thereof and the
application of any proceeds related thereto, (A) there is no Default with
respect to any Borrower or any Subsidiaries of any Borrower and (B) the Company
must be in pro forma compliance with the financial covenants set forth in Section
7.11; and


                    (g)
Swap Contracts entered into not for speculative purposes but in connection with
hedging interest rate or currency exchange exposure of such Person.


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


                    (a)
any Subsidiary may merge with (i) the Company, provided that the Company shall
be the continuing or surviving Person, or (ii) any one or more other
Subsidiaries, provided that when any Subsidiary Guarantor is merging with
another Subsidiary, the Subsidiary Guarantor shall be the continuing or
surviving Person; and


                    (b)
any Subsidiary may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Company or to another Subsidiary;
provided that if the transferor in such a transaction is a Subsidiary
Guarantor, then the transferee must either be the Company or a Subsidiary
Guarantor.


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


                    (a)
Dispositions of Investments in the ordinary course of business by any Borrower
or any Subsidiary of any Borrower, including without limitation, transactions
undertaken for the purpose of restructuring all or a part of the portfolio of
Investments owned by such Borrower or Subsidiary thereof; and


                    (b)
Dispositions of its property that together with all other property of its
Subsidiaries previously leased, sold or disposed of (other than Investments
sold in the ordinary course of business by Subsidiaries of Borrowers) as
permitted by this Section 7.05 since the date hereof do not constitute a
Substantial Portion of the property of the Company and its consolidated
Subsidiaries; and


                    (c)
non-exclusive licenses of IP Rights or other property in the ordinary course of
business,


81





          provided, however, that any
Disposition pursuant to clauses (a) through (c) shall be for fair market value.


          7.06
Restricted Payments. Declare or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, except that, so long as no Default shall have occurred and be continuing at
the time of any action described below or would result therefrom (including pro forma compliance on a pre- and
post-Restricted Payment basis with the financial covenants set forth in Section
7.11):


                    (a)
each Subsidiary may make Restricted Payments to the Company, the Subsidiary
Guarantors and any other Person that owns an Equity Interest in such
Subsidiary, ratably according to their respective holdings of the type of
Equity Interest in respect of which such Restricted Payment is being made;


                    (b)
the Company and each Subsidiary may declare and make dividend payments or other
distributions payable in the common stock or other Equity Interests of such
Person or cash; and


                    (c)
the Company and each Subsidiary may purchase, redeem or otherwise acquire
Equity Interests issued by it. 


          7.07
Change in Nature of Business. Engage in any material line of
business substantially different from those lines of business conducted by the
Company and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto.


          7.08
Transactions with Affiliates. Enter into any transaction of
any kind with any Affiliate of the Company, whether or not in the ordinary
course of business, other than on fair and reasonable terms substantially as
favorable to the Company or such Subsidiary as would be obtainable by the
Company or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than an Affiliate, provided that the foregoing restriction
shall not apply to transactions between or among the Company and any Subsidiary
Guarantor or between and among any Subsidiary Guarantors.


          7.09
Burdensome Agreements. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that: (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to the Company or any
Subsidiary Guarantor or to otherwise transfer property to the Company or any Subsidiary
Guarantor; (ii) of any Subsidiary to Guarantee the Indebtedness of the Company;
or (iii) of the Company or any Subsidiary to create, incur, assume or suffer to
exist Liens on property of such Person; or (b) requires the grant of a Lien to
secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person; provided, however,
that (A) the foregoing clause (iii) shall not prohibit any negative pledge
incurred or provided in favor of any holder of Indebtedness permitted under Section
7.03(e) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness, and (B) the foregoing
clauses (a)(ii) and (a)(iii) shall not prohibit the inclusion of negative
covenants as to the incurrence of additional Indebtedness or Liens that do not
prohibit the Loan Parties’ incurrence of the Obligations (as in effect from
time to time) or the granting of Liens by the Loan Parties in favor of the
Administrative Agent for the benefit of the Lenders in all or any portion of
their respective assets and properties, and the foregoing clause 


82





(b) shall not prohibit
the inclusion of a conditional covenant of any Loan Party to grant pari passu
Liens to the holders of a Private Placement substantially the same as the
covenant to such effect set forth at the end of Section 7.01.


          7.10
Use of Proceeds. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally incurred for such
purpose.


          7.11
Financial Covenants.


                    (a)
Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio as of the end of any fiscal quarter of the Company to be less
than 3.0x.


                    (b)
Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at any
time to exceed 60.0%.


                    (c)
Minimum Consolidated Net Worth. Permit Consolidated Net Worth to be less
than the sum of (a) $692,084,000.00, plus (b) an amount equal to 50% of the
Borrower’s aggregate Consolidated Net Income (but only if a positive number)
for each completed fiscal quarter of the Borrower at such time ending on or
after September 30, 2011. 


          7.12
Material Subsidiaries. The Company will not permit the total
assets of all Material Subsidiaries and the Company to be less than 85% of the
total assets of the Company and its Subsidiaries (determined on a consolidated
basis) as of the end of the most recently completed fiscal quarter for which
financial information is then available, determined in accordance with GAAP;
provided that the Company shall have the right to designate any of its
Subsidiaries that is not then a Material Subsidiary as a Material Subsidiary in
order to comply with this Section, so long as such designation is made no later
than the last day of delivery of a quarterly Compliance Certificate hereunder
for the end of the preceding fiscal quarter for which such designation is made.


          7.13
Mergers; Acquisitions; Investments. No Borrower will, nor
will it permit any of its Subsidiaries to:(a) merge or consolidate with any
Person, (b) acquire all or substantially all of the assets or any of the
capital stock of any Person, or (c) make any other Investment; provided, however, that (i) any Borrower or
any of its Subsidiaries may merge or consolidate with another Person or acquire
all or substantially all of the assets or capital stock of another Person if
(A) such Borrower or such Subsidiary, as the case may be, is the surviving
corporation, (B) the Person whose capital stock or assets are being acquired or
that is merging into a Borrower or any Subsidiary of a Borrower is in a similar
line of business as such Borrower, as determined by the Administrative Agent,
(C) the Company and its Subsidiaries will be in compliance, on a pro forma basis, both before and after the
merger, consolidation or acquisition, with each of the financial covenants in Section
7.11, and (D) after giving effect to any such merger, consolidation or
acquisition, no Default would then exist and (ii) any Borrower or any of its
Subsidiaries may make any other Investment if the Company and its Subsidiaries
will be in compliance, on a pro forma
basis, both before and after such Investment, with each of the 


83





financial covenants in Section
7.11 and subject to compliance with Section 6.13 with respect to
Subsidiaries as Guarantors.


          7.14
Terrorism Sanctions Regulations. No Borrower will, nor will
it permit any of its Subsidiaries to, (a) become an OFAC Listed Person (as
defined in Section 5.18) or (b) have any investments in, or engage in
any dealings or transactions with, any Blocked Person (as defined in Section
5.18).


ARTICLE
VIII.

EVENTS OF DEFAULT AND REMEDIES


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


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


          (b)
Specific Covenants. (i) The Company fails to perform or observe any
term, covenant or agreement contained in (A) any of Section 6.10, 6.11,
7.01, 7.03, 7.06, 7.11 and 7.12 or (B) any of Section 6.01, 6.02,
6.03 or 6.13 and such failure continues for five days, or (ii) any
Subsidiary Guarantor fails to perform or observe any term, covenant or
agreement contained in the Subsidiary Guaranty; or


          (c)
Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days or if there occurs an “event of default” as defined in
any other Loan Document after expiration of any applicable grace period
contained therein; or


          (d)
Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Company or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made, except that it
shall be an Event of Default if any such representation, warranty,
certification or statement of fact that is qualified by reference to
materiality or Material Adverse Effect shall be incorrect or misleading in any
respect; or


          (e)
Cross-Default. (i) The Company or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (B) fails
to observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the 


84





holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which the Company or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the
Company or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Company or such Subsidiary as a
result thereof is greater than the Threshold Amount; or


          (f)
Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or


          (g)
Inability to Pay Debts; Attachment. (i) The Company or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within 30 days after its issue or levy; or


          (h)
Judgments. There is entered against the Company or any Subsidiary (i)
any one final judgment or order for the payment of money in an amount exceeding
$35,000,000.00 or any final judgments or orders for the payment of money in an
aggregate amount exceeding $50,000,000.00 (in any case, to the extent not
covered by independent third-party insurance as to which the insurer does not
dispute coverage), or (ii) any one or more non-monetary final judgments that
have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of thirty (30) consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is
not in effect; or 


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


85





installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or


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


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


          (l)
Company Sale of any Borrower, etc. The Company shall cease to own, beneficially
or of record, directly or indirectly, 100% of the issued and outstanding shares
of capital stock of any Material Subsidiary or any other Borrower.


          8.02
Remedies Upon Event of Default. If any Event of Default
occurs and is continuing, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Lenders, take any or all of the
following actions:


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


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


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


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


provided,
however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions shall automatically terminate,
the unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Company to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further
act of the Administrative Agent or any Lender.


          8.03
Application of Funds. After the exercise of remedies provided
for in Section 8.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso 


86





to Section 8.02),
any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:


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


                    Second,
to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees)
payable to the Lenders and the L/C Issuer (including fees, charges and
disbursements of counsel to the respective Lenders and the L/C Issuer
(including fees and time charges for attorneys who may be employees of any
Lender or the L/C Issuer) and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;


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


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


                    Fifth,
to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and


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


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


ARTICLE
IX. ADMINISTRATIVE AGENT


          9.01
Appointment and Authority. 


          Each
of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with 


87





such actions and powers
as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the L/C Issuer,
and neither any Borrower nor any other
Loan Party shall have rights as a third party beneficiary of any of such
provisions. It is understood and agreed that the use of the term “agent” herein
or in any other Loan Documents (or any other similar term) with reference to
the Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead such term is used as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
contracting parties.


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


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


	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

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

 


88





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


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


          9.04
Reliance by Administrative Agent. 


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


          9.05
Delegation of Duties. The Administrative Agent may perform
any and all of its duties and exercise its rights and powers hereunder or under
any other Loan Document by or through any one or more sub-agents appointed by
the Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent. 


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


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


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


90





by any of them while the
retiring or removed Administrative Agent was acting as Administrative Agent. 


          (d)
Any resignation by Bank of America as Administrative Agent pursuant to this
Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. If Bank of America resigns as an L/C Issuer, it shall retain all the
rights, powers, privileges and duties of the L/C Issuer hereunder with respect
to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto,
including the right to require the Lenders to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
Upon the appointment by the Company of a successor L/C Issuer or Swing Line
Lender hereunder (which successor shall in all cases be a Lender other than a
Defaulting Lender and shall have a right to accept or decline such
appointment), (a) such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring L/C Issuer or
Swing Line Lender, as applicable, (b) the retiring L/C Issuer and Swing
Line Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the
successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.


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


          9.08
Guaranty Matters. The Lenders and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion, to
release any Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.


          Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release any
Subsidiary Guarantor from its obligations under the Subsidiary Guaranty
pursuant to this Section 9.08.


          9.09
No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers, Syndication Agents or
Documentation Agents listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the 


91





other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent, a Lender or
the L/C Issuer hereunder.


          The
Administrative Agent shall not be responsible for or have a duty to ascertain
or inquire into any representation or warranty regarding the existence, value
or collectability of any collateral, the existence, priority or perfection of
the Administrative Agent’s Lien thereon, or any certificate prepared by any
Loan Party in connection therewith, nor shall the Administrative Agent be
responsible or liable to the Lenders for any failure to monitor or maintain any
portion of any collateral.


ARTICLE
X.

MISCELLANEOUS


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


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


          (b)
extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such
Lender;


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


          (d)
reduce the principal of, or the rate of interest specified herein on, any Loan
or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section
10.01) any fees or other amounts payable hereunder or under any other Loan
Document, or change the manner of computation of any financial ratio (including
any change in any applicable defined term) used in determining the Applicable
Rate that would result in a reduction of any interest rate on any Loan or L/C
Borrowing or any fee payable hereunder without the written consent of each
Lender directly affected thereby; provided, however, that only the consent of
the Required Lenders shall be necessary to amend the definition of “Default Rate”
or to waive any obligation of any Borrower to pay interest or Letter of Credit
Fees at the Default Rate;


          (e)
change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent
of each Lender;


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


92








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


          (h)
release all or substantially all of the Subsidiary Guarantors
from the Subsidiary Guaranty, amend Section 2.14(c) to limit the joint and
several liability of any Borrower for the Obligations, or add a Foreign
Subsidiary as a Borrower but not require the Company to guaranty such Foreign
Subsidiary’s Obligations, in each case without the written consent of each
Lender;


and, provided further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by the L/C Issuer in addition to the
Lenders required above, affect the rights or duties of the L/C Issuer under
this Agreement or any Issuer Document relating to any Letter of Credit issued
or to be issued by it; (ii) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Lender in addition to the Lenders required
above, affect the rights or duties of the Swing Line Lender under this
Agreement; (iii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; (iv) Section 10.06(h) may not be amended,
waived or otherwise modified without the consent of each Granting Lender all or
any part of whose Loans are being funded by an SPC at the time of such
amendment, waiver or other modification; and (v) the Fee Letters may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder (and any amendment, waiver or consent which by its
terms requires the consent of all Lenders or each affected Lender may be
effected with the consent of the applicable Lenders other than Defaulting
Lenders), except that (x) the Commitment of any Defaulting Lender may not
be increased or extended without the consent of such Lender and (y) any
waiver, amendment or modification requiring the consent of all Lenders or each
affected Lender that by its terms affects any Defaulting Lender
disproportionately adversely relative to other affected Lenders shall require
the consent of such Defaulting Lender.


          10.02
Notices; Effectiveness; Electronic Communication.


          (a) Notices
Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (b)
below), all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by facsimile as follows, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:


	
  

 	
  

 
	
  

 	
           (i) if to
 the Borrowers, the Administrative Agent, the L/C Issuer or the Swing Line
 Lender, to the address, facsimile number, electronic mail address or
 telephone number specified for such Person on Schedule 10.02; and 

 
	
  

 	
  

 
	
  

 	
           (ii) if
 to any other Lender, to the address, facsimile number, electronic mail address
 or telephone number specified in its Administrative Questionnaire.

 


93





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


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


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


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


94





any Agent Party have any liability to any Borrower, any Lender, the L/C
Issuer or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).


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


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


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


          Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained 


95





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


          10.04
Expenses; Indemnity; Damage Waiver. 


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


          (b) Indemnification
by the Company. The Company shall indemnify the Administrative Agent (and
any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party
of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold
harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by any Borrower or any
other Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery 


96





of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties
hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by any Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to any Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Company or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto, in all cases, whether or not caused by or arising, in whole or
in part, out of the comparative, contributory or sole negligence of the
Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by the
Company or any other Loan Party against an Indemnitee for breach in bad faith
of such Indemnitee’s obligations hereunder or under any other Loan Document, if
the Company or such other Loan Party has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent
jurisdiction. Without limiting the provisions of Section 3.01(c),
this Section 10.04(b) shall not apply with respect to Taxes other
than any Taxes that represent losses, claims, damages, etc. arising from any
non-Tax claim.


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


          (d) Waiver
of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Borrower shall assert, and hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any 


97





other Loan Document or any agreement or instrument contemplated hereby,
the transactions contemplated hereby or thereby, any Loan or Letter of Credit
or the use of the proceeds thereof. No Indemnitee referred to in subsection (b)
above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.


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


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


          10.05
Payments Set Aside. To the extent that any payment by
or on behalf of any Borrower is made to the Administrative Agent, the L/C
Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, the L/C Issuer or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such setoff had not occurred,
and (b) each Lender and the L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the applicable Overnight Rate from time to time in
effect, in the applicable currency of such recovery or payment. The obligations
of the Lenders and the L/C Issuer under clause (b) of the preceding sentence
shall survive the payment in full of the Obligations and the termination of
this Agreement.


          10.06
Successors and Assigns.


          (a) Successors
and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that no Borrower or other Loan Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, (iii) by way of
pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section, or (iv) to an SPC in accordance with
the provisions of subsection (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors 


98





and assigns permitted hereby, Participants to the extent provided in subsection
(d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the L/C Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.


          (b) Assignments
by Lenders. Any Lender may at any time assign to one or more assignees all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans (including for purposes of this subsection
(b), participations in L/C Obligations and in Swing Line Loans) at the time
owing to it); provided that any such assignment shall be subject to the
following conditions:


	
  

 	
  

 	
  

 
	
  

 	
           (i) Minimum
 Amounts.

 
	
  

 	
  

 	
  

 
	
  

 	
  

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

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (B) in
 any case not described in subsection (b)(i)(A) of this Section, the
 aggregate amount of the Commitment (which for this purpose includes Loans
 outstanding thereunder) or, if the Commitment is not then in effect, the principal
 outstanding balance of the Loans of the assigning Lender subject to each such
 assignment, determined as of the date the Assignment and Assumption with
 respect to such assignment is delivered to the Administrative Agent or, if
 “Trade Date” is specified in the Assignment and Assumption, as of the Trade
 Date, shall not be less than $5,000,000.00 unless each of the Administrative
 Agent and, so long as no Event of Default has occurred and is continuing, the
 Company otherwise consents (each such consent not to be unreasonably withheld
 or delayed); provided, however that concurrent assignments to
 members of an Assignee Group and concurrent assignments from members of an
 Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and
 members of its Assignee Group) will be treated as a single assignment for
 purposes of determining whether such minimum amount has been met.

 
	
  

 	
  

 	
  

 
	
  

 	
           (ii) Proportionate
 Amounts. Each partial assignment shall be made as an assignment of a
 proportionate part of all the assigning Lender’s rights and obligations under
 this Agreement with respect to the Loans or the Commitment assigned, except
 that this clause (ii) shall not apply to the Swing Line Lender’s rights
 and obligations in respect of Swing Line Loans;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
  

 	
           (A) the
 consent of the Company (such consent not to be unreasonably withheld or
 delayed) shall be required unless (1) an Event of Default has occurred 

 


99









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 and is continuing at the time of such assignment or (2) such
 assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;

 
	
  

 	
  

 	
  

 
	
  

 	
  

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

 
	
  

 	
  

 	
  

 
	
  

 	
  

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

 
	
  

 	
  

 	
  

 
	
  

 	
           (iv) Assignment
 and Assumption. The parties to each assignment shall execute and deliver
 to the Administrative Agent an Assignment and Assumption, together with a
 processing and recordation fee in the amount of $3,500.00; provided, however,
 that the Administrative Agent may, in its sole discretion, elect to waive
 such processing and recordation fee in the case of any assignment. The
 assignee, if it is not a Lender, shall deliver to the Administrative Agent an
 Administrative Questionnaire.

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 	
  

 
	
  

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

 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and 


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Assumption, the assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05, and 10.04
with respect to facts and circumstances occurring prior to the effective date
of such assignment; provided, that except to the extent otherwise
expressly agreed by the affected parties, no assignment by a Defaulting Lender
will constitute a waiver or release of any claim of any party hereunder arising
from that Lender’s having been a Defaulting Lender. Upon request, each Borrower
(at its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this
Section.


          (c) Register.
The Administrative Agent, acting solely for this purpose as an agent of the
Borrowers (and such agency being solely for tax purposes), shall maintain at
the Administrative Agent’s Office in the United States a copy of each
Assignment and Assumption delivered to it (or the equivalent thereof in
electronic form) and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amounts (and stated
interest) of the Loans and L/C Obligations owing to, each Lender pursuant to
the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive absent manifest error, and the Borrowers, the
Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by each of the Borrowers and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.


          (d) Participations.
Any Lender may at any time, without the consent of, or notice to, any Borrower
or the Administrative Agent, sell participations to any Person (other than a
natural Person, a Defaulting Lender or the Company or any of the Company’s
Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion
of such Lender’s rights and/or obligations under this Agreement (including all
or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the
Borrowers, the Administrative Agent, the Lenders and the L/C Issuer shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. For the avoidance of
doubt, each Lender shall be responsible for the indemnity under Section 10.04(c)
without regard to the existence of any participation.


          Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the


101





Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 10.01 that affects such
Participant. The Company agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section (it being understood
that the documentation required under Section 3.01(e) shall be delivered
to the Lender who sells the participation) to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section; provided that such Participant (A) agrees to be
subject to the provisions of Sections 3.06 and 10.13 as if it
were an assignee under paragraph (b) of this Section and (B) shall
not be entitled to receive any greater payment under Sections 3.01 or 3.04,
with respect to any participation, than the Lender from whom it acquired the
applicable participation would have been entitled to receive, except to the
extent such entitlement to receive a greater payment results from a Change in
Law that occurs after the Participant acquired the applicable participation.
Each Lender that sells a participation agrees, at the Company’s request and
expense, to use reasonable efforts to cooperate with the Company to effectuate
the provisions of Section 3.06 with respect to any Participant. To
the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.08 as though it were a Lender; provided
that such Participant agrees to be subject to Section 2.13 as
though it were a Lender. Each Lender that sells a participation shall, acting
solely for this purpose as an agent of the Company, maintain a register on
which it enters the name and address of each Participant and the principal
amounts (and stated interest) of each Participant’s interest in the Loans or
other obligations under the Loan Documents (the “Participant Register”);
provided that no Lender shall have any obligation to disclose all or any
portion of the Participant Register (including the identity of any Participant
or any information relating to a Participant’s interest in any commitments,
loans, letters of credit or its other obligations under any Loan Document) to
any Person except to the extent that such disclosure is necessary to establish
that such commitment, loan, letter of credit or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent
manifest error, and such Lender shall treat each Person whose name is recorded
in the Participant Register as the owner of such participation for all purposes
of this Agreement notwithstanding any notice to the contrary. For the avoidance
of doubt, the Administrative Agent (in its capacity as Administrative Agent)
shall have no responsibility for maintaining a Participant Register.


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


          (f) Special
Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Company (an “SPC”)
the option to provide all or any part of any Committed Loan that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund
any Committed Loan, and (ii) if an SPC elects not to exercise such option
or otherwise fails 


102





to make all or any part of such Committed Loan, the Granting Lender
shall be obligated to make such Committed Loan pursuant to the terms hereof or,
if it fails to do so, to make such payment to the Administrative Agent as is
required under Section 2.12(b)(ii). Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrowers under this Agreement (including its obligations
under Section 3.04), (ii) no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement for which a Lender
would be liable, and (iii) the Granting Lender shall for all purposes,
including the approval of any amendment, waiver or other modification of any
provision of any Loan Document, remain the lender of record hereunder. The
making of a Committed Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such Committed Loan were
made by such Granting Lender. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior debt of any
SPC, it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State
thereof. Notwithstanding anything to the contrary contained herein, any SPC may
(i) with notice to, but without prior consent of the Company and the
Administrative Agent and with the payment of a processing fee in the amount of
$3,500.00 (which processing fee may be waived by the Administrative Agent in
its sole discretion), assign all or any portion of its right to receive payment
with respect to any Committed Loan to the Granting Lender and
(ii) disclose on a confidential basis any non-public information relating
to its funding of Committed Loans to any rating agency, commercial paper dealer
or provider of any surety or Guarantee or credit or liquidity enhancement to
such SPC.


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


103





succession or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such
Letters of Credit.


          10.07
Treatment of Certain Information; Confidentiality.
Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
trustees, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or any Eligible Assignee invited to
be a Lender pursuant to Section 2.15(c), or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to a Borrower and its obligations, (g) with the consent of
the Company, or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than
the Company. 


          For
purposes of this Section, “Information” means all information received
from the Company or any Subsidiary relating to the Company or any Subsidiary or
any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Company or any Subsidiary, provided
that, in the case of information received from the Company or any Subsidiary
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information. 


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


          10.08
Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender, the L/C Issuer and each of their
respective Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by 


104





such Lender, the L/C Issuer or any such Affiliate to or for the credit
or the account of any Borrower or any other Loan Party against any and all of
the obligations of such Borrower or such Loan Party now or hereafter existing
under this Agreement or any other Loan Document to such Lender or the L/C
Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have
made any demand under this Agreement or any other Loan Document and although
such obligations of such Borrower or such Loan Party may be contingent or
unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the Company and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


          10.09
Interest Rate Limitation. Notwithstanding anything to
the contrary contained in any Loan Document, the interest paid or agreed to be
paid under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the “Maximum Rate”). If the
Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Company.
In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is
not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest throughout
the contemplated term of the Obligations hereunder.


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


          10.11
Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the


105





Administrative
Agent or any Lender may have had notice or knowledge of any Default at the time
of any Credit Extension, and shall continue in full force and effect as long as
any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.


          10.12
Severability. If any provision of this Agreement or
the other Loan Documents is held to be illegal, invalid or unenforceable,
(a) the legality, validity and enforceability of the remaining provisions
of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without limiting the
foregoing provisions of this Section 10.12, if and to the extent
that the enforceability of any provisions in this Agreement relating to
Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, the L/C Issuer or the Swing Line
Lender, as applicable, then such provisions shall be deemed to be in effect
only to the extent not so limited.


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


          (a) the
Company shall have paid (or caused a Designated Borrower to pay) to the
Administrative Agent the assignment fee specified in Section 10.06(b);


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


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


          (d) such
assignment does not conflict with applicable Laws.


106






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


          10.14
Governing Law; Jurisdiction; Etc. 


          (a)
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401
AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.


          (b)
SUBMISSION TO JURISDICTION. EACH BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE CITY AND
COUNTY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT OF THE SECOND
CIRCUIT, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST ANY BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.


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


107






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


          (e)
APPOINTMENT OF CURTISS-WRIGHT AS PROCESS AGENT. IN ADDITION TO THE
CONSENT TO SERVICE SET FORTH IN CLAUSE (d) HEREOF, ANY SUBSIDIARY THAT IS NOT A
SUBSIDIARY THAT IS ORGANIZED UNDER THE LAWS OF ANY STATE OF THE UNITED STATES
OR THE DISTRICT OF COLUMBIA THAT BECOMES A BORROWER HEREUNDER (INCLUDING
CURTISS-WRIGHT ANTRIEBSTECHNIK GMBH) HEREBY IRREVOCABLY AND UNCONDITIONALLY
APPOINTS THE COMPANY AS ITS AGENT TO RECEIVE, ON BEHALF OF ITSELF AND ON BEHALF
OF ITS PROPERTY, SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER
PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING, AND THE COMPANY
HEREBY IRREVOCABLY AND UNCONDITIONALLY ACCEPTS SUCH APPOINTMENT. SUCH SERVICE
MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO SUCH SUBSIDIARY
IN CARE OF THE COMPANY AT ITS ADDRESS FOR NOTICES AS SET FORTH IN SECTION
10.02, AND SUCH SUBSIDIARY HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE
COMPANY TO ACCEPT SUCH SERVICE ON ITS BEHALF.


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


          10.16
No Advisory or Fiduciary Responsibility. In connection with
all aspects of each transaction contemplated hereby (including in connection
with any amendment, waiver or other modification hereof or of any other Loan
Document), each Borrower and each other
Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i)
(A) the arranging and other services regarding this Agreement provided by
the Administrative Agent, the Joint Lead Arrangers and the Lenders are
arm’s-length commercial transactions between such Borrower, each other Loan Party and their respective Affiliates, on the
one hand, and the Administrative Agent,
the Joint Lead Arrangers and the
Lenders, on the other hand, (B) each of such Borrower and
the other Loan Parties has consulted its own legal, accounting,
regulatory and 


108





tax advisors to the
extent it has deemed appropriate, and (C) such Borrower and each other Loan Party is capable
of evaluating, and understands and accepts, the terms, risks and conditions of
the transactions contemplated hereby and by the other Loan Documents; (ii)
(A) each of the Administrative Agent, the Joint Lead Arrangers
and each Lender is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and
will not be acting as an advisor, agent or fiduciary for such Borrower, any other Loan Party or any of their respective Affiliates, or any
other Person and (B) neither the Administrative Agent, nor any Joint Lead Arranger, nor any Lender has any obligation to such Borrower, any other Loan Party or any of their respective Affiliates with
respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent, the Joint Lead Arrangers and the Lenders and
their respective Affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of such Borrower, the other Loan Parties and their respective Affiliates, and
neither the Administrative Agent, nor
any Joint Lead Arranger, nor any Lender has any obligation to disclose
any of such interests to the Borrowers, any other Loan Party or any of their
respective Affiliates. To the fullest extent permitted by law, each of the
Borrowers and the other Loan Parties
hereby waives and releases any claims that it may have against the
Administrative Agent, the Joint Lead Arrangers and any Lender with
respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.


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


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


          10.19 Time of the Essence. Time is of the
essence of the Loan Documents.


          10.20 Judgment Currency. If, for the
purposes of obtaining judgment in any court, it is necessary to convert a sum
due hereunder or any other Loan Document in one currency into another currency,
the rate of exchange used shall be that at which in accordance with normal 


109





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


          10.21 Designation of Loans Under Private Placements.
The Loans shall at all times be the “Principal Credit Facility” (or qualify
under such other descriptive terms as may be used to describe designated senior
debt) for purposes of and as defined in the note purchase agreements for each
of the Private Placements.


          10.22 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.


 [Remainder of page intentionally left blank]


110





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


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 CURTISS-WRIGHT CORPORATION

 
	
  

 	
 CURTISS-WRIGHT CONTROLS, INC.

 
	
  

 	
 METAL IMPROVEMENT COMPANY, LLC

 
	
  

 	
 CURTISS-WRIGHT FLOW CONTROL CORPORATION

 
	
  

 	
 CURTISS-WRIGHT FLOW CONTROL SERVICE CORPORATION

 
	
  

 	
 CURTISS-WRIGHT ELECTRO-MECHANICAL CORPORATION

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name: 

 	
 Harry Jakubowitz

 
	
  

 	
  

 	
  

 
	
  

 	
 Title: 

 	
 Treasurer of each of the
 entities listed above

 


S - 1
Signature Page to Third Amended and Restated Credit Agreement









	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 BANK
 OF AMERICA, N.A., as 

 
	
  

 	
 Administrative Agent

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 


S - 2
Signature Page to Third Amended and Restated Credit Agreement









	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 BANK OF AMERICA, N.A., as a Lender, L/C
 Issuer and Swing Line Lender

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 


S - 3
Signature Page to Third Amended and Restated Credit Agreement









	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 JPMORGAN CHASE BANK, N.A., as a
 Syndication Agent and as a Lender

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 


S - 4
Signature Page to Third Amended and Restated Credit Agreement









	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 WELLS FARGO BANK, NATIONAL ASSOCIATION, as
 a Syndication Agent and as a Lender

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	

 



 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 


S - 5
Signature Page to Third Amended and Restated Credit Agreement









	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 RBS CITIZENS, N.A., as Documentation Agent and
 as a Lender

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 


S - 6
Signature Page to Third Amended and Restated Credit Agreement









	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 PNC BANK, NATIONAL ASSOCIATION, as a
 Lender

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 


S - 7
Signature Page to Third Amended and Restated Credit Agreement









	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 THE BANK OF NEW YORK MELLON, as
 a Lender

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 


S - 8
Signature Page to Third Amended and Restated Credit Agreement









	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 HSBC BANK USA, N.A., as a Lender

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 


S - 9
Signature Page to Third Amended and Restated Credit Agreement





SCHEDULE 1.01


MANDATORY
COST FORMULAE


	
  

 	
  

 	
  

 
	
 1.

 	
 The Mandatory Cost (to
 the extent applicable) is an addition to the interest rate to compensate
 Lenders for the cost of compliance with:

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 the requirements of the
 Bank of England and/or the Financial Services Authority (or, in either case,
 any other authority which replaces all or any of its functions); or

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 the requirements of the
 European Central Bank.

 
	
  

 	
  

 	
  

 
	
 2.

 	
 On the first day of
 each Interest Period (or as soon as possible thereafter) the Administrative
 Agent shall calculate, as a percentage rate, a rate (the “Additional Cost
 Rate”) for each Lender, in accordance with the paragraphs set out below.
 The Mandatory Cost will be calculated by the Administrative Agent as a
 weighted average of the Lenders’ Additional Cost Rates (weighted in
 proportion to the percentage participation of each Lender in the relevant
 Loan) and will be expressed as a percentage rate per annum. The
 Administrative Agent will, at the request of the Company or any Lender,
 deliver to the Company or such Lender as the case may be, a statement setting
 forth the calculation of any Mandatory Cost.

 
	
  

 	
  

 	
  

 
	
 3.

 	
 The Additional Cost
 Rate for any Lender lending from a Lending Office in a Participating Member
 State will be the percentage notified by that Lender to the Administrative
 Agent. This percentage will be certified by such Lender in its notice to the
 Administrative Agent to be its reasonable determination of the cost
 (expressed as a percentage of such Lender’s participation in all Loans made
 from such Lending Office) of complying with the minimum reserve requirements
 of the European Central Bank in respect of Loans made from that Lending
 Office.

 
	
  

 	
  

 	
  

 
	
 4.

 	
 The Additional Cost
 Rate for any Lender lending from a Lending Office in the United Kingdom will
 be calculated by the Administrative Agent as follows:

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 in relation to any Loan
 in Sterling:

 





	
  

 	
  

 	
  

 
	
 AB+C(B-D)+E x 0.01

 	
  

 	
 per cent per annum

 
	
 100 - (A+C)

 	
  

 






	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 in relation to any Loan
 in any currency other than Sterling:

 





	
  

 	
  

 	
  

 
	
 E x 0.01

 	
  

 	
 per cent per annum

 
	
 300

 	
  

 


Where:


	
  

 	
  

 	
  

 
	
  

 	
 “A”

 	
 is the percentage of
 Eligible Liabilities (assuming these to be in excess of any stated minimum)
 which that Lender is from time to time required to maintain as 

 


Schedule 1.01

Page 1









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 an interest free cash
 ratio deposit with the Bank of England to comply with cash ratio
 requirements.

 
	
  

 	
  

 	
  

 
	
  

 	
 “B”

 	
 is the percentage rate
 of interest (excluding the Applicable Rate, the Mandatory Cost and any
 interest charged on overdue amounts pursuant to the first sentence of Section
 2.08(b) and, in the case of interest (other than on overdue amounts)
 charged at the Default Rate, without counting any increase in interest rate
 effected by the charging of the Default Rate) payable for the relevant
 Interest Period of such Loan.

 
	
  

 	
  

 	
  

 
	
  

 	
 “C”

 	
 is the percentage (if
 any) of Eligible Liabilities which that Lender is required from time to time
 to maintain as interest bearing Special Deposits with the Bank of England.

 
	
  

 	
  

 	
  

 
	
  

 	
 “D”

 	
 is the percentage rate
 per annum payable by the Bank of England to the Administrative Agent on
 interest bearing Special Deposits.

 
	
  

 	
  

 	
  

 
	
  

 	
 “E”

 	
 is designed to
 compensate Lenders for amounts payable under the Fees Rules and is calculated
 by the Administrative Agent as being the average of the most recent rates of
 charge supplied by the Lenders to the Administrative Agent pursuant to paragraph
 7 below and expressed in pounds per £1,000,000.00.

 
	
  

 	
  

 	
  

 
	
 5.

 	
 For the purposes of
 this Schedule:

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 “Eligible
 Liabilities” and “Special Deposits” have the meanings given to
 them from time to time under or pursuant to the Bank of England Act 1998 or
 (as may be appropriate) by the Bank of England;

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 “Fees Rules”
 means the rules on periodic fees contained in the FSA Supervision Manual or
 such other law or regulation as may be in force from time to time in respect
 of the payment of fees for the acceptance of deposits;

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 “Fee Tariffs”
 means the fee tariffs specified in the Fees Rules under the activity group
 A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required
 pursuant to the Fees Rules but taking into account any applicable discount
 rate); and

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 “Tariff Base”
 has the meaning given to it in, and will be calculated in accordance with,
 the Fees Rules.

 
	
  

 	
  

 	
  

 
	
 6.

 	
 In application of the
 above formulae, A, B, C and D will be included in the formulae as percentages
 (i.e.
 5% will be included in the formula as 5 and not as 0.05). A negative result
 obtained by subtracting D from B shall be taken as zero. The resulting
 figures shall be rounded to four decimal places.

 
	
  

 	
  

 	
  

 
	
 7.

 	
 If requested by the
 Administrative Agent or the Company, each Lender with a Lending Office in the
 United Kingdom or a Participating Member State shall, as soon as practicable
 after publication by the Financial Services Authority, supply to the 

 


Schedule 1.01

Page 2









	
  

 	
  

 	
  

 
	
  

 	
 Administrative Agent
 and the Company, the rate of charge payable by such Lender to the Financial
 Services Authority pursuant to the Fees Rules in respect of the relevant
 financial year of the Financial Services Authority (calculated for this
 purpose by such Lender as being the average of the Fee Tariffs applicable to
 such Lender for that financial year) and expressed in pounds per
 £1,000,000.00 of the Tariff Base of such Lender.

 
	
  

 	
  

 	
  

 
	
 8.

 	
 Each Lender shall
 supply any information required by the Administrative Agent for the purpose
 of calculating its Additional Cost Rate. In particular, but without
 limitation, each Lender shall supply the following information in writing on
 or prior to the date on which it becomes a Lender:

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 the jurisdiction of the
 Lending Office out of which it is making available its participation in the
 relevant Loan; and

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 any other information
 that the Administrative Agent may reasonably require for such purpose.

 
	
  

 	
  

 	
  

 
	
 Each Lender shall
 promptly notify the Administrative Agent in writing of any change to the
 information provided by it pursuant to this paragraph.

 
	
  

 	
  

 	
  

 
	
 9.

 	
 The percentages of each
 Lender for the purpose of A and C above and the rates of charge of each
 Lender for the purpose of E above shall be determined by the Administrative
 Agent based upon the information supplied to it pursuant to paragraphs 7
 and 8 above and on the assumption that, unless a Lender notifies the
 Administrative Agent to the contrary, each Lender’s obligations in relation
 to cash ratio deposits and Special Deposits are the same as those of a
 typical bank from its jurisdiction of incorporation with a lending office in
 the same jurisdiction as its Lending Office.

 
	
  

 	
  

 	
  

 
	
 10.

 	
 The Administrative
 Agent shall have no liability to any Person if such determination results in
 an Additional Cost Rate which over- or under-compensates any Lender and shall
 be entitled to assume that the information provided by any Lender pursuant to
 paragraphs 3, 7 and 8 above is true and correct in all
 respects.

 
	
  

 	
  

 	
  

 
	
 11.

 	
 The Administrative
 Agent shall distribute the additional amounts received as a result of the
 Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for
 each Lender based on the information provided by each Lender pursuant to paragraphs
 3, 7 and 8 above.

 
	
  

 	
  

 	
  

 
	
 12.

 	
 Any determination by
 the Administrative Agent pursuant to this Schedule in relation to a formula,
 the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender
 shall, in the absence of manifest error, be conclusive and binding on all
 parties hereto.

 
	
  

 	
  

 	
  

 
	
 13.

 	
 The Administrative
 Agent may from time to time, after consultation with the Company and the
 Lenders, determine and notify to all parties any amendments which are
 required to be made to this Schedule in order to comply with any change in
 law, regulation or any requirements from time to time imposed by the Bank of
 England, the Financial Services Authority or the European Central Bank (or,
 in any case, any other authority which 

 


Schedule 1.01

Page 3









	
  

 	
  

 	
  

 
	
  

 	
 replaces all or any of
 its functions) and any such determination shall, in the absence of manifest
 error, be conclusive and binding on all parties hereto.

 


Schedule 1.01

Page 4






SCHEDULE 1.01(A) 


EXISTING LETTERS OF CREDIT


Schedule 2.01 

Page 1





SCHEDULE 2.01 


COMMITMENTS

AND APPLICABLE PERCENTAGES


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Lender

 	
  

 	
 Commitment

 	
  

 	
  

 	
 Applicable Percentage

 	
  

 
	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 	

 


 
	
 Bank of
 America, N.A.

 	
  

 	
 $

 	
 95,000,000

 	
  

 	
  

 	
 0.190000000

 	
 %

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 JPMorgan
 Chase Bank, N.A.

 	
  

 	
 $

 	
 95,000,000

 	
  

 	
  

 	
 0.190000000

 	
 %

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Wells Fargo
 Bank, National Association

 	
  

 	
 $

 	
 95,000,000

 	
  

 	
  

 	
 0.190000000

 	
 %

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 RBS
 Citizens, N.A.

 	
  

 	
 $

 	
 65,000,000

 	
  

 	
  

 	
 0.130000000

 	
 %

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 PNC Bank,
 National Association

 	
  

 	
 $

 	
 50,000,000

 	
  

 	
  

 	
 0.100000000

 	
 %

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 The Bank of
 New York Mellon

 	
  

 	
 $

 	
 50,000,000

 	
  

 	
  

 	
 0.100000000

 	
 %

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 HSBC Bank
 USA, N.A.

 	
  

 	
 $

 	
 50,000,000

 	
  

 	
  

 	
 0.100000000

 	
 %

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Total

 	
  

 	
 $

 	
 500,000,000

 	
  

 	
  

 	
 100.000000000

 	
 %

 


Schedule 2.01

Page 2









	
  

 	
  

 	
  

 	
  

 
	
 1

 	
  

 	
  

 	
 SCHEDULE 10.02

 
	
  

 	
  

 	
  

 	
  

 
	
 2

 	
  

 	
 ADMINISTRATIVE AGENT’S OFFICE;

 
	
 3

 	
  

 	
 CERTAIN ADDRESSES FOR NOTICES

 
	
 4

 	
  

 	
 COMPANY

 	
  

 
	
 5

 	
  

 	
 and DESIGNATED BORROWERS:

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
 6

 	
  

 	
 Curtiss-Wright
 Corporation

 	
  

 
	
 7

 	
  

 	
 10 Waterview
 Blvd 2nd floor

 	
  

 
	
 8

 	
  

 	
 Parsippany,
 NJ 07054

 	
  

 
	
 9

 	
  

 	
 Attention:
 Treasury Department

 	
  

 
	
 10

 	
  

 	
 Telephone:973-541-3717

 	
  

 
	
 11

 	
  

 	
 Telecopier:973-541-3693

 	
  

 
	
 12

 	
  

 	
 Electronic
 Mail: mocasal@curtisswright.com; kkollins@curtisswright.com

 
	
 13

 	
  

 	
 Website
 Address:     www.curtisswright.com

 	
  

 
	
 14

 	
  

 	
 U.S.
 Taxpayer Identification Number(s):

 	
  

 
	
 15

 	
  

 	
 Curtiss-Wright
 Corporation

 	
 13-0612970

 
	
 16

 	
  

 	
 Curtiss-Wright
 Controls, Inc.

 	
 22-2377871

 
	
 17

 	
  

 	
 Metal
 Improvement Company, LLC

 	
 22-1861245

 
	
 18

 	
  

 	
 Curtiss-Wright
 Flow Control Corporation

 	
 11-1640651

 
	
 19

 	
  

 	
 Curtiss-Wright
 Flow Control Service Corporation

 	
 11-3444203

 
	
 20

 	
  

 	
 Curtiss-Wright
 Electro-Mechanical Corporation

 	
 41-2060969

 
	
 21

 	
  

 	
  

 	
  

 
	
 22

 	
  

 	
 ADMINISTRATIVE AGENT:

 	
  

 
	
 23

 	
  

 	
  

 	
  

 
	
 24

 	
  

 	
 For operational notices
 (borrowings, payments, etc.)

 
	
 25

 	
  

 	
  

 	
  

 
	
 26

 	
  

 	
 BANK OF
 AMERICA, N.A.

 	
  

 
	
 27

 	
  

 	
 TX1-492-14-14

 	
  

 
	
 28

 	
  

 	
 901 MAIN ST

 	
  

 
	
 29

 	
  

 	
 Dallas TX
 75202-3714

 	
  

 
	
 30

 	
  

 	
 Attn: Eric
 Evans

 	
  

 
	
 31

 	
  

 	
 Telephone:
 214.209.1634

 	
  

 
	
 32

 	
  

 	
 Facsimile:
 214.290.8313

 	
  

 
	
 33

 	
  

 	
 Electronic
 Mail: eric.evans@baml.com

 	
  

 
	
 34

 	
  

 	
  

 	
  

 
	
 35

 	
  

 	
 Payments:

 	
  

 
	
 36

 	
  

 	
  

 	
  

 
	
 37

 	
  

 	
 Bank of
 America, N.A., New York NY

 	
  

 
	
 38

 	
  

 	
 ABA #
 026009593

 	
  

 
	
 39

 	
  

 	
 Account
 Name: Corporate FTA

 	
  

 
	
 40

 	
  

 	
 Account
 Number:        1292000883

 	
  

 
	
 41

 	
  

 	
 Attn:    Corporate
 Credit Services

 	
  

 
	
 42

 	
  

 	
 Ref:      Curtiss-Wright
 Corporation

 	
  

 
	
 43

 	
  

 	
  

 	
  

 
	
 44

 	
  

 	
 For other purposes:

 	
  

 


1









	
  

 	
  

 	
  

 
	
 1

 	
  

 	
  

 
	
 2

 	
  

 	
 BANK OF
 AMERICA, N.A.

 
	
 3

 	
  

 	
 800 Fifth
 Avenue, Floor 17

 
	
 4

 	
  

 	
 Seattle, WA
 98104

 
	
 5

 	
  

 	
 Mail Code:
 WA1-501-17-32

 
	
 6

 	
  

 	
           Attn:
 Brenda Little

 
	
 7

 	
  

 	
           Telephone:
 206-358-0048

 
	
 8

 	
  

 	
           Facsimile:
 415-343-0557

 
	
 9

 	
  

 	
           Electronic
 Mail: brenda.h.little@baml.com

 
	
 10

 	
  

 	
  

 
	
 11

 	
  

 	
 Bank of
 America, N.A., as L/C Issuer:

 
	
 12

 	
  

 	
  

 
	
 13

 	
  

 	
 BANK OF
 AMERICA, N.A.

 
	
 14

 	
  

 	
 Trade
 Operations – Los Angeles

 
	
 15

 	
  

 	
 1000 W
 Temple ST

 
	
 16

 	
  

 	
 Mail Code:
 CA9-705-07-05

 
	
 17

 	
  

 	
 Los Angeles,
 CA 90012-1514

 
	
 18

 	
  

 	
 Attn:   Stella
 Rosales

 
	
 19

 	
  

 	
            Telephone:
 213-417-9484

 
	
 20

 	
  

 	
            email:
 stella.rosales@baml.com

 
	
 21

 	
  

 	
  

 
	
 22

 	
  

 	
 Bank of America, N.A., as Swing Line Lender:

 
	
 23

 	
  

 	
  

 
	
 24

 	
  

 	
 BANK OF
 AMERICA, N.A.

 
	
 25

 	
  

 	
 TX1-492-14-14

 
	
 26

 	
  

 	
 901 MAIN ST

 
	
 27

 	
  

 	
 Dallas TX
 75202-3714

 
	
 28

 	
  

 	
 Attn: Eric
 Evans

 
	
 29

 	
  

 	
 Telephone:
 214.209.1634

 
	
 30

 	
  

 	
 Facsimile:
 214.290.8313

 
	
 31

 	
  

 	
 Electronic
 Mail: eric.evans@baml.com

 
	
 32

 	
  

 	
 Payments:

 
	
 33

 	
  

 	
 Bank of
 America, N.A., New York NY

 
	
 34

 	
  

 	
 ABA #
 026009593

 
	
 35

 	
  

 	
 Account
 Name: Corporate FTA

 
	
 36

 	
  

 	
 Account
 Number:        1292000883

 
	
 37

 	
  

 	
 Attn:    Corporate
 Credit Services

 
	
 38

 	
  

 	
 Ref:     Curtiss-Wright
 Corporation

 
	
 39

 	
  

 	
  

 
	
 40

 	
  

 	
  

 


2





EXHIBIT A 


FORM OF COMMITTED LOAN NOTICE


Date: ___________, _____ 


	
  

 	
  

 
	
 To:

 	
 Bank of
 America, N.A., as Administrative Agent 

 



Ladies and
Gentlemen:


          Reference
is made to that certain Third Amended and Restated Credit Agreement, dated as
of August 9, 2012 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among CURTISS-WRIGHT
CORPORATION, a Delaware corporation (the “Company”), the Designated
Borrowers from time to time party thereto, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender. 


          The Company
hereby requests, on behalf of itself or, if applicable, the Designated Borrower
referenced in item 6 below (the “Applicable Designated Borrower”) (select one):



	
  

 	
  

 	
  

 
	
  

 	
 o A Borrowing of Committed Loans

 	
 o A conversion or continuation of Committed Loans 

 






	
  

 	
  

 	
  

 
	
  

 	
 1.

 	
 On
 ____________________________________ (a Business Day). 

 
	
  

 	
  

 	
  

 
	
  

 	
 2.

 	
 In the
 amount of ________________________. 

 
	
  

 	
  

 	
  

 
	
  

 	
 3.

 	
 In the
 following currency: ________________________ 

 
	
  

 	
  

 	
  

 
	
  

 	
 4.

 	
 o A Borrowing
 or continuation of a Eurocurrency Rate Loan 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 with an
 Interest Period of: ______ months; OR 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 o A continuation of a Base Rate Loan 

 
	
  

 	
  

 	
  

 
	
  

 	
 5.

 	
 On behalf of
 ____________________________ [insert name
 of applicable Designated Borrower].

 


A - 1
Form of Committed
Loan Notice





          The
Committed Borrowing, if any, requested herein complies with the provisos to the
first sentence of Section 2.01 of the Agreement.  


	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 CURTISS-WRIGHT CORPORATION 

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title: 

 	
  

 
	
  

 	
  

 	

 


 


A - 1 

Form of Committed Loan Notice





EXHIBIT B 


FORM OF SWING LINE LOAN NOTICE 


Date: ___________, _____ 


	
  

 	
  

 
	
 To:

 	
 Bank of
 America, N.A., as Swing Line Lender

 Bank of America, N.A., as Administrative Agent 

 



Ladies and
Gentlemen: 


          Reference
is made to that certain Third Amended and Restated Credit Agreement, dated as
of August 9, 2012 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among CURTISS-WRIGHT
CORPORATION, a Delaware corporation (the “Company”), the Designated
Borrowers from time to time party thereto, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender. 


          The
undersigned hereby requests a Swing Line Loan: 


	
  

 	
  

 	
  

 
	
  

 	
 1.

 	
 On
 ___________________________________ (a Business Day). 

 
	
  

 	
  

 	
  

 
	
  

 	
 2.

 	
 In the
 amount of $______________________. 

 


          The Swing
Line Borrowing requested herein complies with the requirements of the provisos
to the first sentence of Section 2.04(a) of the Agreement. 


	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 CURTISS-WRIGHT CORPORATION

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title: 

 	
  

 
	
  

 	
  

 	

 


 


B - 1 

Form of Swing Line Loan Notice








	
  

 
	
 EXHIBIT C

 
	
  

 
	
 FORM OF NOTE

 
	
  

 
	
 


 


          FOR VALUE
RECEIVED, the undersigned (the “Borrowers”) hereby promises to pay to
_____________________ or registered assigns (the “Lender”), in
accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of each Loan from time to time made by the Lender to the
Borrowers under that certain Third Amended and Restated Credit Agreement, dated
as of August 9, 2012 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among CURTISS-WRIGHT
CORPORATION, the Designated Borrowers from time to time party thereto, the
Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.


          Each
Borrower promises to pay interest on the unpaid principal amount of each Loan
to such Borrower from the date of such Loan until such principal amount is paid
in full, at such interest rates and at such times as provided in the Agreement.
Except as otherwise provided in Section 2.04(f) of the Agreement with
respect to Swing Line Loans, all payments of principal and interest shall be
made to the Administrative Agent for the account of the Lender in the currency
in which such Committed Loan was denominated and in Same Day Funds at the
Administrative Agent’s Office for such currency. If any amount is not paid in
full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.


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


          Each
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Note.


C - 1

Form of Note





          THIS NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AND SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.


	
  

 	
  

 
	
  

 	
 CURTISS-WRIGHT
 CORPORATION

 
	
  

 	
 CURTISS-WRIGHT
 CONTROLS, INC.

 
	
  

 	
 METAL
 IMPROVEMENT COMPANY, LLC

 
	
  

 	
 CURTISS-WRIGHT
 FLOW CONTROL CORPORATION

 
	
  

 	
 CURTISS-WRIGHT
 FLOW CONTROL SERVICE CORPORATION

 
	
  

 	
 CURTISS-WRIGHT
 ELECTRO-MECHANICAL CORPORATION

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 	
  

 
	
  

 	
  

 	
 

 
	
  

 	
 Name:

 	
 Harry Jakubowitz

 
	
  

 
	
  

 	
 Title: Treasurer of each of the
 entities listed above

 


C - 2

Form of Note





LOANS AND PAYMENTS WITH RESPECT THERETO


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Date

 	
  

 	
 Type of
Loan Made

 	
  

 	
 Currency
and
Amount of
Loan Made

 	
  

 	
 End of
Interest
Period

 	
  

 	
 Amount of
Principal or
Interest
Paid This
Date

 	
  

 	
 Outstanding
Principal
Balance
This Date

 	
  

 	
 Notation
Made By

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 



 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 


 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 
	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 


C - 3

Form of Note





EXHIBIT D 


FORM OF COMPLIANCE CERTIFICATE


Financial Statement Date: _________, 


	
  

 	
  

 
	
 To:

 	
 Bank of
 America, N.A., as Administrative Agent

 



Ladies and
Gentlemen:


          Reference is made to that certain Third Amended and Restated Credit
Agreement, dated as of August 9, 2012 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among
CURTISS-WRIGHT CORPORATION, a Delaware corporation (the “Company”), the
Designated Borrowers from time to time party thereto, the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender.


          The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the ___________________________________ of the Company,
and that, as such, he/she is authorized to execute and deliver this Certificate
to the Administrative Agent on the behalf of the Company, and that:


[Use following paragraph 1 for fiscal year-end financial statements]


          1. The
Company has delivered the year-end audited financial statements required by Section
6.01(a) of the Agreement for the fiscal year of the Company ended as of the
above date, together with the report and opinion of an independent certified
public accountant required by such section.


 [Use following paragraph 1 for fiscal quarter-end financial statements]


          1. The
Company has delivered the unaudited financial statements required by Section
6.01(b) of the Agreement for the fiscal quarter of the Company ended as of
the above date. Such financial statements fairly present the financial
condition, results of operations and cash flows of the Company and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.


          2. The
undersigned has reviewed and is familiar with the terms of the Agreement and
has made, or has caused to be made under his/her supervision, a detailed review
of the transactions and condition (financial or otherwise) of the Company
during the accounting period covered by such financial statements.


          3. A review
of the activities of the Company during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during
such fiscal period the Company performed and observed all its Obligations under
the Loan Documents, and 


 [select one:]


D - 1

Form of Compliance Certificate





          [to the
best knowledge of the undersigned, during such fiscal period the Company
performed and observed each covenant and condition of the Loan Documents
applicable to it, and no Default has occurred and is continuing.] 


--or--


          [to the
best knowledge of the undersigned, during such fiscal period the following
covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]


          4. The
representations and warranties of (i) the Borrowers contained in Article V
of the Agreement and (ii) each Loan Party contained in each other Loan Document
or in any document furnished at any time under or in connection with the Loan
Documents, are true and correct in all material respects on and as of the date
hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Compliance
Certificate, the representations and warranties contained in subsections (a)
and (b) of Section 5.05 of the Agreement shall be deemed to refer to the
most recent statements furnished pursuant to clauses (a) and (b), respectively,
of Section 6.01 of the Agreement, including the statements in connection
with which this Compliance Certificate is delivered.


          5. The
financial covenant analyses and information set forth on Schedule 1
attached hereto are true and accurate on and as of the date of this
Certificate.


          IN WITNESS
WHEREOF, the undersigned has executed this Certificate as of _________________,
_____________. 


	
  

 	
  

 
	
  

 	
 CURTISS-WRIGHT CORPORATION 

 
	
  

 	
  

 
	
  

 	
 By:

 
	
  

 	
 

 
	
  

 	
 Name:

 
	
  

 	
 

 
	
  

 	
 Title:

 
	
  

 	
 

 


D - 2

Form of Compliance Certificate





For the Quarter/Year ended
___________________(“Statement Date”)


SCHEDULE 1
to the Compliance Certificate

($ in 000’s)


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 I. 

 	
 Section 7.11
(a) – Consolidated Interest Coverage Ratio. 

 	
  

 	
  

 	
  

 
	
  

 
	
  

 	
 A.

 	
 Consolidated
 EBITDA for four consecutive fiscal quarters ending on above date (“Subject
 Period”):

 	
  

 	
  

 	
  

 
	
  

 
	
  

 	
  

 	
 1.

 	
 Consolidated
 Net Income for Subject Period:

 	
 $

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	 

 	 

 	 

 
	
  

 
	
  

 	
  

 	
 2.

 	
 Consolidated
 Interest Charges for Subject Period:

 	
 $

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	 

 	 

 	 

 
	
  

 
	
  

 	
  

 	
 3.

 	
 Consolidated
 foreign, federal and state income tax expenses for Subject Period:

 	
 $

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	 

 	 

 	 

 
	
  

 
	
  

 	
  

 	
 4.

 	
 Consolidated
 depreciation expenses for Subject Period:

 	
 $

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	 

 	 

 	 

 
	
  

 
	
  

 	
  

 	
 5.

 	
 Consolidated
 amortization expenses for Subject Period:

 	
 $

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	 

 	 

 	 

 
	
  

 
	
  

 	
  

 	
 6.

 	
 Extraordinary
 losses for Subject Period:

 	
 $

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	 

 	 

 	 

 
	
  

 
	
  

 	
  

 	
 7.

 	
 Extraordinary
 gains for Subject Period:

 	
 $

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	 

 	 

 	 

 
	
  

 
	
  

 	
  

 	
 8.

 	
 Consolidated
 EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 6 – 7):

 	
 $

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	 

 	 

 	 

 
	
  

 
	
  

 	
 B.

 	
 Consolidated
 Interest Charges for Subject Period:

 	
 $

 	
  

 	
  

 
	
  

 	
  

 	
  

 	 

 	 

 	 

 
	
  

 
	
  

 	
 C.

 	
 Consolidated
 Interest Coverage Ratio (Line I.A.8 ÷ Line I.B):

 	
 _____ to
 1.00

 
	
  

 
	
 Minimum required as of the end of any fiscal quarter: 3.0:1

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
 II.

 	
 Section 7.11 (b) – Consolidated Leverage Ratio.

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 A.

 	
 Consolidated
 Funded Indebtedness at Statement Date:

 	
 $

 	
  

 	
  

 
	
  

 	
  

 	
  

 	 

 	 

 	 

 
	
  

 
	
  

 	
 B.

 	
 Consolidated
 Capitalization of the Company and its Subsidiaries for Subject Period:

 	
 $

 	
  

 	
  

 
	
  

 	
  

 	
  

 	 

 	 

 	 

 
	
  

 
	
  

 	
 C.

 	
 Consolidated
 Leverage Ratio (Line II.A ÷ Line II.B):

 	
 ________%

 



Maximum permitted at any time: 60% 


D - 3

Form of Compliance Certificate









	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 III.

 	
 Section 7.11(c) – Consolidated Net Worth.

 	
  

 	
  

 
	
  

 
	
  

 	
 A.

 	
 Actual
 Consolidated Net Worth at Statement Date:

 	
  

 	
  

 
	
  

 
	
  

 	
  

 	
 1.

 	
 Stockholders’
 equity of Company and its Subsidiaries, determined on a consolidated basis in
 accordance with GAAP:

 	
  

 	
 $

 
	
  

 	
  

 	
  

 	
  

 	
  

 	 

 
	
  

 
	
  

 	
  

 	
 2.

 	
 all amounts
 properly attributable to minority interests in the stock and surplus of
 Subsidiaries (to the extent included in Line III.A.1., above)

 	
  

 	
 $

 
	
  

 	
  

 	
  

 	
  

 	
  

 	 

 
	
  

 
	
  

 	
  

 	
 3.

 	
 any increase
 in the amount of Consolidated Net Worth attributable to a write-up in the
 book value of any asset on the books of the Company and its Subsidiaries
 resulting from a revaluation thereof subsequent to September 30, 2011

 	
  

 	
 $

 
	
  

 	
  

 	
  

 	
  

 	
  

 	 

 
	
  

 
	
  

 	
  

 	
 4.

 	
 amounts at
 which any shares of capital stock of the Company or any Subsidiary appear as
 an asset on the balance sheet from which Consolidated Net Worth is determined

 	
  

 	
 $

 
	
  

 	
  

 	
  

 	
  

 	
  

 	 

 
	
  

 
	
  

 	
  

 	
 5.

 	
 Line III.A.1
 minus the sum of Lines III.A.2 through I.A.4):

 	
  

 	
 $

 
	
  

 	
  

 	
  

 	
  

 	
  

 	 

 
	
  

 
	
  

 	
 B.

 	
 50% of the
 Borrower’s aggregate Consolidated Net Income (but only if a positive number)
 for each completed fiscal quarter of the Borrower at such time ending on or
 after September 30, 2011

 	
  

 	
 $

 
	
  

 	
  

 	
  

 	
  

 	
  

 	 

 
	
  

 
	
  

 	
 C.

 	
 Minimum
 required Consolidated Net Worth (Lines III.B plus $692,084,000.00):

 	
  

 	
 $

 
	
  

 	
  

 	
  

 	
  

 	
  

 	 

 
	
  

 
	
  

 	
 D.

 	
 Excess (deficient)
 for covenant compliance (Line III.A.5 minus III.C):

 	
  

 	
 $

 
	
  

 	
  

 	
  

 	
  

 	
  

 	 

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 


D - 4

Form of Compliance Certificate







EXHIBIT E-1


ASSIGNMENT
AND ASSUMPTION


          This
Assignment and Assumption (this “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between
[the][each] Assignor identified in item 1 below ([the][each, an] “Assignor”)
and [the][each] Assignee identified in item 2 below ([the][each, an] “Assignee”).
[It is understood and agreed that the rights and obligations of [the
Assignors][the Assignees] hereunder are several and not joint.] Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.


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


	
  

 	
  

 	
  

 
	
 1.

 	
 Assignor[s]:   

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 
	
 2.

 	
 Assignee[s]:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 [for each Assignee, indicate [Affiliate][Approved
 Fund] of [identify Lender]]

 
	
  

 	
  

 
	
 3.

 	
 Borrower(s): CURTISS-WRIGHT
 CORPORATION and certain Subsidiaries

 
	
  

 	
  

 
	
 4.

 	
 Administrative Agent:
 Bank of America, N.A., as the administrative agent under the Credit Agreement

 



E-1 - 1

Form of Assignment and Assumption









	
  

 	
  

 
	
 5.

 	
 Credit Agreement:
 Third Amended and Restated Credit Agreement, dated as of August 9, 2012 among
 Curtiss-Wright Corporation, the Designated Borrowers from time to time party
 thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer,
 and Swing Line Lender

 
	
  

 	
  

 
	
 6.

 	
 Assigned Interest[s]:

 






	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Assignor[s]

 	
  

 	
 Assignee[s]

 	
  

 	
 Facility

 Assigned

 	
  

 	
 Aggregate

 Amount of

 Commitment/Loans

 for all Lenders

 	
  

 	
 Amount of

 Commitment
/Loans

 Assigned

 	
  

 	
 Percentage

 Assigned of

 Commitment/

 Loans

 	
  

 	
 CUSIP
 Number

 	
  

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 $

 	
  

 	
  

 	
 $

 	
  

 	
  

 	
  

 	
  

 	
 %

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 $

 	
  

 	
  

 	
 $

 	
  

 	
  

 	
  

 	
  

 	
 %

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 $

 	
  

 	
  

 	
 $

 	
  

 	
  

 	
  

 	
  

 	
 %

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	
  

 	
  

 






	
  

 	
  

 	
  

 
	
 [7.

 	
 Trade Date:

 	
 _______________________]

 



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


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


	
  

 	
  

 	
  

 
	
  

 	
 ASSIGNOR

 
	
  

 	
 [NAME OF ASSIGNOR]

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 ASSIGNEE

 
	
  

 	
 [NAME OF ASSIGNEE]

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Title:

 






	
  

 	
  

 
	
 [Consented to and] Accepted:

 
	
  

 	
  

 
	
 BANK OF AMERICA,
 N.A., as

 Administrative Agent

 
	
  

 
	
 By: 

 	
  

 
	
  

 	

 


 
	
  

 	
 Title:

 
	
  

 	
  

 
	
 [Consented to:]

 
	
  

 
	
 CURTISS-WRIGHT CORPORATION

 
	
  

 	
  

 
	
 By:

 	
  

 
	
  

 	

 


 
	
  

 	
 Title:

 



E-1 - 2

Form of Assignment and Assumption






ANNEX 1 TO ASSIGNMENT AND ASSUMPTION


THIRD AMENDED AND
RESTATED CREDIT AGREEMENT


STANDARD TERMS AND
CONDITIONS FOR


ASSIGNMENT AND
ASSUMPTION


                    1.
Representations and Warranties.


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


                    1.2.
Assignee. [The][Each] Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all the requirements to be an assignee under Section 10.06(b)(iii),
(v)and (vi) of
the Credit Agreement (subject to such consents, if any, as may be required
under Section 10.06(b)(iii) of the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of [the][the relevant]
Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it
is sophisticated with respect to decisions to acquire assets of the type
represented by [the][such] Assigned Interest and either it, or the Person
exercising discretion in making its decision to acquire [the][such] Assigned Interest,
is experienced in acquiring assets of such type, (v) it has received a copy of
the Credit Agreement, and has received or has been accorded the opportunity to
receive copies of the most recent financial statements delivered pursuant to
Section __ thereof, as applicable, and such other documents and information as
it deems appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest,
(vi) it has, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest,
and (vii) if it is a Foreign Lender, attached hereto is any documentation
required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it
will, independently and without reliance upon the Administrative Agent,
[the][any] 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 Loan Documents, and
(ii) it will perform in accordance with their terms 


E-1 - 3

Form of Assignment and Assumption






all of the obligations
which by the terms of the Loan Documents are required to be performed by it as
a Lender.


                    2.
Payments. From and after the Effective Date, the Administrative Agent
shall make all payments
in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts
which have accrued to but excluding the Effective Date and to [the][the
relevant] Assignee for amounts which have accrued from and after the Effective
Date.


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


E-1 - 4

Form of Assignment and Assumption






EXHIBIT E-2


FORM
OF ADMINISTRATIVE QUESTIONNAIRE


 [SEE ATTACHED]


E-2 - 1

Form of Administrative Questionnaire






EXHIBIT F


 [Reserved]


F - 1






EXHIBIT G


FORM
OF SUBSIDIARY GUARANTY


 [SEE
ATTACHED]


G - 1

Form of Subsidiary Guaranty






EXHIBIT H


FORM
OF DESIGNATED BORROWER

REQUEST AND ASSUMPTION AGREEMENT


Date: ___________,
_____


	
  

 	
  

 
	
 To:

 	
 Bank of America, N.A.,
 as Administrative Agent

 
	
  

 	
  

 
	
  

 	
           Ladies
 and Gentlemen:

 
	
  

 	
  

 
	
  

 	
           This
 Designated Borrower Request and Assumption Agreement is made and delivered
 pursuant to Section 2.14 of that certain Third Amended and
 Restated Credit Agreement, dated as of August 9, 2012 (as amended, restated,
 extended, supplemented or otherwise modified in writing from time to time,
 the “Credit Agreement”), among Curtiss-Wright Corporation, Delaware
 corporation (the “Company”), the Designated Borrowers from time to
 time party thereto, the Lenders from time to time party thereto, and Bank of
 America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender, et
 al, and reference is made thereto for full particulars of the matters
 described therein. All capitalized terms used in this Designated Borrower
 Request and Assumption Agreement and not otherwise defined herein shall have
 the meanings assigned to them in the Credit Agreement.

 
	
  

 	
  

 
	
  

 	
           Each
 of ______________________ (the “Designated Borrower”) and the Company
 hereby confirms, represents and warrants to the Administrative Agent and the Lenders
 that the Designated Borrower is a Subsidiary of the Company.

 
	
  

 	
  

 
	
  

 	
           The
 documents required to be delivered to the Administrative Agent under Section 2.14
 of the Credit Agreement will be furnished to the Administrative Agent in
 accordance with the requirements of the Credit Agreement.

 
	
  

 	
  

 
	
  

 	
           The
 parties hereto hereby confirm that with effect from the date hereof, the
 Designated Borrower shall have obligations, duties and liabilities toward
 each of the other parties to the Credit Agreement identical to those which
 the Designated Borrower would have had if the Designated Borrower had been an
 original party to the Credit Agreement as a Borrower. The Designated Borrower
 confirms its acceptance of, and consents to, all representations and warranties,
 covenants, and other terms and provisions of the Credit Agreement.

 
	
  

 	
  

 
	
  

 	
           The
 parties hereto hereby request that the Designated Borrower be entitled to
 receive Loans under the Credit Agreement, and understand, acknowledge and
 agree that neither the Designated Borrower nor the Company on its behalf
 shall have any right to request any Loans for its account unless and until
 the effective date designated by the Administrative Agent in a Designated
 Borrower Notice delivered to the Company and the Lenders pursuant to Section 2.14
 of the Credit Agreement.

 
	
  

 	
  

 
	
  

 	
           Complete
 if the Designated Borrower is a Domestic Subsidiary:
 The true and correct U.S. taxpayer identification number of the Designated
 Borrower is _____________.

 



H - 1

Form of Designated Borrower Request and Assumption Agreement









	
  

 	
  

 
	
  

 	
           Complete if the Designated Borrower is a Foreign
 Subsidiary: The true and correct unique identification
 number that has been issued to the Designated Borrower by its jurisdiction of
 organization and the name of such jurisdiction are set forth below:

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Identification Number

 	
  

 	
 Jurisdiction of Organization

 
	
  

 	

 


 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 






	
  

 	
  

 
	
  

 	
           This
 Designated Borrower Request and Assumption Agreement shall constitute a Loan
 Document under the Credit Agreement.

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           IN WITNESS WHEREOF, the parties hereto
 have caused this Designated Borrower Request and Assumption Agreement to be
 duly executed and delivered by their proper and duly authorized officers as
 of the day and year first above written.

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
  [DESIGNATED
 BORROWER]

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 CURTISS-WRIGHT CORPORATION

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 



H - 2

Form of Designated Borrower Request and Assumption Agreement






EXHIBIT I


FORM
OF DESIGNATED BORROWER NOTICE


Date: ___________,
_____


	
  

 	
  

 
	
 To:

 	
 CURTISS-WRIGHT
 CORPORATION

 
	
  

 	
  

 
	
           The
 Lenders party to the Credit Agreement referred to below

 
	
  

 	
  

 
	
           Ladies
 and Gentlemen:

 
	
  

 	
  

 
	
           This
 Designated Borrower Notice is made and delivered pursuant to Section 2.14
 of that certain Third Amended and Restated Credit Agreement, dated as of
 August 9, 2012 (as amended, restated, extended, supplemented or otherwise
 modified in writing from time to time, the “Credit Agreement”), among
 Curtiss-Wright Corporation, a Delaware corporation (the “Company”),
 the Designated Borrowers from time to time party thereto, the Lenders from
 time to time party thereto, and Bank of America, N.A., as Administrative
 Agent, L/C Issuer and Swing Line Lender, et al. and reference is made thereto
 for full particulars of the matters described therein. All capitalized terms
 used in this Designated Borrower Notice and not otherwise defined herein
 shall have the meanings assigned to them in the Credit Agreement.

 
	
  

 	
  

 
	
           The
 Administrative Agent hereby notifies Company and the Lenders that effective
 as of the date hereof [_________________________] shall be a Designated
 Borrower and may receive Loans for its account on the terms and conditions
 set forth in the Credit Agreement.

 
	
  

 	
  

 
	
           This
 Designated Borrower Notice shall constitute a Loan Document under the Credit
 Agreement.

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 BANK OF AMERICA, N.A.,

 as Administrative Agent

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	

 


 



1

Exhibit I