Exhibit
10.1


 


EXECUTION
COPY




 





 


CREDIT AGREEMENT


 


Dated as of January 28,
2005


 


among


 


HNI CORPORATION,


as Borrower,


 


CERTAIN DOMESTIC SUBSIDIARIES
OF THE BORROWER FROM TIME TO TIME

PARTY HERETO,


as Guarantors


 


THE LENDERS PARTIES HERETO


 


and


 


WACHOVIA BANK, NATIONAL
ASSOCIATION,


as Administrative Agent


 


 


BANK OF AMERICA, N.A., as
Syndication Agent


WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Documentation Agent


BNP PARIBAS, as Documentation
Agent




 





 


WACHOVIA
CAPITAL MARKETS, LLC,


As Sole Lead Arranger, Manager
and Book Runner


 





















 


TABLE OF CONTENTS


 


	
  SECTION 1 DEFINITIONS

  	
  1

  
	
   

  	
  1.1

  	
  Definitions.

  	
  1

  
	
   

  	
  1.2

  	
  Computation of Time Periods, Etc.

  	
  22

  
	
   

  	
  1.3

  	
  Accounting Terms.

  	
  22

  
	
   

  	
  1.4

  	
  Exchange Rates;
  Currency Equivalents.

  	
  23

  
	
   

  	
  1.5

  	
  Redenomination
  of Certain Foreign Currencies and Computation of Dollar Amounts.

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2 CREDIT FACILITY

  	
  24

  
	
   

  	
  2.1

  	
  Revolving
  Loans.

  	
  24

  
	
   

  	
  2.2

  	
  Competitive
  Loan Subfacility.

  	
  25

  
	
   

  	
  2.3

  	
  Swingline Loan
  Subfacility.

  	
  28

  
	
   

  	
  2.4

  	
  Letter of
  Credit Subfacility.

  	
  30

  
	
   

  	
  2.5

  	
  Additional Loans.

  	
  33

  
	
   

  	
  2.6

  	
  Default Rate.

  	
  35

  
	
   

  	
  2.7

  	
  Extension and
  Conversion.

  	
  35

  
	
   

  	
  2.8

  	
  Prepayments.

  	
  35

  
	
   

  	
  2.9

  	
  Termination and
  Reduction of Commitments

  	
  36

  
	
   

  	
  2.10

  	
  Fees.

  	
  37

  
	
   

  	
  2.11

  	
  Computation
  of Interest and Fees.

  	
  38

  
	
   

  	
  2.12

  	
  Pro Rata
  Treatment and Payments.

  	
  38

  
	
   

  	
  2.13

  	
  Non-Receipt
  of Funds by the Administrative Agent.

  	
  40

  
	
   

  	
  2.14

  	
  Inability to
  Determine Interest Rate.

  	
  41

  
	
   

  	
  2.15

  	
  Illegality.

  	
  41

  
	
   

  	
  2.16

  	
  Requirements
  of Law.

  	
  43

  
	
   

  	
  2.17

  	
  Indemnity.

  	
  44

  
	
   

  	
  2.18

  	
  Taxes.

  	
  45

  
	
   

  	
  2.19

  	
  Indemnification;
  Nature of Issuing Lender’s Duties.

  	
  47

  
	
   

  	
  2.20

  	
  Replacement
  of Lenders.

  	
  48

  
	
   

  	
  2.21

  	
  Extension of
  Maturity Date.

  	
  48

  
	
   

  	
  2.22

  	
  Lender
  Representation and Warranty.

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3 REPRESENTATIONS AND WARRANTIES

  	
  50

  
	
   

  	
  3.1

  	
  Financial
  Statements.

  	
  50

  
	
   

  	
  3.2

  	
  Organization;
  Existence.

  	
  50

  
	
   

  	
  3.3

  	
  Authorization;
  Power; Enforceable Obligations.

  	
  51

  
	
   

  	
  3.4

  	
  Consent;
  Government Authorizations.

  	
  51

  
	
   

  	
  3.5

  	
  No Material
  Litigation.

  	
  51

  
	
   

  	
  3.6

  	
  Taxes.

  	
  51

  
	
   

  	
  3.7

  	
  ERISA.

  	
  52

  
	
   

  	
  3.8

  	
  Governmental
  Regulations, Etc.

  	
  53

  
	
   

  	
  3.9

  	
  Subsidiaries.

  	
  53

  
	
   

  	
  3.10

  	
  Use of
  Proceeds.

  	
  54

  
	
   

  	
  3.11

  	
  Contractual
  Obligations; Compliance with Laws; No Conflicts.

  	
  54

  



 


i





















 


	
   

  	
  3.12

  	
  Accuracy and
  Completeness of Information.

  	
  55

  
	
   

  	
  3.13

  	
  Environmental
  Matters.

  	
  55

  
	
   

  	
  3.14

  	
  No Burdensome
  Restrictions.

  	
  56

  
	
   

  	
  3.15

  	
  Title to
  Property.

  	
  56

  
	
   

  	
  3.16

  	
  Insurance.

  	
  56

  
	
   

  	
  3.17

  	
  Licenses and
  Permits.

  	
  56

  
	
   

  	
  3.18

  	
  Anti-Terrorism
  Laws.

  	
  57

  
	
   

  	
  3.19

  	
  Labor
  Matters.

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4 CONDITIONS

  	
  57

  
	
   

  	
  4.1

  	
  Conditions to
  Closing.

  	
  57

  
	
   

  	
  4.2

  	
  Conditions to
  All Extensions of Credit.

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5 AFFIRMATIVE COVENANTS

  	
  60

  
	
   

  	
  5.1

  	
  Financial
  Statements.

  	
  60

  
	
   

  	
  5.2

  	
  Certificates;
  Other Information.

  	
  61

  
	
   

  	
  5.3

  	
  Notices.

  	
  63

  
	
   

  	
  5.4

  	
  Maintenance of
  Existence; Compliance with Laws; Contractual Obligations.

  	
  63

  
	
   

  	
  5.5

  	
  Maintenance of
  Property; Insurance.

  	
  64

  
	
   

  	
  5.6

  	
  Inspection of
  Property; Books and Records; Discussions.

  	
  64

  
	
   

  	
  5.7

  	
  Use of
  Proceeds.

  	
  65

  
	
   

  	
  5.8

  	
  Additional
  Guarantors.

  	
  65

  
	
   

  	
  5.9

  	
  Financial
  Covenants.

  	
  65

  
	
   

  	
  5.10

  	
  Payment of
  Obligations.

  	
  65

  
	
   

  	
  5.11

  	
  Environmental
  Laws.

  	
  66  

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6 NEGATIVE COVENANTS

  	
  66

  
	
   

  	
  6.1

  	
  Indebtedness.

  	
  67

  
	
   

  	
  6.2

  	
  Liens.

  	
  67

  
	
   

  	
  6.3

  	
  Nature of
  Business.

  	
  68

  
	
   

  	
  6.4

  	
  Mergers, Sale
  of Assets and Indebtedness of Subsidiaries

  	
  68

  
	
   

  	
  6.5

  	
  Advances,
  Investments and Loans.

  	
  68

  
	
   

  	
  6.6

  	
  Transactions
  with Affiliates.

  	
  70

  
	
   

  	
  6.7

  	
  Fiscal Year;
  Organizational Documents.

  	
  70

  
	
   

  	
  6.8

  	
  Limitation on
  Restricted Actions.

  	
  70

  
	
   

  	
  6.9

  	
  Restricted
  Payments.

  	
  71

  
	
   

  	
  6.10

  	
  Sale
  Leasebacks.

  	
  71

  
	
   

  	
  6.11

  	
  No Further
  Negative Pledges.

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7 EVENTS OF DEFAULT

  	
  71

  
	
   

  	
  7.1

  	
  Events of
  Default.

  	
  71

  
	
   

  	
  7.2

  	
  Acceleration;
  Remedies.

  	
  74

  
	
   

  	
  7.3

  	
  Rescission of
  Acceleration.

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8 AGENCY PROVISIONS

  	
  75

  
	
   

  	
  8.1

  	
  Appointment.

  	
  75

  
	
   

  	
  8.2

  	
  Delegation of
  Duties.

  	
  75

  



 


ii





















 


	
   

  	
  8.3

  	
  Exculpatory
  Provisions.

  	
  75

  
	
   

  	
  8.4

  	
  Reliance by
  Administrative Agent.

  	
  76

  
	
   

  	
  8.5

  	
  Notice of
  Default.

  	
  76

  
	
   

  	
  8.6

  	
  Non-Reliance on
  Administrative Agent and Other Lenders.

  	
  76

  
	
   

  	
  8.7

  	
  Indemnification.

  	
  77

  
	
   

  	
  8.8

  	
  Administrative
  Agent in Its Individual Capacity.

  	
  77

  
	
   

  	
  8.9

  	
  Successor
  Administrative Agent.

  	
  78

  
	
   

  	
  8.10

  	
  Patriot Act
  Notice.

  	
  78

  
	
   

  	
  8.11

  	
  Other Agents,
  Arrangers and Managers.

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9 GUARANTY

  	
  79

  
	
   

  	
  9.1

  	
  The Guaranty.

  	
  79

  
	
   

  	
  9.2

  	
  Bankruptcy.

  	
  79

  
	
   

  	
  9.3

  	
  Nature of
  Liability.

  	
  80

  
	
   

  	
  9.4

  	
  Independent
  Obligation.

  	
  80

  
	
   

  	
  9.5

  	
  Authorization.

  	
  80

  
	
   

  	
  9.6

  	
  Reliance.

  	
  81

  
	
   

  	
  9.7

  	
  Waiver.

  	
  81

  
	
   

  	
  9.8

  	
  Limitation on
  Enforcement.

  	
  82

  
	
   

  	
  9.9

  	
  Confirmation of
  Payment.

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10 MISCELLANEOUS

  	
  83

  
	
   

  	
  10.1

  	
  Amendments
  and Waivers.

  	
  83

  
	
   

  	
  10.2

  	
  Notices.

  	
  85

  
	
   

  	
  10.3

  	
  No Waiver;
  Cumulative Remedies.

  	
  87

  
	
   

  	
  10.4

  	
  Survival of
  Representations and Warranties.

  	
  87

  
	
   

  	
  10.5

  	
  Payment of
  Expenses and Taxes.

  	
  87

  
	
   

  	
  10.6

  	
  Successors
  and Assigns; Participations; Purchasing Lenders.

  	
  88

  
	
   

  	
  10.7

  	
  Adjustments;
  Set-off.

  	
  91

  
	
   

  	
  10.8

  	
  Table of
  Contents and Section Headings.

  	
  92

  
	
   

  	
  10.9

  	
  Counterparts.

  	
  92

  
	
   

  	
  10.10

  	
  Effectiveness.

  	
  92

  
	
   

  	
  10.11

  	
  Severability.

  	
  92

  
	
   

  	
  10.12

  	
  Integration.

  	
  92

  
	
   

  	
  10.13

  	
  GOVERNING
  LAW.

  	
  92

  
	
   

  	
  10.14

  	
  Consent to
  Jurisdiction and Service of Process.

  	
  93

  
	
   

  	
  10.15

  	
  Confidentiality.

  	
  93

  
	
   

  	
  10.16

  	
  Acknowledgments.

  	
  94

  
	
   

  	
  10.17

  	
  Waivers of
  Jury Trial.

  	
  94

  



 


iii





















 


SCHEDULES


 


	
  Schedule 1.1A

  	
   

  	
  Form of Account Designation Letter

  
	
  Schedule 1.1B

  	
   

  	
  Existing Letters of Credit

  
	
  Schedule 1.1C

  	
   

  	
  Mandatory Cost Rate

  
	
  Schedule 2.1(a)

  	
   

  	
  Lenders and Commitments

  
	
  Schedule 2.1(b)(i)

  	
   

  	
  Form of Notice of Borrowing

  
	
  Schedule 2.1(e)

  	
   

  	
  Form of Revolving Note

  
	
  Schedule 2.2(b)-1

  	
   

  	
  Form of Competitive Bid Request

  
	
  Schedule 2.2(b)-2

  	
   

  	
  Form of Notice of Receipt of Competitive
  Bid Request

  
	
  Schedule 2.2(c)

  	
   

  	
  Form of Competitive Bid

  
	
  Schedule 2.2(e)

  	
   

  	
  Form of Competitive Bid Accept/Reject
  Letter

  
	
  Schedule 2.3(e)

  	
   

  	
  Form of Swingline Note

  
	
  Schedule 2.7

  	
   

  	
  Form of Notice of Extension/Conversion

  
	
  Schedule 2.18

  	
   

  	
  2.18 Certificate

  
	
  Schedule 3.9

  	
   

  	
  Subsidiaries

  
	
  Schedule 3.16

  	
   

  	
  Insurance

  
	
  Schedule 3.19

  	
   

  	
  Labor Matters

  
	
  Schedule 4.1(d)

  	
   

  	
  Form of Secretary’s Certificate

  
	
  Schedule 5.2(b)

  	
   

  	
  Form of Officer’s Compliance Certificate

  
	
  Schedule 5.8

  	
   

  	
  Form of Joinder Agreement

  
	
  Schedule 6.1

  	
   

  	
  Indebtedness

  
	
  Schedule 6.2

  	
   

  	
  Liens

  
	
  Schedule 10.2

  	
   

  	
  Lenders’ Lending Offices

  
	
  Schedule 10.6(c)

  	
   

  	
  Form of Commitment Transfer Supplement

  



 


iv





















 


CREDIT
AGREEMENT


 


THIS CREDIT AGREEMENT,
dated as of January 28, 2005 (the “Credit Agreement”), is by and
among HNI Corporation, an Iowa corporation (the “Borrower”), those
Domestic Subsidiaries of the Borrower identified as “Guarantors” on the
signature pages hereto and such other Domestic Subsidiaries of the Borrower as
may from time to time become a party hereto (the “Guarantors”), the
lenders named herein and such other lenders as may become a party hereto
(collectively, the “Lenders” and individually, a “Lender”) and WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent
for the Lenders (in such capacity, the “Administrative Agent”).


 


W I T N E
S S E T H


 


WHEREAS, the
Borrower has requested that the Lenders provide a $150,000,000 revolving credit
facility for the purposes hereinafter set forth; and


 


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


 


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


 


SECTION 1

DEFINITIONS


 


1.1                                 Definitions.


 


As used in this Credit Agreement, the
following terms shall have the meanings specified below unless the context
otherwise requires:


 


“Account Designation Letter” means the
Notice of Account Designation Letter dated the Closing Date from the Borrower
to the Administrative Agent in substantially the form attached hereto as Schedule 1.1.


 


“Administrative Agent” has the meaning
set forth in the first paragraph hereof, together with any successors or
assigns.


 


“Affiliate” means as to any Person,
any other Person which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person.  For purposes of this definition, a Person
shall be deemed to be “controlled by” a Person if such Person possesses,
directly or indirectly, power either (a) to vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or
(b) to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.


 


1





















 


“Aggregate Revolving Committed Amount”
means the aggregate amount of Commitments in effect from time to time, being
initially ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000)
(as such amount may be increased as provided in Section 2.5 or
reduced as provided in Section 2.9 from time to time).


 


“Alternate Base Rate” means, for any
day, the rate per annum (rounded upwards, if necessary, to the nearest whole
multiple of 1/100 of 1%) equal to the greater of (a) the Federal Funds Rate in
effect on such day plus 1⁄2 of 1% or (b) the Prime Rate in effect on such
day.  If for any reason the
Administrative Agent shall have reasonably determined (which determination
shall be conclusive absent manifest error) that it is unable after due inquiry
to ascertain the Federal Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Alternate Base Rate shall be determined
without regard to clause (a) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist.  Any change in the Alternate Base Rate due to
a change in the Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Rate,
respectively.


 


“Alternate Base Rate Loans” means
Loans that bear interest at an interest rate based on the Alternate Base Rate.


 


“Anti-Terrorism Laws” has the meaning
set forth in Section 3.18.


 


“Applicable Percentage” means, for any
day, the rate per annum set forth below opposite the applicable level then in
effect, it being understood that the Applicable Percentage for (a) Revolving Loans that are Alternate Base Rate
Loans shall be the percentage set forth under the column “Alternate Base Rate
Margin for Revolving Loans,” (b)
Revolving Loans that are LIBOR Rate Loans shall be the percentage set forth
under the column “LIBOR Rate Margin for Revolving Loans and Letter of Credit
Fee,” (c) the Letter of Credit Fee shall
be the percentage set forth under the column “LIBOR Rate Margin for Revolving
Loans and Letter of Credit Fee,” and (d)
the Facility Fee shall be the percentage set forth under the column “Facility
Fee”:


 


Applicable Percentage


 


	
  Level

  	
   

  	
  Leverage Ratio

  	
   

  	
  Alternate Base Rate

  Margin for

  Revolving Loans

  	
   

  	
  LIBOR Rate Margin for

  Revolving Loans

  and Letter of Credit Fee

  	
   

  	
  Facility Fee

  	
   

  
	
  I

  	
   

  	
  > 2.50 to
  1.0

  	
   

  	
  0.000

  	
  %

  	
  0.550

  	
  %

  	
  0.200

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  < 2.50 to
  1.0 but

  > 1.75 to 1.0

  	
   

  	
  0.000

  	
  %

  	
  0.475

  	
  %

  	
  0.150

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  < 1.75 to
  1.0 but

  > 1.00 to 1.0

  	
   

  	
  0.000

  	
  %

  	
  0.450

  	
  %

  	
  0.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IV

  	
   

  	
  < 1.00 to
  1.0

  	
   

  	
  0.000

  	
  %

  	
  0.350

  	
  %

  	
  0.100

  	
  %

  



 


The Applicable Percentage shall, in each
case, be determined and adjusted quarterly as of the date on which the
Administrative Agent has received from the Borrower the financial information
and certifications required to be delivered to the Administrative Agent and the


 


2





















 


Lenders in accordance with the provisions of Sections 5.1(a)
and (b) and Section 5.2(b) (each an “Interest Determination Date”).  Such Applicable Percentage shall be effective
from such Interest Determination Date until the next such Interest
Determination Date.  The initial
Applicable Percentages shall be based on Level IV until the first Interest
Determination Date occurring after the delivery of the officer’s compliance
certificate pursuant to Section 5.2(b) for the quarter ending April 2,
2005.  After the Closing Date, if the
Borrower shall fail to provide the quarterly financial information and
certifications in accordance with the provisions of Sections 5.1(a)
and (b) and Sections 5.2(a) and (b), the Applicable
Percentage from such Interest Determination Date shall, on the date five (5)
Business Days after the date by which the Borrower was so required to provide
such financial information and certifications to the Administrative Agent and
the Lenders, be based on Level I until such time as such information and
certifications are provided, whereupon the Applicable Percentage shall be
determined by the then current Leverage Ratio.


 


“Applicable Time”
means, with respect to any borrowings and payments in Foreign Currencies, the
local times in the place of settlement for such Foreign Currencies as may be
determined by the Administrative Agent to be necessary for timely settlement on
the relevant date in accordance with normal banking procedures in the place of
payment.


 


“Bankruptcy Code” means the Bankruptcy
Code in Title 11 of the United States Code, as amended, modified, succeeded or
replaced from time to time.


 


“Borrower” has the meaning set forth
in the first paragraph hereof, together with any successors or assigns.


 


“Business Day” means any day other
than a Saturday, Sunday or legal holiday on which commercial banks in
Charlotte, North Carolina and New York, New York are authorized
or required by law to close; provided, however, that
(a) when used in connection with a rate determination, borrowing or
payment in respect of a LIBOR Rate Loan, the term “Business Day” shall also
exclude any day on which banks in London, England are not open for dealings in
deposits of Dollars or Foreign Currencies, as applicable, in the London
interbank market and (b) with respect to any Foreign Currency Loan, the
term “Business Day” shall also exclude any day on which banks are not generally
open for foreign exchange dealings between banks in the exchange of the home
country of the applicable Foreign Currency.


 


“Capital Lease” means, as applied to
any Person, any lease of any Property (whether real, personal or mixed) by that
Person as lessee which, in accordance with GAAP, is or should be accounted for
as a capital lease on the balance sheet of that Person.


 


“Capital Stock” means (a) in the case of a corporation, capital stock,
(b) in the case of an association or
business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a
limited liability company, membership interests and (e) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distribution of
assets of, the issuing Person.


 


3





















 


“Cash Equivalents” means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than three years from the date of acquisition (“Government Obligations”),
(b) U.S. dollar denominated (or
foreign currency fully hedged) time deposits, certificates of deposit,
Eurodollar time deposits and Eurodollar certificates of deposit of (i) any United States commercial bank of
recognized standing having capital and surplus in excess of $200,000,000, (ii) any Lender or (iii) any bank whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or
the equivalent thereof (any such bank and any Lender being an “Approved Bank”),
in each case with maturities of not more than three years from the date of
acquisition, (c) commercial paper
and variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any, or guaranteed by any, domestic corporation rated A-2
(or the equivalent thereof) or better by S&P or P-2 (or the equivalent
thereof) or better by Moody’s and maturing within 270 days of the date of
acquisition, (d) asset-backed
securities and/or mortgage-backed securities which have a maturity or for which
the holder thereof has the right to put such securities not more than three
years after the date of acquisition and which is rated, at the date of
acquisition thereof, P-2 (or the equivalent thereof) or better by Moody’s, or
A-2 (or the equivalent thereof) or better by S&P, (e) securities of the type described in clauses (a) through
(d), inclusive, above purchased under agreements to resell such securities to
any broker/dealer or any commercial bank, if such broker/dealer or bank has an
uninsured, unsecured and unguaranteed rating at the time of the acquisition of
P-2 (or the equivalent thereof) or better by Moody’s, or A-2 (or the equivalent
thereof) or better by S&P, (f) obligations
of any state of the United States or any political subdivision thereof for the
payment of the principal and redemption price of and interest on which there
shall have been irrevocably deposited Government Obligations maturing as to
principal and interest at times and in amounts sufficient to provide such
payment and (g) Investments in
mutual funds registered under the Investment Company Act of 1940, as amended,
or collective trust funds maintained by Approved Banks, in each case whose only
assets are of the type described in clauses (a) through (f), inclusive, of
this definition.


 


“Change of Control” means (a) any
Person or two or more Persons acting in concert shall have acquired “beneficial
ownership” (within the meaning provided in Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of, or shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of, or control over, Voting Stock of the
Borrower (or other securities convertible into such Voting Stock) representing
25% or more of the combined voting power of all Voting Stock of the Borrower,
(b) Continuing Directors shall cease for any reason to constitute a majority of
the members of the board of directors of the Borrower then in office, (c) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Borrower and its Subsidiaries taken as a
whole to any “person” (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934) or (d) the adoption by the stockholders
of the Borrower of a plan or proposal for the liquidation or dissolution of the
Borrower.


 


“Closing Date” means the date hereof.


 


4





















 


“Code” means the Internal Revenue Code
of 1986, as amended, and any successor statute thereto, as interpreted by the
rules and regulations issued thereunder, in each case as in effect from time to
time.  References to sections of the Code
shall be construed also to refer to any successor sections.


 


“Commitment” means the Revolving
Commitment, the LOC Commitment and the Swingline Commitment, individually or
collectively, as appropriate.


 


“Commitment Percentage” means, for
each Lender, a fraction (expressed as a decimal) the numerator of which is the
Commitment of such Lender at such time and the denominator of which is the
Aggregate Revolving Committed Amount at such time.  The initial Commitment Percentages are set
out on Schedule 2.1(a).


 


“Commitment Period” means the period
from and including the Closing Date to but not including the earlier of (a) the Maturity Date, or (b) the date on which the Commitments terminate
in accordance with the provisions of this Credit Agreement.


 


“Commitment Transfer Supplement” means
a Commitment Transfer Supplement substantially in the form of Schedule 10.6(c).


 


“Competitive Bid” means an offer by a
Lender to make a Competitive Loan pursuant to the terms of Section 2.2.


 


“Competitive Bid Rate” means, as to
any Competitive Bid made by a Lender in accordance with the provisions of Section 2.2,
the fixed rate of interest offered by the Lender making the Competitive Bid.


 


“Competitive Bid Request” means a
request by the Borrower for Competitive Bids in accordance with the provisions
of Section 2.2(b).


 


“Competitive Loan” means a loan made
by a Lender in its discretion pursuant to the provisions of Section 2.2.


 


“Competitive Loan Lenders” means, at
any time, those Lenders which have Competitive Loans outstanding.


 


“Consolidated Assets” means, at any
time, the amount representing the assets of the Borrower and the Subsidiaries
that would appear on a consolidated balance sheet of the Borrower and its
Subsidiaries at such time prepared in accordance with GAAP.


 


“Consolidated EBITDA” means, for any
period, (a) Consolidated Net Income for such period plus (b) the sum of the
following to the extent deducted in calculating Consolidated Net Income:  (i) Consolidated Interest Expense for such
period, (ii) the provision for Federal, state, local and foreign income
taxes payable by the Borrower and its Subsidiaries for such period,
(iii) depreciation and amortization expense for such period and
(iv) other non-recurring expenses


 


5





















 


of the Borrower and its Subsidiaries reducing such Consolidated Net
Income which do not represent a cash item in such period or any future period
and minus (c) the following to the extent included in calculating
such Consolidated Net Income: (i) Federal, state, local and foreign income
tax credits of the Borrower and its Subsidiaries for such period and
(ii) all non-cash items increasing Consolidated Net Income for such
period.


 


“Consolidated Funded Debt” means, as
of any date of determination, Funded Debt of the Borrower and its Subsidiaries
on a consolidated basis.


 


“Consolidated Interest Expense” means,
for any period, all Interest Expense (excluding amortization of debt discount
and premium, but including the interest component under Capital Leases) for
such period of the Borrower and its Subsidiaries on a consolidated basis.


 


“Consolidated Net Income” means, for
any period, for the Borrower and its Subsidiaries on a consolidated basis, the
net income of the Borrower and its Subsidiaries (excluding extraordinary gains
but including extraordinary losses) for that period.


 


“Consolidated Net Tangible Assets”
means, at any time, the amount representing the assets of the Borrower and the
Subsidiaries that would appear on a consolidated balance sheet of the Borrower
and its Subsidiaries at such time prepared in accordance with GAAP, less (a)
all current liabilities and minority interests and (b) goodwill and other
intangibles.


 


“Continuing Directors” means, during
any period of up to 12 consecutive months commencing after the Closing
Date, individuals who at the beginning of such 12 month period were
directors of the Borrower (together with any new director whose election by the
Borrower’s board of directors or whose nomination for election by the Borrower’s
shareholders was approved by a vote of at least two-thirds of the directors
then still in office who either were directors at the beginning of such period
or whose election or nomination for election was previously so approved).


 


“Credit Documents” means a collective
reference to this Credit Agreement, the Notes, the LOC Documents, the Fee
Letter, any Joinder Agreement and all other related agreements and documents
issued or delivered hereunder or thereunder or pursuant hereto or thereto
(excluding, however, any Hedging Agreement).


 


“Credit Party” means any of the
Borrower or the Guarantors.


 


“Credit Party Obligations” means,
without duplication, (a) all of the
obligations of the Credit Parties to the Lenders (including the Issuing Lender)
and the Administrative Agent, whenever arising, under this Credit Agreement or
any of the other Credit Documents (including, but not limited to, any interest
accruing after the occurrence of a filing of a petition of bankruptcy under the
Bankruptcy Code with respect to any Credit Party, regardless of whether such
interest is an allowed claim under the Bankruptcy Code) and (b) all liabilities and obligations, whenever
arising, owing from any Credit Party or any of its Subsidiaries to any Hedging
Agreement Provider arising under any Hedging Agreement permitted pursuant to Section 6.1(e).


 


6





















 


“Default” means any event, act or
condition which with notice or lapse of time, or both, would constitute an
Event of Default.


 


“Defaulting Lender” means, at any
time, any Lender that, at such time, (a)
has failed to make a Loan required pursuant to the terms of this Credit
Agreement, (b) has failed to pay to the
Administrative Agent or any Lender an amount owed by such Lender pursuant to
the terms of the Credit Agreement or any other of the Credit Documents, or (c) has been deemed insolvent or has become
subject to a bankruptcy or insolvency proceeding or to a receiver, trustee or
similar proceeding.


 


“Determination Date” means each of the
following:  (a) each date a LIBOR
Rate Loan denominated in a Foreign Currency is made pursuant to Section 2.3,
(b) each date a LIBOR Rate Loan denominated in a Foreign Currency is
continued pursuant to Section 2.3, (c) the last Business Day of
each calendar month, (d) such additional dates as the Administrative Agent
or the Required Lenders shall specify.


 


“Dollar Amount” means, at any time,
(a) with respect to Dollars or an amount denominated in Dollars, such
amount and (b) with respect to an amount of any Foreign Currency or an
amount denominated in such Foreign Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent at such time on the basis of
the Spot Rate (determined in respect of the most recent Determination Date) for
the purchase of Dollars with such Foreign Currency.


 


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


 


“Domestic Subsidiary” means any
Subsidiary that is organized and existing under the laws of the United States
or any state or commonwealth thereof or under the laws of the District of
Columbia.


 


“EMU” means Economic and Monetary
Union as contemplated in the Treaty on European Union.


 


“EMU Legislation” means legislative
measures of the European Council (including without limitation European Council
regulations) for the introduction of, changeover to or operation of a single or
unified European currency (whether known as the Euro or otherwise), being in
part the implementation of the third stage of EMU.


 


“Environmental Laws” means any and all
applicable foreign, federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, requirements of any
Governmental Authority regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time be in effect during the term of this Credit
Agreement.


 


“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended, and any successor statute thereto, as
interpreted by the rules and regulations thereunder, all as the


 


7





















 


same may be in effect from time to time.  References to sections of ERISA shall be
construed also to refer to any successor sections.


 


“ERISA
Affiliate” means an entity which is under common control with any Credit
Party within the meaning of Section 4001(a)(14) of ERISA, or is a member
of a group which includes any Credit Party and which is treated as a single
employer under Sections 414(b) or (c) of the Code.


 


“Euro” means the single currency of
Participating Member States of the European Union.


 


“Eurodollar Reserve Percentage” means
for any day, (A) with respect to any LIBOR Rate Loan with respect to which the
Mandatory Cost Rate does not apply, the percentage (expressed as a decimal and
rounded upwards, if necessary, to the next higher 1/100th of 1%) that is in
effect for such day as prescribed by the Federal Reserve Board (or any successor)
for determining the maximum reserve requirement (including without limitation
any basic, supplemental or emergency reserves) in respect of Eurocurrency
liabilities, as defined in Regulation D of such Board as in effect from
time to time, or any similar category of liabilities for a member bank of the
Federal Reserve System in New York City and (B) with respect to any LIBOR
Rate Loan with respect to which the Mandatory Cost Rate does apply, zero (0).


 


“Euro Unit” means the currency unit of
the Euro.


 


“Event of Default” means such term as
defined in Section 7.1.


 


“Extension of Credit” means, as to any
Lender, the making of a Loan by such Lender or the issuance of, or
participation in, a Letter of Credit by such Lender.


 


“Existing Facilities” means the
facilities under that certain credit agreement dated May 10, 2002 among the
Borrower, the lenders party thereto and Deutsche Bank Trust Company Americas,
as administrative agent.


 


“Existing Letters of Credit” means the
letters of credit issued by Wachovia prior to the Closing Date as more
particularly described on Schedule 1.1B attached hereto.


 


“Facility Fee” has the meaning set
forth in Section 2.10(a).


 


“Federal Funds Rate” means, for any
day, the rate of interest per annum (rounded upwards, if necessary, to the
nearest whole multiple of 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System of the United States 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 and (b) if no such rate is so published on such next
preceding Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to the Administrative Agent on such day on such
transactions as reasonably determined by the Administrative Agent.


 


8





















 


“Fee Letter” means that certain letter
agreement, dated as of November 9, 2004, among the Administrative Agent,
the Lead Arranger and the Borrower, as amended, modified, supplemented or
replaced from time to time.


 


“Fees” means all fees payable pursuant
to Section 2.10.


 


“Foreign Currency” means
(a) Euros and (b) any other freely available currency that is freely
transferable and freely convertible into Dollars and in which dealings in
deposits are carried on in the London interbank market, which shall be
requested by the Borrower and approved by the Administrative Agent, such
approval not to be unreasonably withheld or delayed.


 


“Foreign Currency Equivalent” means,
with respect to any amount denominated in Dollars, the equivalent amount
thereof in the applicable Foreign Currency as determined by the Administrative
Agent at such time on the basis of the Spot Rate (determined in respect of the
most recent Determination Date) for the purchase of such Foreign Currency with
Dollars.


 


“Foreign Currency Loan” means any
Swingline Loan denominated in a Foreign Currency.


 


“Funded Debt” means, with respect to
any Person, without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (c) all obligations of such Person under conditional
sale or other title retention agreements relating to property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (d)
all obligations of such Person incurred, issued or assumed as the deferred
purchase price of property or services purchased by such Person (other than
trade debt and other accrued liabilities incurred in the ordinary course of
business that are not overdue by more than 90 days unless being contested
in good faith) that would appear as liabilities on a balance sheet of such
Person which purchase price is (i) due more than six months from the date of
incurrence of the obligation in respect thereof or (ii) evidenced by a note or
a similar written instrument, (e) the principal portion of all obligations
of such Person under Capital Leases, (f) all obligations of such Person under
Hedging Agreements to the extent required to be accounted for as a liability
under GAAP, excluding any portion thereof which would be accounted for as
interest expense under GAAP, (g) the maximum amount of all letters of credit
issued or bankers’ acceptances facilities created for the account of such
Person and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed) other than (i) commercial letters of credit, bankers
acceptances, or the functional equivalent thereof issued to support payment
obligations in connection with trade payables incurred in the ordinary course
of business, and (ii) standby letters of credit having an aggregate stated
amount of up to $25,000,000, (h) all preferred Capital Stock or other
equity interests issued by such Person and which by the terms thereof could be
(at the request of the holders thereof or otherwise) subject to mandatory
sinking fund payments prior to the date six months after the Maturity Date,
redemption prior to the date six months after the Maturity Date or other
acceleration, (i) the principal balance outstanding under any synthetic
lease, tax retention operating lease, off-balance sheet loan or


 


9





















 


similar off-balance sheet financing product, (j) all Indebtedness of
others of the type described in clauses (a) through (i) hereof secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed; provided that so long as
such Indebtedness is non-recourse to such Person, only the portion of such
obligations which is secured shall constitute Indebtedness hereunder,
(k) all Guaranty Obligations of such Person with respect to Indebtedness
of another Person of the type described in clauses (a) through (i) hereof, and
(l) all Indebtedness of the type described in clauses (a) through (i) hereof of
any partnership or unincorporated joint venture in which such Person is a
general partner or a joint venturer.


 


“GAAP” means generally accepted
accounting principles in the United States applied on a consistent basis and
subject to the terms of Section 1.3 hereof.


 


“Government Acts” has the meaning set
forth in Section 2.19(a).


 


“Governmental Authority” means any
nation or government, any state or other political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.


 


“Guarantors” means (a) any of the
Subsidiaries identified as a “Guarantor” on the signature pages hereto and (b)
any Person which executes a Joinder Agreement, together with their successors
and permitted assigns.


 


“Guaranty” means the guaranty of the
Guarantors set forth in Section 9.


 


“Guaranty Obligations” means, with
respect to any Person, without duplication, any obligations of such Person
(other than endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to guarantee
any Indebtedness of any other Person in any manner, whether direct or indirect,
and including without limitation any obligation, whether or not contingent, (a) to purchase any such Indebtedness or any
property constituting security therefore, (b)
to advance or provide funds or other support for the payment or purchase of any
such Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep well
agreements, maintenance agreements, comfort letters or similar agreements or
arrangements) for the benefit of any holder of Indebtedness of such other
Person, (c) to lease or purchase
Property, securities or services primarily for the purpose of assuring the
holder of such Indebtedness of the payment or performance thereof, or (d) to otherwise assure or hold harmless
the holder of such Indebtedness against loss in respect thereof.  The amount of any Guaranty Obligation shall
(subject to any limitations set forth therein) be deemed to be an amount equal
to the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guaranty Obligation is made or, if
not stated or determinable, the maximum reasonably anticipated liability in
respect thereof.


 


“Hedging Agreement Provider” means any
Person that enters into a Hedging Agreement with a Credit Party or any of its
Subsidiaries that is permitted by Section 6.1(e) to the extent such
Person is a (a) Lender, (b) an Affiliate of a Lender or (c) any other Person that was a Lender (or


 


10





















 


an Affiliate of a Lender) at the time it entered into the Hedging
Agreement but has ceased to be a Lender (or whose Affiliate has ceased to be a
Lender) under the Credit Agreement.


 


“Hedging Agreements” means, with
respect to any Person, any agreement entered into to protect such Person
against fluctuations in interest rates, or currency or raw materials values,
including, without limitation, any interest rate swap, cap or collar agreement
or similar arrangement between such Person and one or more counterparties, any
foreign currency exchange agreement, currency protection agreements, commodity
purchase or option agreements or other interest or exchange rate or commodity
price hedging agreements.


 


“Indebtedness” means, with respect to
any Person, without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (c) all obligations of such Person under conditional
sale or other title retention agreements relating to property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (d)
all obligations of such Person incurred, issued or assumed as the deferred
purchase price of property or services purchased by such Person (other than
trade debt and other accrued liabilities incurred in the ordinary course of
business that are not overdue by more than 90 days unless being contested
in good faith) that would appear as liabilities on a balance sheet of such
Person which purchase price is (i) due more than six months from the date of
incurrence of the obligation in respect thereof or (ii) evidenced by a note or
a similar written instrument, (e) all obligations of such Person under
take-or-pay or similar arrangements or under commodities agreements, (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on,
or payable out of the proceeds of production from, property owned or acquired
by such Person, whether or not the obligations secured thereby have been
assumed; provided that so long as such Indebtedness is non-recourse to
such Person, only the portion of such obligations which is secured shall
constitute Indebtedness hereunder, (g) all Guaranty Obligations of such Person
with respect to Indebtedness of another Person, (h) the principal portion of
all obligations of such Person under Capital Leases plus any accrued interest
thereon, (i) all obligations of such Person under Hedging Agreements to the
extent required to be accounted for as a liability under GAAP, excluding any
portion thereof which would be accounted for as interest expense under GAAP,
(j) the maximum amount of all letters of credit issued or bankers’ acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed) other than commercial
letters of credit, bankers acceptances, or the functional equivalent thereof
issued to support payment obligations in connection with trade payables
incurred in the ordinary course of business, (k) all preferred Capital Stock or
other equity interest issued by such Person and which by the terms thereof
could be (at the request of the holders thereof or otherwise) subject to
mandatory sinking fund payments prior to the date six months after the Maturity
Date, redemption prior to the date six months after the Maturity Date or other
acceleration, (l) the principal balance outstanding under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance
sheet financing product plus any accrued interest thereon, and (m) the
Indebtedness of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer.


 


11





















 


“Insolvency” means, with respect to
any Multiemployer Plan, the condition that such Plan is insolvent within the
meaning of such term as used in Section 4245 of ERISA.


 


“Intangibles” means all assets which
would be shown as intangible assets on a balance sheet prepared in accordance
with GAAP.


 


“Interest Coverage Ratio” means, as of
any date of determination, the ratio of (i) Consolidated EBITDA for the period
of the four prior fiscal quarters ending on such date to (ii) Consolidated
Interest Expense paid or payable in cash during such period.


 


“Interest Expense” means, with respect
to any Person for any period, the sum of the amount of interest paid or accrued
in respect of such period.


 


“Interest Payment Date” means
(a) as to any Alternate Base Rate Loan or Swingline Loan bearing interest
at the Alternate Base Rate, the last day of each March, June, September and
December and on the Maturity Date, (b) as to any LIBOR Rate Loan or
Competitive Loan having an Interest Period of three months or less, the last
day of such Interest Period, and (c) as to any LIBOR Rate Loan or
Competitive Loan having an Interest Period longer than three months, each day
which is three months after the first day of such Interest Period and the last
day of such Interest Period.


 


“Interest Period” means, (a) as to any
LIBOR Rate Loan which is a Revolving Loan, a period of one, two, three or six
months duration, as the Borrower may elect, commencing in each case, on the
date of the borrowing (including conversions, extensions and renewals), (b) as
to any LIBOR Rate Loan which is a Swingline Loan denominated in a Foreign
Currency, a period of one or three months duration and (c) with respect to any
Competitive Loan, a period of not less than seven (7) nor more than 180
days’ duration, as the Borrower may request and the Competitive Loan Lender may
agree in accordance with the provisions of Section 2.2; provided,
however, (i) if any Interest Period pertaining to a LIBOR Rate Loan
would otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding
Business Day, (ii) any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the relevant calendar
month, (iii) any Interest Period in respect of any Loan that would otherwise
extend beyond the Maturity Date is due on the Maturity Date and (iv) no more
than eight (8) LIBOR Rate Loans may be in
effect at any time.  For purposes hereof,
LIBOR Rate Loans with different Interest Periods shall be considered as
separate LIBOR Rate Loans, even if they shall begin on the same date and have
the same duration, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing
Interest Periods to constitute a new LIBOR Rate Loan with a single Interest
Period.


 


“Investment” has the meaning set forth
in Section 6.5.


 


12





















 


“Issuing Lender” means Wachovia.


 


“Issuing Lender Fees” has the meaning
set forth in Section 2.10(c).


 


“Joinder Agreement” means a Joinder
Agreement in substantially the form of Schedule 5.8, executed and
delivered by each Person required to become a Guarantor in accordance with the
provisions of Section 5.8.


 


“Lead Arranger” means Wachovia Capital
Markets, LLC, together with its successors and assigns.


 


“Lenders” means each of the Persons
identified as a “Lender” on the signature pages hereto and the Swingline
Lender, and their respective successors and assigns.


 


“Letters of Credit” means any letter
of credit issued by the Issuing Lender pursuant to the terms hereof and each
Existing Letter of Credit, as such letters of credit may be amended, restated,
modified, extended, renewed or replaced from time to time.


 


“Letter of Credit Fee” has the meaning
set forth in Section 2.10(b).


 


“Leverage Ratio” means, as of any date
of determination, the ratio of (a) Consolidated Funded Debt as of such date to
(b) Consolidated EBITDA for the period of the four prior fiscal quarters ending
on such date.


 


“LIBOR” means, for any LIBOR Rate Loan
for any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars or
the applicable Foreign Currency, as appropriate, at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period.  If for any reason such rate is not available,
the term “LIBOR” shall mean, for any LIBOR Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in Dollars or the applicable Foreign Currency, as
appropriate, at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%).  If, for any
reason, neither of such rates is available, then “LIBOR” shall mean the rate
per annum at which, as determined by the Administrative Agent, Dollars in an
amount comparable to the Loans then requested are being offered to leading
banks at approximately 11:00 A.M. London time, two (2) Business Days
prior to the commencement of the applicable Interest Period for settlement in
immediately available funds by leading banks in the London interbank market for
a period equal to the Interest Period selected. 
With respect to any LIBOR Rate Loan denominated in Pounds Sterling, for
any Interest Period, “LIBOR” shall mean the rate equal to the sum of (A) the
rate determined in accordance with the foregoing terms of this definition plus
(B) the Mandatory Cost Rate for such Interest Period.


 


13





















 


“LIBOR Lending Office” means,
initially, the office of each Lender designated as such Lender’s LIBOR Lending
Office shown on Schedule 10.2; and thereafter, such other office of
such Lender as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office of such Lender at which the LIBOR Rate
Loans of such Lender are to be made.


 


“LIBOR Rate” means a rate per annum
(rounded upwards, if necessary, to the next higher 1/100th of 1%) determined by
the Administrative Agent pursuant to the following formula:


 


	
  LIBOR Rate =

  	
   

  	
  LIBOR

  
	
   

  	
   

  	
  1.00 -
  Eurodollar Reserve Percentage

  



 


“LIBOR Rate Loan” means any Loan
bearing interest at a rate determined by reference to the LIBOR Rate.  LIBOR Rate Loans which are Swingline Loans
may be denominated in Dollars or in Foreign Currencies.  All Swingline Loans denominated in Foreign
Currencies shall be LIBOR Rate Loans.


 


“Lien” means any mortgage, pledge,
hypothecation, assignment, deposit arrangement, security interest, encumbrance,
lien (statutory or otherwise), preference, priority or charge of any kind
(including any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the Uniform Commercial
Code as adopted and in effect in the relevant jurisdiction or other similar
recording or notice statute, and any lease in the nature thereof).


 


“Loan” or “Loans” means a
Revolving Loan, a Swingline Loan and/or Competitive Loans, as appropriate.


 


“LOC Commitment” means the commitment
of the Issuing Lender to issue Letters of Credit and with respect to each
Lender, the commitment of such Lender to purchase participation interests in
the Letters of Credit up to such Lender’s LOC Committed Amount as specified in Schedule 2.1(a),
as such amount may be reduced from time to time in accordance with the
provisions hereof.


 


“LOC Commitment Percentage” means, for
each Lender, the percentage identified as its LOC Commitment Percentage on Schedule 2.1(a),
as such percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 10.6(c).


 


“LOC Committed Amount” means,
collectively, the aggregate amount of all of the LOC Commitments of the Lenders
to issue and participate in Letters of Credit as referenced in Section 2.4
and, individually, the amount of each Lender’s LOC Commitment as specified in Schedule 2.1(a).


 


“LOC Documents” means, with respect to
any Letter of Credit, such Letter of Credit, any amendments thereto, any
documents delivered in connection therewith, any application therefor, and any
agreements, instruments, guarantees or other documents (whether general in
application


 


14





















 


or applicable only to such Letter of Credit) governing or providing for
(a) the rights and obligations of the
parties concerned or (b) any collateral
security for such obligations.


 


“LOC Obligations” means, at any time,
the sum of (a) the maximum amount which
is, or at any time thereafter may become, available to be drawn under Letters
of Credit then outstanding, assuming compliance with all requirements for
drawings referred to in such Letters of Credit plus (b) the aggregate amount of all drawings under
Letters of Credit honored by the Issuing Lender but not theretofore reimbursed.


 


“Mandatory Borrowing” with respect to
(a) Swingline Loans, has the meaning set forth in Section 2.3(b)
and (b) with respect to Letters of Credit, the meaning set forth in Section 2.4(e).


 


“Mandatory Cost Rate” means, with
respect to any period, a rate per annum determined in accordance with Schedule 1.1C.


 


“Material”
means material in relation to the business, operations, affairs, financial
condition, assets, or properties of the Borrower and its Subsidiaries taken as
a whole.


 


“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 Borrower and its Subsidiaries taken
as a whole; (b) a material impairment of the ability of any Credit Party
to perform its obligations under this Credit Agreement or any Note to which it
is a party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Credit Party of this Credit
Agreement or any Note to which it is a party.


 


“Materials of Environmental Concern”
means any gasoline or petroleum (including crude oil or any fraction thereof)
or petroleum products or any hazardous or toxic substances, materials, or
wastes, defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.


 


“Maturity Date” means, as to each Lender,
the fifth anniversary of the Closing Date.


 


“Moody’s” means Moody’s Investors
Service, Inc., or any successor or assignee of the business of such company in
the business of rating securities.


 


“Multiemployer Plan” means a Plan
which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 


“National Currency Unit” means a
fraction or multiple of one Euro Unit expressed in units of the former national
currency of a Participating Member State.


 


“Non-Guarantor Subsidiaries” has the
meaning given to such term in Section 5.8.


 


“Note” or “Notes” means the
promissory notes of the Borrower in favor of each of the Lenders that request
such notes (a) evidencing the Revolving Loans and Competitive Loans in


 


15





















 


substantially the form attached as Schedule 2.1(e) or (b)
evidencing the Swingline Loans in substantially the form attached as Schedule 2.3(e),
with the foregoing individually or collectively, as appropriate, as such
promissory notes may be amended, modified, supplemented, extended, renewed or
replaced from time to time.


 


“Notice of Borrowing” means a written
notice of borrowing in substantially the form of Schedule 2.1(b)(i),
as required by Section 2.1(b)(i).


 


“Notice of Extension/Conversion” means
the written notice of extension or conversion in substantially the form of Schedule 2.7,
as required by Section 2.7.


 


“Participant” has the meaning set
forth in Section 10.6(b).


 


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


 


“Participation Interest” means the
purchase by a Lender of a participation interest in Swingline Loans as provided
in Section 2.3(b)(ii) or in Letters of Credit as provided in Section 2.4(c).


 


“Patriot Act” has the meaning set
forth in Section 8.10.


 


“PBGC” means the Pension Benefit
Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.


 


“Permitted Acquisition” means any
acquisition or any series of related acquisitions by the Borrower or any of its
Subsidiaries of substantially all of the assets or a majority of the Voting
Stock of a Person, or any division, line of business or other business unit of
a Person (such Person or such division, line of business or other business unit
of such Person referred to herein as the “Target”), in each case that is
a type of business (or assets used in a type of business) permitted to be
engaged in by the Credit Parties and their Subsidiaries pursuant to Section 6.3
hereof, so long as (a) no Default or
Event of Default shall then exist or would exist after giving effect thereto, (b) the Credit Parties will be in
compliance on a Pro Forma Basis with all of the terms and provisions of the
financial covenants set forth in Section 5.9 after giving effect to
such acquisition, (c) the Target
executes a Joinder Agreement in accordance with, if required by, the terms of Section 5.8,
(d) immediately after giving effect
to such acquisition, there shall be at least $25,000,000 of borrowing
availability under the Aggregate Revolving Committed Amount and (e) if the purchase price for such
acquisition is in excess of $50,000,000, such acquisition (i) is not a “hostile”
acquisition and has been approved by the board of directors and/or shareholders
of Target and (ii) the Borrower delivers a certificate with respect to such
acquisition in accordance with Section 5.2(e).


 


“Permitted Investments” has the
meaning set forth in Section 6.5.


 


16





















 


“Permitted Liens” means:


 


(a)                                  Liens created by or
otherwise existing, under or in connection with this Credit Agreement or the
other Credit Documents in favor of the Lenders;


 


(b)                                 purchase money Liens
securing purchase money indebtedness and Liens arising in connection with
Capital Leases, to the extent each is permitted under Section 6.1(d);


 


(c)                                  Liens for taxes,
assessments, charges or other governmental levies not yet due or as to which
the period of grace, if any, related thereto has not expired or which are being
contested in good faith by appropriate proceedings diligently pursued, provided
that adequate reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with GAAP (or,
in the case of Subsidiaries with significant operations outside of the United
States of America, generally accepted accounting principles in effect from time
to time in their respective jurisdictions of incorporation);


 


(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 sixty (60) days or which are being contested in good faith by
appropriate proceedings diligently pursued, provided that (i) any
proceedings commenced for the enforcement of such Liens and encumbrances shall
have been duly suspended and (ii) adequate reserves with respect thereto are
maintained on the books of the Borrower or its Subsidiaries, as the case may
be, in conformity with GAAP (or, in the case of Subsidiaries with significant
operations outside of the United States of America, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of incorporation);


 


(e)                                  pledges or deposits
in connection with workers’ compensation, unemployment insurance and other
social security legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements;


 


(f)                                    Liens to secure the
performance of bids, trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;


 


(g)                                 Liens existing on the
Closing Date and set forth on Schedule 6.2; provided that no such
Lien shall at any time be extended to cover property or assets other than the
property or assets subject thereto on the Closing Date (other than improvements
thereto or, if required by the terms of the document or instrument creating or
governing such Lien as in effect on the Closing Date, additions thereto and
replacements and substitutions therefor);


 


(h)                                 any Lien existing on
any asset or assets of any Person at the time such Person becomes a Subsidiary
and not created in contemplation of such event, any Lien on


 


17





















 


any specific tangible asset or assets of any
Person existing at the time such Person is merged or consolidated with or into
the Borrower or a Subsidiary, and any Lien existing on any asset or assets
prior to the acquisition thereof by the Borrower or any Subsidiary and not
created in contemplation of such acquisition; provided that in the case
of any Lien permitted under this clause, any such Lien does not by its terms
cover any such assets after the time the Borrower directly or indirectly
acquires such assets that were not covered immediately prior thereto, and any
such Lien does not by its terms secure any Indebtedness other than Indebtedness
existing immediately prior to the time of acquisition of such assets;


 


(i)                                     Liens arising in
the ordinary course of the Borrower’s or any Subsidiary’s business that (i) do
not secure Indebtedness and (ii) do not in the aggregate materially detract
from the value of its assets or materially impair the use thereof in the
operation of its business;


 


(j)                                     Liens at any time
of or resulting from any judgment or award, the time for the appeal or petition
for rehearing of which shall not have expired, or in respect of which Borrower
or a Subsidiary shall at any time in good faith be prosecuting an appeal or
proceeding for a review and in respect of which a stay of execution pending
such appeal or proceeding for review shall have been secured;


 


(k)                                  minor survey
exceptions or minor encumbrances, easements or reservations, or rights of
others for rights-of-way, utilities and other similar purposes, or zoning or
other restrictions as to the use of real properties, which customarily exist on
properties of corporations engaged in similar activities and similarly situated
and which do not in any event materially impair their use in the operation of
the business of Borrower and the Subsidiaries;


 


(l)                                     (i) Liens in favor
of a Credit Party securing Indebtedness of another Credit Party or a
Non-Guarantor Subsidiary, and (ii) Liens in favor of a Non-Guarantor Subsidiary
securing indebtedness of another Non-Guarantor Subsidiary;


 


(m)                               customary rights of
setoff, revocation, refund or chargeback under deposit agreements or under
applicable law, of banks or other financial institutions where the Borrower or
its Subsidiaries maintain deposits in the ordinary course of business;


 


(n)                                 any extension, renewal
or replacement (or successive extensions, renewals or replacements), in whole
or in part, of any Lien referred to in the foregoing clauses; provided
that such extension, renewal or replacement Lien shall be limited to all or a
part of the property which secured the Lien so extended, renewed or replaced
(plus improvements on such property); and


 


(o)                                 other Liens in
addition to those permitted by the foregoing clauses securing Indebtedness in
an aggregate amount not to exceed 15% of Consolidated Net Tangible
Assets determined at such time.


 


18





















 


“Person” means any individual,
partnership, joint venture, firm, corporation, limited liability company,
association, trust or other enterprise (whether or not incorporated) or any
Governmental Authority.


 


“Plan” means any employee benefit plan
(as defined in Section 3(3) of ERISA) which is covered by ERISA and with
respect to which any Credit Party or any ERISA Affiliate is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed
to be) an “employer” as defined in Section 3(5) of ERISA.


 


“Prime Rate” means the rate of
interest per annum publicly announced from time to time by Wachovia as its
prime commercial lending rate in effect at its principal office in Charlotte,
North Carolina, with each change in the Prime Rate being effective on the date
such change is publicly announced as effective (it being understood and agreed
that the Prime Rate is a reference rate used by the Administrative Agent in
determining interest rates on certain loans and is not intended to be the
lowest rate of interest charged on any extension of credit by the
Administrative Agent to any debtor).


 


“Pro Forma Basis” means, with respect
to any transaction, that such transaction shall be deemed to have occurred as
of the first day of the twelve-month period ending as of the most recent
quarter end preceding the date of such transaction.


 


“Properties” has the meaning given to
such term in Section 3.13(a).


 


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


 


“Purchasing Lenders” has the meaning
set forth in Section 10.6(c).


 


“Recovery Event” means the receipt by
the Borrower or any of its Subsidiaries of any cash insurance proceeds or
condemnation award payable by reason of theft, loss, physical destruction or
damage, taking or similar event with respect to any of their respective
property or assets.


 


“Register” has the meaning set forth
in Section 10.6(d).


 


“Regulation T, U, or X” means
Regulation T, U or X, respectively, of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a
portion thereof.


 


“Reorganization” means, with respect
to any Multiemployer Plan, the condition that such Plan is in reorganization
within the meaning of such term as used in Section 4241 of ERISA.


 


“Related Fund” means, with respect to
any Lender, any fund or trust or entity that invests in commercial bank loans
in the ordinary course of business and is advised or managed by (a) such
Lender, (b) an Affiliate of such Lender, (c) any other Lender or any Affiliate
thereof or (d) the same investment advisor as any Person described in clauses
(a) through (c).


 


19





















 


“Reportable Event” means any of the
events set forth in Section 4043(c) of ERISA, other than those events as
to which the thirty-day notice period is waived under PBGC Reg. §4043.


 


“Required Lenders” means, at any time,
Lenders having more than fifty percent (50%) of (a) the Commitments or (b) if
the Commitments have been terminated, the aggregate principal Dollar Amount
(determined, with respect to Foreign Currency Loans, as of the most recent
Determination Date) of Loans (including the Participation Interests of the
Issuing Lender in any Letters of Credit and of the Swingline Lender in any
Swingline Loans) outstanding; provided that the Commitments of, and
outstanding principal Dollar Amount of Loans owing to, a Defaulting Lender
shall be excluded for purposes hereof in making a determination of Required
Lenders.


 


“Requirement of Law” means, as to any
Person, the certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or as to which such Person
or any of its material property is subject.


 


“Responsible Officer” means any of the
Chief Executive Officer, Chief Financial Officer, the Treasurer, the Controller
or any Vice President of the
Borrower.


 


“Restricted Payment” means (a) any
dividend or other distribution, direct or indirect, on account of any shares of
any class of Capital Stock of the Borrower or any of its Subsidiaries, now or
hereafter outstanding, (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
shares of any class of Capital Stock of the Borrower or any of its
Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or other rights
to acquire shares of any class of Capital Stock of the Borrower or any of its
Subsidiaries, now or hereafter outstanding, or (d) any payment or prepayment of
principal of, premium, if any, or interest on, redemption, purchase,
retirement, defeasance, sinking fund or similar payment with respect to, any
Subordinated Indebtedness; provided, however, earnout and other
contingent payments owing or paid with respect to Permitted Acquisitions or
acquisitions entered into prior to the date of this Agreement shall not be
considered Restricted Payments.


 


“Revolving Commitment” means, with
respect to each Lender, the commitment of such Lender to make Revolving Loans
in an aggregate principal Dollar Amount at any time outstanding up to such
Lender’s Revolving Committed Amount as specified in Schedule 2.1(a),
as such amount may be reduced from time to time in accordance with the
provisions hereof.


 


“Revolving Committed Amount” means the
amount of each Lender’s Commitment as specified in Schedule 2.1(a),
as such amount may be reduced from time to time in accordance with the
provisions hereof.


 


“Revolving Loans” has the meaning set
forth in Section 2.1(a).


 


20





















 


“Security” means “security” as defined
in Section 2(1) of the Securities Act of 1933, as amended.


 


“S&P” means Standard & Poor’s
Ratings Group, a division of McGraw Hill, Inc., or any successor or assignee of
the business of such division in the business of rating securities.


 


“Single Employer Plan” means any Plan
covered by title IV of ERISA which is not a Multiemployer Plan.


 


“Spot Rate” means, with respect to any
Foreign Currency, the rate quoted by Wachovia as the spot rate for the purchase
by Wachovia of such Foreign Currency with Dollars 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.


 


“Subordinated Indebtedness” means any
Indebtedness (including, without limitation, any intercompany loans) incurred
by any Credit Party that is specifically subordinated in right of payment to
the prior payment of the Credit Party Obligations on terms acceptable to the
Administrative Agent and the Lenders.


 


“Subsidiary” means, as to any Person,
a corporation, partnership, limited liability company or other entity of which
shares of stock or other ownership interests having ordinary voting power to
elect a majority of the directors or other managers of such corporation,
partnership, limited liability company or other entity (irrespective of whether
or not at the time, any class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency) are at
the time owned by such Person directly or indirectly through Subsidiaries.  Unless otherwise identified, “Subsidiary” or “Subsidiaries”
means Subsidiaries of the Borrower.


 


“Swingline Commitment” means the
commitment of the Swingline Lender to make Swingline Loans in an aggregate
principal amount at any time outstanding up to the Swingline Committed Amount,
and the commitment of the Lenders to purchase participation interests in the
Swingline Loans as provided in Section 2.3(b)(ii), as such amounts
may be reduced from time to time in accordance with the provisions hereof.


 


“Swingline Committed Amount” means the
amount of the Swingline Lender’s Swingline Commitment as specified in Section 2.3(a).


 


“Swingline Lender” means Wachovia, in
its capacity as such.


 


“Swingline Loan” or “Swingline
Loans” has the meaning set forth in Section 2.3(a).


 


“Swingline Note” means the promissory
note of the Borrower in favor of the Swingline Lender evidencing the Swingline
Loans provided pursuant to Section 2.3(e), as such promissory note
may be amended, modified, supplemented, extended, renewed or replaced from time
to time.


 


21





















 


“Target” has the meaning set forth in
the definition of Permitted Acquisition.


 


“Taxes” has the meaning set forth in Section 2.18.


 


“Transfer Effective Date” has the
meaning set forth in each Commitment Transfer Supplement.


 


“Treaty on European Union” means the
Treaty of Rome of March 25, 1957, as amended by the Single European Act
1986 and the Maastricht Treaty (which was signed at Maastricht on February 1,
1992 and came into force on November 1, 1993), as amended from time to
time.


 


“Type” means, as to any Loan, its
nature as an Alternate Base Rate Loan, LIBOR Rate Loan or Swingline Loan, as
the case may be.


 


“Voting Stock” means, with respect to
any Person, Capital Stock issued by such Person the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even
though the right so to vote has been suspended by the happening of such a
contingency.


 


“Wachovia” means Wachovia Bank,
National Association and its successors.


 


“Wholly-Owned Subsidiary” means, at
any time, any Subsidiary of which all of the equity interests (except directors’
qualifying shares or shares aggregating less than 1% of the outstanding shares
of such Subsidiary which are owned by individuals) and voting interests are
owned by any one or more of the Borrower and the Borrower’s other Wholly-Owned
Subsidiaries at such time.


 


1.2                                 Computation of Time Periods, Etc.


 


All time references in this Credit Agreement
and the other Credit Documents shall be to Charlotte, North Carolina time
unless otherwise indicated.  For purposes
of computation of periods of time hereunder, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding.”


 


1.3                                 Accounting Terms.


 


Except as otherwise expressly provided
herein, all accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Lenders hereunder shall be prepared, in accordance with GAAP
applied on a consistent basis.  All
calculations made for the purposes of determining compliance with this Credit
Agreement (including, without limitation, calculation of the financial
covenants set forth in Section 5.9) shall (except as otherwise
expressly provided herein) be made by application of GAAP applied on a basis
consistent with the most recent annual or quarterly financial statements
delivered pursuant to Section 5.1 hereof (or, prior to the delivery
of the first financial statements pursuant to Section 5.1,
consistent with the annual audited financial statements referenced in Section 3.1);
provided, however, if (a) the Borrower shall object to


 


22





















 


determining such compliance on such basis at the time of delivery of
such financial statements due to any change in GAAP or the rules promulgated
with respect thereto or (b) the Administrative Agent or the Required Lenders
shall so object in writing within 30 days after delivery of such financial
statements, then such calculations shall be made on a basis consistent with the
most recent financial statements delivered by the Borrower to the Lenders as to
which no such objection shall have been made.


 


1.4                                 Exchange Rates; Currency Equivalents.


 


(a)                                  The
Administrative Agent shall determine the Spot Rates as of each Determination
Date to be used for calculating the Dollar Amounts of Extensions of Credit and
amounts outstanding hereunder denominated in Foreign Currencies.  Such Spot Rates shall become effective as of
such Determination Date and shall be the Spot Rates employed in converting any
amounts between the applicable currencies until the next Determination Date to
occur.  Except for purposes of financial
statements delivered by the Borrower hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency for purposes of the Credit Documents shall be such
Dollar Amount as so determined by the Administrative Agent.


 


(b)                                 Wherever
in this Credit Agreement, in connection with any Extension of Credit, any
conversion, continuation or prepayment of a Loan or any renewal of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed
in Dollars, but such Extension of Credit or Loan is denominated in a Foreign
Currency, such amount shall be the relevant Foreign Currency Equivalent of such
Dollar amount (rounded to the nearest 1,000 units of such Foreign
Currency), as determined by the Administrative Agent.


 


1.5                                 Redenomination of Certain Foreign Currencies and
Computation of Dollar Amounts.


 


(a)                                  Each
obligation of the Borrower to make a payment denominated in the National
Currency Unit of any member state of the European Union that adopts the Euro as
its lawful currency after the date hereof shall be redenominated into Euros 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 Credit
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 Extension
of Credit in the currency of such member state is outstanding immediately prior
to such date, such replacement shall take effect, with respect to such
Extension of Credit, at the end of the then current Interest Period.


 


(b)                                 Each
provision of this Credit 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.


 


23





















 


SECTION 2

CREDIT FACILITY


 


2.1                                 Revolving Loans.


 


(a)                                  Commitment.  During the Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make Loans in
Dollars (the “Revolving Loans”) to the Borrower from time to time in the
amount of such Lender’s Commitment Percentage of such Loans for the purposes
hereinafter set forth; provided that (i) with regard to the Lenders
collectively, the sum of the aggregate principal Dollar Amount of outstanding
Revolving Loans plus outstanding Swingline Loans plus LOC
Obligations plus outstanding Competitive Loans shall not exceed the
Aggregate Revolving Committed Amount, and (ii) with regard to each Lender
individually, the sum of the aggregate principal Dollar Amount of such Lender’s
Commitment Percentage of outstanding Revolving Loans plus such Lender’s
Revolving Commitment Percentage of Swingline Loans plus such Lender’s
LOC Commitment Percentage of LOC Obligations shall not exceed such Lender’s
Revolving Committed Amount.  Revolving
Loans may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a
combination thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof.


 


(b)                                 Revolving
Loan Borrowings.


 


(i)                                     Notice of
Borrowing.  The Borrower shall
request a Loan borrowing by written notice (or telephone notice promptly
confirmed in writing) to the Administrative Agent not later than 11:00 A.M. on
the Business Day of the requested borrowing in the case of Alternate Base Rate
Loans, and on the third Business Day prior to the date of the requested
borrowing in the case of LIBOR Rate Loans. 
Each such request for borrowing shall be irrevocable and shall specify
(A) that a Loan is requested, (B) the date of the requested borrowing (which
shall be a Business Day), (C) the aggregate principal amount to be borrowed,
and (D) whether the borrowing shall be comprised of Alternate Base Rate Loans,
LIBOR Rate Loans or a combination thereof, and if LIBOR Rate Loans are
requested, the Interest Period(s) therefor. 
If the Borrower shall fail to specify in any such Notice of Borrowing
(1) an applicable Interest Period in the case of a LIBOR Rate Loan, then such
notice shall be deemed to be a request for an Interest Period of one month, or
(2) the Type of Loan requested, then such notice shall be deemed to be a
request for a Alternate Base Rate Loan hereunder.  The Administrative Agent shall give notice to
each Lender, promptly upon receipt of each Notice of Borrowing pursuant to this
Section 2.1(b)(i), of the contents thereof and of each such Lender’s
share of any borrowing to be made pursuant thereto.


 


(ii)                                  Minimum Amounts.  Each Revolving Loan shall be in a minimum
aggregate principal amount of (A) in the
case of LIBOR Rate Loans, $2,000,000 and
integral multiples of $1,000,000 in excess thereof (or the remaining Aggregate
Revolving Committed Amount, if less) and (B)
in the case of Alternate Base Rate Loans, $1,000,000


 


24





















 


and integral multiples of $500,000 in excess
thereof (or the remaining Aggregate Revolving Committed Amount, if less).


 


(iii)                               Advances.  Each Lender will make its Commitment
Percentage of each Loan borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent specified in Section 10.2,
or at such office as the Administrative Agent may designate in writing, by 1:00
P.M. on the date specified in the applicable Notice of Borrowing in Dollars and
in funds immediately available to the Administrative Agent.  Such borrowing will then be made available to
the Borrower by the Administrative Agent by crediting the account designated by
the Borrower with the aggregate of the amounts made available to the Administrative
Agent by the Lenders and in like funds as received by the Administrative Agent.


 


(c)                                  Repayment.  The principal amount of all Loans shall be
due and payable in full on the Maturity Date.


 


(d)                                 Interest.  Subject to the provisions of Section 2.6:


 


(i)                                     Alternate Base
Rate Loans.  During such periods as
Loans shall be comprised in whole or in part of Alternate Base Rate Loans, such
Alternate Base Rate Loans shall bear interest at a per annum rate equal to the
Alternate Base Rate plus the Applicable Percentage;


 


(ii)                                  LIBOR Rate Loans.  During such periods as Loans shall be
comprised in whole or in part of LIBOR Rate Loans, such LIBOR Rate Loans shall
bear interest at a per annum rate equal to the LIBOR Rate plus the
Applicable Percentage.


 


Interest on Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).


 


(e)                                  Notes.  The Loans shall be further evidenced by a
duly executed Note in favor of each Lender in the form of Schedule 2.1(e)
attached hereto, if requested by such Lender.


 


2.2                                 Competitive Loan Subfacility.


 


(a)                                  Competitive
Loans. Subject to the terms and conditions hereof and in reliance upon the
representations and warranties set forth herein, the Borrower may, during the
Commitment Period, request and each Lender may, in its sole discretion, agree
to make, Competitive Loans to the Borrower; provided, however,
that (i) with regard to each Lender individually, the sum of such Lender’s
share of outstanding Revolving Loans plus such Lender’s Revolving
Commitment Percentage of Swingline Loans plus such Lender’s LOC
Commitment Percentage of LOC Obligations shall not exceed such Lender’s
Revolving Committed Amount, (ii) with regard to the Lenders collectively, the
sum of the aggregate amount of outstanding Revolving Loans plus
Swingline Loans plus LOC Obligations plus Competitive Loans shall
not exceed the Aggregate Revolving Committed Amount and (iii) with regard to
the Lenders collectively, the sum of the aggregate amount of outstanding
Competitive Loans shall not exceed 50% of the Aggregate


 


25





















 


Revolving Committed Amount.  Each
Competitive Loan shall be not less than $5,000,000 in the aggregate and
integral multiples of $1,000,000 in excess thereof (or the remaining portion of
the Revolving Committed Amount, if less).


 


(b)                                 Competitive
Bid Requests.  The Borrower may
solicit Competitive Bids by delivery of a Competitive Bid Request substantially
in the form of Schedule 2.2(b)-1 to the Administrative Agent by
12:00 noon on a Business Day not less than three (3) Business Days prior to the
date of a requested Competitive Loan borrowing. 
A Competitive Bid Request shall specify (i) the date of the requested
Competitive Loan borrowing (which shall be a Business Day), (ii) the amount of
the requested Competitive Loan borrowing and (iii) the applicable Interest
Periods requested.  The Administrative
Agent shall, promptly following its receipt of a Competitive Bid Request under
this subsection (b), notify the affected Lenders of its receipt and the
contents thereof and invite the Lenders to submit Competitive Bids in response
thereto.  A form of such notice is
provided in Schedule 2.2(b)-2. 
No more than  three (3)
Competitive Bid Requests (e.g., the Borrower may request Competitive Bids for
no more than three (3) different Interest Periods at a time) shall be
submitted at any one time and Competitive Bid Requests may be made no more
frequently than once every three (3) Business Days (unless the
Administrative Agent otherwise agrees).


 


(c)                                  Competitive
Bid Procedure.  Each Lender may, in
its sole discretion, make one or more Competitive Bids to the Borrower in
response to a Competitive Bid Request. 
Each Competitive Bid must be received by the Administrative Agent not
later than 10:00 A.M. on the Business Day next succeeding the date of receipt
by the Administrative Agent of the related Competitive Bid Request.  A Lender may offer to make all or part of the
requested Competitive Loan borrowing and may submit multiple Competitive Bids
in response to a Competitive Bid Request. 
The Competitive Bid shall specify (i) the particular Competitive Bid
Request as to which the Competitive Bid is submitted, (ii) the minimum (which
shall be not less than $1,000,000 and integral multiples of $500,000 in excess
thereof) and maximum principal amounts of the requested Competitive Loan or
Loans as to which the Lender is willing to make, and (iii) the applicable
interest rate or rates and Interest Period or Periods therefor.  A form of such Competitive Bid is provided in
Schedule 2.2(c).  A
Competitive Bid submitted by a Lender in accordance with the provisions hereof
shall be irrevocable.  The Administrative
Agent shall promptly (and in any event by no later than 11:00 A.M. on the
Business Day next succeeding the date of receipt by the Administrative Agent of
the related Competitive Bid Request) notify the Borrower of all Competitive
Bids made and the terms thereof.  The
Administrative Agent shall send a copy of each of the Competitive Bids to the
Borrower for its records as soon as practicable.


 


(d)                                 Submission
of Competitive Bids by Administrative Agent.  If the Administrative Agent, in its capacity
as a Lender, elects to submit a Competitive Bid in response to any Competitive
Bid Request, it shall submit such Competitive Bid directly to the Borrower
one-half of an hour earlier than the latest time at which the other Lenders are
required to submit their Competitive Bids to the Administrative Agent in
response to such Competitive Bid Request pursuant to subsection (c) above.


 


(e)                                  Acceptance
of Competitive Bids.  The Borrower
may, in its sole and absolute discretion, subject only to the provisions of
this subsection (e), accept or refuse any Competitive Bid offered to
it.  To accept a Competitive Bid, the
Borrower shall give written notification (or


 


26





















 


telephonic notice promptly confirmed in writing) substantially in the
form of Schedule 2.2(e) of its acceptance of any or all such
Competitive Bids to the Administrative Agent by 12:00 noon on the date on which
notice of election to make a Competitive Bid is to be given to the
Administrative Agent by the Lenders; provided, however, (i) the
failure by the Borrower to give timely notice of its acceptance of a
Competitive Bid shall be deemed to be a refusal thereof, (ii) the Borrower may
accept Competitive Bids only in ascending order of rates within each Interest
Period, (iii) the aggregate amount of Competitive Bids accepted by the
Borrower shall not exceed the principal amount specified in the Competitive Bid
Request, (iv) the Borrower may accept a portion of a Competitive Bid if, and to
the extent, acceptance of the entire amount thereof would cause the Borrower to
exceed the principal amount specified in the Competitive Bid Request, subject
however to the minimum amounts provided herein (and provided that where two or
more Lenders submit such a Competitive Bid at the same Competitive Bid Rate,
then pro rata between or among such Lenders) and (v) no bid shall be accepted for
a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $1,000,000 and integral multiples of $500,000 in excess thereof,
except that where a portion of a Competitive Bid is accepted in accordance with
the provisions of subsection (iv) hereof, then in a minimum principal
amount of $500,000 and integral multiples of $100,000 in excess thereof (but
not in any event less than the minimum amount specified in the Competitive
Bid), and in calculating the pro rata allocation of acceptances of portions of
multiple bids at a particular Competitive Bid Rate pursuant to subsection (iv)
hereof, the amounts shall be rounded to integral multiples of $100,000 in a
manner which shall be in the discretion of the Borrower.  A notice of acceptance of a Competitive Bid
given by the Borrower in accordance with the provisions hereof shall be
irrevocable.  The Administrative Agent
shall, not later than 1:00 P.M. on the date of receipt by the
Administrative Agent of a notification from the Borrower of its acceptance
and/or refusal of Competitive Bids, notify each affected Lender of its receipt
and the contents thereof, and each successful bidding Lender will thereupon
become bound, subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted.


 


(f)                                    Funding
of Competitive Loans.  Each Lender
which is to make a Competitive Loan shall make its Competitive Loan borrowing
available to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified in Schedule 10.2, or
at such other office as the Administrative Agent may designate in writing, by
2:00 P.M. on the date specified in the Competitive Bid Request in funds
immediately available to the Administrative Agent.  Such borrowing will then be made available to
the Borrower by crediting the account of the Borrower on the books of such
office with the aggregate of the amount made available to the Administrative
Agent by the applicable Competitive Loan Lenders and in like funds as received
by the Administrative Agent.


 


(g)                                 Maturity
of Competitive Loans.  Each
Competitive Loan shall mature and be due and payable in full on the last day of
the Interest Period applicable thereto, unless accelerated sooner pursuant to Section 7.2.  Unless the Borrower shall give notice to the
Administrative Agent otherwise, the Borrower shall be deemed to have requested
a Revolving Loan borrowing in the amount of the maturing Competitive Loan, the
proceeds of which will be used to repay such Competitive Loan.


 


27





















 


(h)                                 Interest
on Competitive Loans.  Subject to the
provisions of Section 2.6, Competitive Loans shall bear interest in
each case at the Competitive Bid Rate applicable thereto.  Interest on Competitive Loans shall be
payable in arrears on each Interest Payment Date.


 


(i)                                     Competitive
Loan Notes.  The Competitive Loans
made by each Lender shall be further evidenced by such Lender’s Revolving Note,
if a Revolving Note was requested by such Lender.


 


(j)                                     No
Additional Rights.  Nothing in this Section 2.2
shall be construed as a right of first offer in favor of any Lender or
otherwise limit the ability of the Borrower to request and accept credit
facilities from any Person (including any Lender) so long as no Default has
occurred and is continuing at the time of, or would otherwise arise as a result
of, the Borrower executing, delivering or performing under such credit
facilities.


 


2.3                                 Swingline Loan Subfacility.


 


(a)                                  Swingline
Commitment.  During the Commitment
Period, subject to the terms and conditions hereof, the Swingline Lender, in
its individual capacity, agrees to make certain revolving credit loans in
Dollars and in Foreign Currencies to the Borrower (each a “Swingline Loan”
and, collectively, the “Swingline Loans”) for the purposes hereinafter
set forth; provided, however, (i) the aggregate Dollar Amount of
Swingline Loans (determined as of the most recent Determination Date)
outstanding at any time shall not exceed TWENTY MILLION DOLLARS
($20,000,000) (the “Swingline Committed Amount”), and (ii)
the sum of the aggregate Dollar Amount (determined as of the most recent
Determination Date) of outstanding Revolving Loans plus Swingline Loans plus
LOC Obligations plus Competitive Loans shall not exceed the Aggregate
Revolving Committed Amount.  Swingline
Loans hereunder may be repaid and reborrowed in accordance with the provisions
hereof.


 


(b)                                 Swingline
Loan Borrowings.


 


(i)                                     Notice of
Borrowing and Disbursement.  Upon
receiving a Notice of Borrowing from the Borrower (A) not later than
12:00 noon on any Business Day requesting that a Swingline Loan be made in
Dollars, the Swingline Lender will make a Swingline Loan which is denominated
in Dollars available to the Borrower on the same Business Day and (B) not later
than 10:00 A.M. (London, England time) two Business Days prior to the date
that a Swingline Loan is requested to be made in a Foreign Currency, the
Swingline Lender will make a Swingline Loan which is denominated in the requested
Foreign Currency available to such Borrower on such date.  Swingline Loan borrowings hereunder shall be
made in minimum amounts of $100,000 and in integral amounts of $100,000 in
excess thereof.


 


(ii)                                  Repayment of
Swingline Loans.  Each Swingline Loan
borrowing shall be due and payable on the Maturity Date.  The Swingline Lender may, at any time, in its
sole discretion, by written notice to the Borrower and the Administrative
Agent, demand repayment of its Swingline Loans by way of a Revolving Loan
borrowing, in which case the Borrower shall be deemed to have requested a
Revolving Loan borrowing comprised


 


28





















 


entirely of Alternate Base Rate Loans in the
Dollar Amount of such Swingline Loans (each such Revolving Loan borrowing made
on account of any such deemed request therefor as provided herein being
hereinafter referred to as a “Mandatory Borrowing”); provided, however,
that, in the following circumstances, any such demand shall also be deemed to
have been given one Business Day prior to each of (A) the Maturity Date, (B)
the occurrence of any Event of Default described in Section 7.1(e),
(C) upon acceleration of the Credit Party Obligations hereunder, whether on
account of an Event of Default described in Section 7.1(e) or any
other Event of Default and (D) the exercise of remedies in accordance with the
provisions of Section 7.2 hereof; and provided, further,
that, notwithstanding the foregoing to the contrary, in the case of Swingline
Loans denominated in Foreign Currencies, the Swingline Lender shall be entitled
to demand such repayment only upon (A) the Maturity Date, (B) the occurrence of
any Event of Default, (C) acceleration of the Credit Party Obligations
hereunder and (D) the exercise of remedies in accordance with the provisions of
Section 7.2 hereof.  Each
Lender hereby irrevocably agrees to make such Revolving Loans promptly upon any
such request or deemed request on account of each Mandatory Borrowing in the
Dollar Amount and in the manner specified in the preceding sentence and on the
same such date notwithstanding (A) the amount of the Mandatory Borrowing
may not comply with the minimum amount for borrowings of Revolving Loans
otherwise required hereunder, (B) whether any conditions specified in Section 4.2
are then satisfied, (C) whether a Default or an Event of Default then exists,
(D) failure of any such request or deemed request for Revolving Loans to be
made by the time otherwise required in Section 2.1(b)(i), (E) the
date of such Mandatory Borrowing, or (F) any reduction in the Revolving
Committed Amount or termination of the Revolving Commitments immediately prior
to such Mandatory Borrowing or contemporaneously therewith.  If any Mandatory Borrowing cannot for any
reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower), then the outstanding Swingline
Loans denominated in Foreign Currencies shall be automatically converted on
such date to Swingline Loans in Dollars in an amount equal to the Dollar Amount
thereof as of such date and each Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Borrowing would otherwise have occurred,
but adjusted for any payments received from the Borrower on or after such date
and prior to such purchase) from the Swingline Lender such participations in
the outstanding Swingline Loans as shall be necessary to cause each such Lender
to share in such Swingline Loans ratably based upon its respective Revolving
Commitment Percentage (determined before giving effect to any termination of
the Commitments pursuant to Section 7.2), provided that (A)
all interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation is
purchased, and (B) at the time any purchase of participations pursuant to this
sentence is actually made, the purchasing Lender shall be required to pay to
the Swingline Lender interest on the principal Dollar Amount of such
participation purchased for each day from and including the day upon which the
Mandatory Borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the rate equal to, if paid within two (2)
Business Days of the date of the Mandatory Borrowing, the Federal Funds
Effective Rate, and thereafter at a rate equal to the Alternate Base Rate.


 


29





















 


(c)                                  Interest
on Swingline Loans.  Subject to the
provisions of Section 2.6, Swingline Loans that are denominated in
(i) Dollars shall bear interest at a per
annum rate equal to the Alternate Base Rate plus the Applicable
Percentage for Revolving Loans that are Alternate Base Rate Loans and (ii) Foreign Currencies shall bear interest at
the applicable one or three month LIBOR Rate (as specified in the Notice of
Borrowing for such Swingline Loan or in a Notice of Extension/Conversion
applicable to such Swingline Loan) plus the Applicable Percentage for
Revolving Loans that are LIBOR Rate Loans. 
Interest on Swingline Loans shall be payable in arrears on each Interest
Payment Date.


 


(d)                                 Swingline
Loan Extension/Continuations.  The
Interest Period for any Swingline Loan denominated in a Foreign Currency may be
extended or continued for an additional Interest Period of one month or three
months (and successive Interest Periods of one month or three months after the
expiration of any such Interest Period). 
Any such Swingline Loan may be extended or continued only if the
conditions in Section 4.2 have been satisfied, shall be subject to
the terms of the definition of “Interest Period” set forth in Section 1.1
and shall be in such minimum amounts as provided in Section 2.3(b)(i).  Each extension or continuation shall be
effected by the Borrower by giving a Notice of Extension/Conversion (or
telephone notice promptly confirmed in writing) to the Administrative Agent
prior to 10:00 A.M. (London, England time) two Business Days prior to the
last day of the current Interest Period for the applicable Swingline Loan,
specifying (i) the date of the proposed extension or continuation, (ii) the
applicable Swingline Loan for which the Interest Period is to be so extended or
continued, and (iii) the new Interest Period with respect thereto.  Each request for extension or continuation
shall be irrevocable and shall constitute a representation and warranty by the
Borrower of the matters specified in Section 4.2.  If the Borrower fails to request an extension
or continuation of any Interest Period for a Swingline Loan denominated in a
Foreign Currency in accordance with this Section 2.3, or any such
extension or continuation is not permitted or required by this Section 2.3,
then the Interest Period for such Swingline Loan shall be automatically
continued as a one month Interest Period at the end of the Interest Period then
applicable thereto.


 


(e)                                  Swingline
Note.  The Swingline Loans shall be
evidenced by a duly executed promissory note of the Borrower to the Swingline
Lender in the original amount of the Swingline Committed Amount and
substantially in the form of Schedule 2.3(e).


 


2.4                                 Letter of Credit Subfacility.


 


(a)                                  Issuance.  Subject to the terms and conditions hereof
and of the LOC Documents, if any, and any other terms and conditions which the
Issuing Lender may reasonably require, during the Commitment Period the Issuing
Lender shall issue, and the Lenders shall participate in, Letters of Credit for
the account of the Borrower from time to time upon request in a form reasonably
acceptable to the Issuing Lender; provided, however, that (i) the
aggregate amount of LOC Obligations shall not at any time exceed FIFTY MILLION DOLLARS ($50,000,000) (the “LOC Committed
Amount”), (ii) the sum of outstanding Revolving Loans plus Swingline
Loans plus LOC Obligations plus Competitive Loans shall not at
any time exceed the Aggregate Revolving Committed Amount, (iii) all Letters of
Credit shall be denominated in U.S. Dollars and (iv) Letters of Credit shall be
issued for lawful corporate purposes and may be issued as


 


30





















 


standby letters of credit, including in connection with workers’
compensation and other insurance programs, commercial
letters of credit and trade letters of credit. 
Except as otherwise expressly agreed upon by all the Lenders, no Letter
of Credit shall have an original expiry date more than twelve (12) months from
the date of issuance; provided, however, so long as no Default or
Event of Default has occurred and is continuing and subject to the other terms
and conditions to the issuance of Letters of Credit hereunder, the expiry dates
of Letters of Credit may be extended annually or periodically from time to time
on the request of the Borrower or by operation of the terms of the applicable
Letter of Credit to a date not more than twelve (12) months from the date
of extension; provided, further, that no Letter of Credit, as
originally issued or as extended, shall have an expiry date extending beyond
the date which is three (3) Business Days prior to the Maturity Date.  Each Letter of Credit shall comply with the
related LOC Documents.  The issuance and
expiry date of each Letter of Credit shall be a Business Day.  Any Letters of Credit issued hereunder shall
be in a minimum original face amount of $50,000 or such lesser amount as the
Issuing Lender may agree.  Wachovia shall
be the Issuing Lender on all Letters of Credit issued on or after the Closing
Date.


 


(b)                                 Notice
and Reports.  The request for the
issuance of a Letter of Credit shall be submitted to the Issuing Lender at
least three (3) Business Days prior to the requested date of
issuance.  The Issuing Lender will
promptly upon request provide to the Administrative Agent for dissemination to
the Lenders a detailed report specifying the Letters of Credit which are then
issued and outstanding and any activity with respect thereto which may have
occurred since the date of any prior report, and including therein, among other
things, the account party, the beneficiary, the face amount, expiry date as
well as any payments or expirations which may have occurred.  The Issuing Lender will further provide to
the Administrative Agent promptly upon request copies of the Letters of
Credit.  The Issuing Lender will provide
to the Administrative Agent promptly upon request a summary report of the
nature and extent of LOC Obligations then outstanding.


 


(c)                                  Participations.  Each Lender upon issuance of a Letter of
Credit shall be deemed to have purchased without recourse a risk participation
from the Issuing Lender in such Letter of Credit and the obligations arising
thereunder and any collateral relating thereto, if any, in each case in an
amount equal to its LOC Commitment Percentage of the obligations under such Letter
of Credit and shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and be obligated to pay to the Issuing
Lender therefor and discharge when due, its LOC Commitment Percentage of the
obligations arising under such Letter of Credit.  Without limiting the scope and nature of each
Lender’s participation in any Letter of Credit, to the extent that the Issuing
Lender has not been reimbursed as required hereunder or under any LOC Document,
each such Lender shall pay to the Issuing Lender its LOC Commitment Percentage
of such unreimbursed drawing in same day funds on the day of notification by
the Issuing Lender of an unreimbursed drawing pursuant to the provisions of subsection (d)
hereof.  The obligation of each Lender to
so reimburse the Issuing Lender shall be absolute and unconditional and shall
not be affected by the occurrence of a Default, an Event of Default or any
other occurrence or event.  Any such
reimbursement shall not relieve or otherwise impair the obligation of the
Borrower to reimburse the Issuing Lender under any Letter of Credit, together
with interest as hereinafter provided.


 


31





















 


(d)                                 Reimbursement.  Upon any drawing under any Letter of Credit,
the Issuing Lender will promptly notify the Borrower and the Administrative
Agent.  The Borrower shall reimburse the
Issuing Lender (with the proceeds of a Revolving Loan obtained hereunder or
otherwise) in same day funds as provided herein or in the LOC Documents on the
Business Day next succeeding the day such notice is received by the Borrower
from the Issuing Lender (the “LC Due Date”).  The unreimbursed amount of each drawing shall
bear interest at a per annum rate equal to the Alternate Base Rate plus the
Applicable Percentage; provided, however, such rate shall be
increased by two percent (2%) during each day that such reimbursement
obligation is past due.  Unless the
Borrower shall notify the Issuing Lender and the Administrative Agent by the LC
Due Date of its intent to otherwise reimburse the Issuing Lender, the Borrower
shall be deemed to have requested a Revolving Loan in the amount of the drawing
as provided in subsection (e) hereof, the proceeds of which will be used
to satisfy the reimbursement obligations. 
Such reimbursement obligations shall be deemed to be paid upon the
making of any such Revolving Loan.  The
Borrower’s reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of set-off,
counterclaim or defense to payment the Borrower may claim or have against the
Issuing Lender, the Administrative Agent, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without limitation
any defense based on any failure of the Borrower to receive consideration or
the legality, validity, regularity or unenforceability of the Letter of
Credit.  The Issuing Lender will promptly
notify the Lenders of the amount of any unreimbursed drawing and each Lender shall
promptly pay to the Administrative Agent for the account of the Issuing Lender
in Dollars and in immediately available funds, the amount of such Lender’s LOC
Commitment Percentage of such unreimbursed drawing.  Such payment shall be made on the day such
notice is received by such Lender from the Issuing Lender if such notice is
received at or before 2:00 P.M., otherwise such payment shall be made at or
before 12:00 noon on the Business Day next succeeding the day such notice is
received.  If such Lender does not pay
such amount to the Issuing Lender in full upon such request, such Lender shall,
on demand, pay to the Administrative Agent for the account of the Issuing
Lender interest on the unpaid amount during the period from the date of such
drawing until such Lender pays such amount to the Issuing Lender in full at a
rate per annum equal to, if paid within two (2) Business Days of the date of
drawing, the Federal Funds Rate and thereafter at a rate equal to the Alternate
Base Rate.  Each Lender’s obligation to
make such payment to the Issuing Lender, and the right of the Issuing Lender to
receive the same, shall be absolute and unconditional, shall not be affected by
any circumstance whatsoever and without regard to the termination of this
Credit Agreement or the Commitments hereunder, the existence of a Default or
Event of Default or the acceleration of the Credit Party Obligations hereunder
and shall be made without any offset, abatement, withholding or reduction
whatsoever.


 


(e)                                  Repayment
with Loans.  On any day on which the
Borrower shall have requested, or been deemed to have requested a Revolving
Loan to reimburse a drawing under a Letter of Credit, the Administrative Agent
shall give notice to the Lenders that a Revolving Loan has been requested or deemed
requested in connection with a drawing under a Letter of Credit, in which case
a Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans
(each such borrowing, a “Mandatory Borrowing”) shall be immediately made
(without giving effect to any termination of the Commitments pursuant to Section 7.2)
pro  rata based on each Lender’s respective Revolving Commitment
Percentage (determined before giving effect to any


 


32





















 


termination of the Commitments pursuant to Section 7.2) and
the proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. 
Each Lender hereby irrevocably agrees to make such Revolving Loans
immediately upon any such request or deemed request on account of each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the same such date notwithstanding (i) the amount of
Mandatory Borrowing may not comply with the minimum amount for borrowings of
Loans otherwise required hereunder, (ii) whether any conditions specified in Section 4.2
are then satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) failure for any such request or deemed request for a Revolving Loan to be
made by the time otherwise required in Section 2.1(b)(i), (v) the
date of such Mandatory Borrowing, or (vi) any reduction in the Aggregate
Revolving Committed Amount after any such Letter of Credit may have been drawn
upon.  If any Mandatory Borrowing cannot for
any reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code), then each such Lender hereby agrees that it shall forthwith
fund (as of the date the Mandatory Borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and
prior to such purchase) its Participation Interests in the LOC Obligations; provided,
further, that if any Lender shall fail to fund its Participation
Interest on the day the Mandatory Borrowing would otherwise have occurred, then
the amount of such Lender’s unfunded Participation Interest therein shall bear
interest payable by such Lender to the Issuing Lender upon demand, at the rate
equal to, if paid within two (2) Business Days of such date, the Federal Funds
Rate, and thereafter at a rate equal to the Alternate Base Rate.


 


(f)                                    Modification,
Extension.  The issuance of any
supplement, modification, amendment, renewal, or extension to any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.


 


(g)                                 Letter
of Credit Governing Law.  Unless
otherwise expressly agreed by the Issuing Lender and the Borrower when a Letter
of Credit is issued, (i) the rules of the “International Standby Practices
1998” published by the Institute of International Banking Law & Practice
(or such later version thereof as may be in effect at the time of issuance)
shall apply to each standby 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.


 


2.5                                 Additional Loans.


 


(a)                                  Subject
to the terms and conditions set forth herein, so long as no Default or Event of
Default shall have occurred and be continuing and the Aggregate Revolving
Committed Amount shall not have been reduced below $150,000,000 pursuant to Section 2.9(a),
the Borrower shall have the right from time to time during the period from the
Closing Date until the date one Business Day prior to the Maturity Date, to
incur additional Indebtedness under this Credit Agreement in the form of (a) one
or more increases to the Aggregate Revolving Committed Amount (the “Additional
Revolving Loans”) and/or (b) a term loan facility (the “Additional Term
Loan”; together with the Additional Revolving Loans the “Additional
Loans”), in an aggregate amount at any one time of up to $150,000,000.  The following terms and


 


33





















 


conditions shall apply:  (i) the aggregate amount of all Additional Loans
shall not at any one time exceed $150,000,000, (ii)
the terms and conditions of any Additional Term Loans shall be reasonably
satisfactory to the Administrative Agent and the Additional Loan Lenders (as
such term is defined below), (iii) the
loans made under any Additional Loan facilities shall constitute Credit Party
Obligations, (iv) any Additional
Revolving Loans shall have the same terms (including interest rate) as the
existing Revolving Loans, (v) any
Additional Term Loan will have the same Maturity Date as the Revolving Loans,
unless otherwise agreed by the Administrative Agent and the Additional Loan
Lenders providing such Additional Term Loan, (vi)
any Additional Loans shall be entitled to the same voting rights as the
existing Loans and shall be entitled to receive proceeds of prepayments on the
same basis as comparable Loans, (vii) any
Additional Loans shall be obtained from existing Lenders or from other banks,
financial institutions or investment funds, in each case in accordance with the
terms set forth below (such Persons being referred to herein as the “Additional
Loan Lenders”), (viii) each
Additional Loan shall be in a minimum principal amount of $10,000,000 and
integral multiples of $1,000,000 in excess thereof, (ix) the proceeds of any Additional Loans will be used to finance
capital expenditures and working capital and other general corporate purposes,
including Permitted Investments, (x) the
Borrower shall execute such promissory notes as are necessary and requested by
the Additional Loan Lenders to reflect the Additional Loans, (xi) the conditions to Extensions of Credit in Section 4.2
shall have been satisfied and (xii) the
Administrative Agent shall have received from the Borrower updated financial
projections and an officer’s certificate, in each case in form and substance
reasonably satisfactory to the Administrative Agent, demonstrating that, after
giving effect to any such Additional Loan, the Borrower will be in compliance
with the financial covenants set forth in Section 5.9.  Participation in any Additional Loans shall
be offered first to each of the existing Lenders on a pro rata basis, but none
of such Lenders shall have any obligation to provide all or any portion of any
such Additional Loans.  If the amount of
any Additional Loans requested by the Borrower shall exceed the commitments
which the existing Lenders are willing to provide with respect to such
Additional Loans, then the Borrower may invite other banks, financial
institutions and investment funds reasonably acceptable to the Administrative
Agent to join this Credit Agreement as Lenders hereunder for the portion of
such Additional Loans not taken by existing Lenders, provided that such
other banks, financial institutions and investment funds shall enter into such
joinder agreements to give effect thereto as the Administrative Agent and the
Borrower may reasonably request.  In the
case of Additional Revolving Loans, the existing Lenders shall make such
assignments (which assignments shall not be subject to the requirements set
forth in Section 10.6(c)) of the outstanding Revolving Loans and
Participation Interests to the Additional Loan Lenders providing any Additional
Revolving Loans so that, after giving effect to such assignments, each Lender
holding a Revolving Commitment (including such Additional Loan Lenders) will
hold Revolving Loans and Participation Interests equal to its Commitment
Percentage of all outstanding Revolving Loans and LOC Obligations.  Notwithstanding any provision of this Credit
Agreement to the contrary, the Administrative Agent is authorized (with the
consent of the Borrower and the Additional Loan Lenders), to enter into, on
behalf of all Lenders, any amendment, modification or supplement to this Credit
Agreement or any other Credit Document as may be necessary to incorporate the
terms of any Additional Loans.


 


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2.6                                 Default Rate.


 


Upon the occurrence, and during the
continuance, of an Event of Default, the principal of and, to the extent
permitted by law, interest on the Loans and any other amounts owing hereunder
or under the other Credit Documents shall, upon the election of the Required
Lenders (except with respect to an Event of Default occurring under Section 7.1(e),
in which case such interest rate increase shall be immediate) bear interest,
payable on demand, at a per annum rate 2% greater than the interest rate which
would otherwise be applicable (or if no rate is applicable, whether in respect
of interest, fees or other amounts, then 2% greater than the Alternate Base
Rate plus the Applicable Percentage).


 


2.7                                 Extension and Conversion.


 


The Borrower shall have the option, on any
Business Day, to extend existing Loans into a subsequent permissible Interest
Period or to convert Loans into Loans of another Type; provided, however,
that (a) except as expressly provided otherwise in this Credit Agreement, LIBOR
Rate Loans may be converted into Alternate Base Rate Loans only on the last day
of the Interest Period applicable thereto, (b) LIBOR Rate Loans may be
extended, and Alternate Base Rate Loans may be converted into LIBOR Rate Loans,
only if the conditions in Section 4.2 have been satisfied and (c)
Loans extended as, or converted into, LIBOR Rate Loans shall be subject to the
terms of the definition of “Interest Period” set forth in Section 1.1
and shall be in such minimum amounts as provided in Section 2.1(b)(ii).  Any request for extension or conversion of a
LIBOR Rate Loan which shall fail to specify an Interest Period shall be deemed
to be a request for an Interest Period of one month.  Each such extension or conversion shall be
effected by the Borrower by giving a Notice of Extension/Conversion (or
telephone notice promptly confirmed in writing) to the Administrative Agent
prior to 11:00 A.M. on the Business Day of, in the case of the conversion
of a LIBOR Rate Loan into a Alternate Base Rate Loan, and on the third Business
Day prior to, in the case of the extension of a LIBOR Rate Loan as, or
conversion of a Alternate Base Rate Loan into, a LIBOR Rate Loan, the date of
the proposed extension or conversion, specifying (i) the date of the proposed
extension or conversion, (ii) the Loans to be so extended or converted, (iii)
the Types of Loans into which such Loans are to be converted and (iv) if
applicable, the applicable Interest Periods with respect thereto.  Each request for extension or conversion
shall be irrevocable and shall constitute a representation and warranty by the
Borrower of the matters specified in Section 4.2.  If the Borrower fails to request extension or
conversion of any LIBOR Rate Loan in accordance with this Section, or any such
conversion or extension is not permitted or required by this Section, then such
LIBOR Rate Loan shall be converted to an Alternate Base Rate Loan at the end of
the Interest Period applicable thereto. 
The Administrative Agent shall give each Lender notice as promptly as
practicable of any such proposed extension or conversion affecting any Loan.


 


2.8                                 Prepayments.


 


(a)                                  Voluntary
Repayments.  Revolving Loans,
Swingline Loans and, with the consent of the applicable Competitive Loan Lender
or Lenders, Competitive Loans, may be repaid in whole or in part without
premium or penalty; provided that (i) LIBOR Rate Loans may be repaid
only upon three (3) Business Days’ prior written notice to the Administrative
Agent, and


 


35





















 


Alternate Base Rate Loans may be repaid only upon at least one (1)
Business Day’s prior written notice to the Administrative Agent, (ii)
repayments of LIBOR Rate Loans must be accompanied by payment of any amounts
owing under Section 2.17, and (iii) partial repayments of the
LIBOR Rate Loans shall be in minimum principal amount of $2,000,000, and in
integral multiples of $1,000,000 in excess thereof (or, if less, the remaining
amount thereof) and partial repayments of Alternate Base Rate Loans shall be in
minimum principal amount of $1,000,000, and in integral multiples of $500,000
in excess thereof (or, if less, the remaining amount thereof).


 


(b)                                 Mandatory
Prepayments.  If at any time, the
aggregate principal Dollar Amount (determined, with respect to Foreign Currency
Loans, as of the most recent Determination Date) of outstanding Revolving Loans
plus Swingline Loans plus LOC Obligations plus Competitive
Loans shall exceed the Aggregate Revolving Committed Amount, the Borrower shall
immediately make payment on the Loans in an amount sufficient to eliminate the
deficiency; provided, however, that, notwithstanding the
foregoing to the contrary, if the amount of such excess has been incurred as a
result of exchange rate fluctuations in the Dollar Amount of the Swingline
Loans denominated in Foreign Currencies and such excess is not greater than ten
percent (10%) of the Swingline Committed Amount, then the Borrower shall not be
required to repay such excess until thirty (30) days after the incurrence of
such excess, and then only to the extent, if any, of such excess on the date
such payment is due.


 


(c)                                  Application.  Unless otherwise specified by the Borrower,
voluntary repayments and mandatory prepayments made hereunder shall be applied first
to Alternate Base Rate Loans, then to LIBOR Rate Loans in direct order of
Interest Period maturities, second to Competitive Loans in direct order
of Interest Period Maturities and third (after all Loans have been
repaid) to a cash collateral account in respect of LOC Obligations.  Amounts repaid on the Swingline Loan and the
Revolving Loans may be reborrowed in accordance with the provisions hereof.


 


(d)                                 Hedging
Obligations Unaffected.  Any
repayment or prepayment made pursuant to this Section 2.8 shall not
affect the Borrower’s obligation to continue to make payments under any Hedging
Agreement with a Hedging Agreement Provider, which shall remain in full force
and effect notwithstanding such repayment or prepayment, subject to the terms
of such Hedging Agreement.


 


2.9                                 Termination and Reduction of Commitments


 


(a)                                  Voluntary
Reductions.  The Commitments may be
terminated or permanently reduced by the Borrower in whole or in part upon one
(1) Business Day’s prior written notice to the Administrative Agent; provided
that (i) after giving effect to any voluntary reduction, the aggregate
principal amount of Loans plus LOC Obligations outstanding shall not exceed the
Aggregate Revolving Committed Amount, as reduced, and (ii) partial reductions
shall be in minimum principal amounts of $3,000,000, and in integral multiples
of $1,000,000 in excess thereof; provided further, that no such reduction or
termination shall be permitted if after giving effect thereto, and to any
prepayments of the Revolving Loans made on the effective date thereof, the sum
of the then outstanding aggregate principal amount of the Revolving Loans plus
Swingline Loans plus LOC Obligations plus Competitive Loans would exceed the
Aggregate Revolving Committed Amount.; and provided further, that with respect
to the portion of the


 


36





















 


Commitments comprising Additional Revolving Loans, only one such
reduction shall be permitted to be made in any calendar year.  Notwithstanding the foregoing to the
contrary, so long as the Aggregate Revolving Committed Amount shall not have
been previously reduced below $150,000,000 pursuant to this Section 2.9(a),
then the portion of the Commitments comprising Additional Revolving Loans, if
reduced in whole or in part pursuant to this Section 2.9(a), may be
reinstated from time to time in the form of new Additional Revolving Loans to
the extent then permitted to be made under Section 2.5 hereof.


 


(b)                                 Mandatory
Reduction.  The Revolving Commitment,
the LOC Commitment and the Swingline Commitment shall automatically terminate
on the Maturity Date.


 


2.10                           Fees.


 


(a)                                  Facility
Fee.  The Borrower shall pay to the
Administrative Agent for the ratable benefit of the Lenders holding
Commitments, a facility fee (the “Facility Fee”) equal to the Applicable
Percentage per annum times the actual daily amount of Aggregate
Revolving Committed Amount (or, if the Commitments have terminated, on the
outstanding amount of all Revolving 
Loans, Swingline Loans and LOC Obligations), regardless of usage.  The Facility Fee shall accrue at all times
during the Commitment Period (and thereafter so long as any Revolving Loans,
Swingline Loans or LOC Obligations remain outstanding), including at any time
during which one or more of the conditions in Section 4 is not met,
and shall be due and payable quarterly in arrears on the 15th day following the
last day of each calendar quarter for the prior calendar quarter, 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 Percentage
during any quarter, the actual daily amount shall be computed and multiplied by
the Applicable Percentage separately for each period during such quarter that
such Applicable Percentage was in effect.


 


(b)                                 Letter
of Credit Fee.  In consideration of
the LOC Commitments, the Borrower agrees to pay to the Issuing Lender a fee
(the “Letter of Credit Fee”) equal to the Applicable Percentage per
annum on the average daily maximum amount available to be drawn under each
Letter of Credit from the date of issuance to the date of expiration. The
Issuing Lender shall promptly pay over to the Administrative Agent for the
ratable benefit of the Lenders (including the Issuing Lender) the Letter of
Credit Fee.  The Letter of Credit Fee
shall be payable quarterly in arrears on the 15th day following the last day of
each calendar quarter for the prior calendar quarter.


 


(c)                                  Issuing
Lender Fees.  In addition to the
Letter of Credit Fees payable pursuant to subsection (b) above, the
Borrower shall pay to the Issuing Lender for its own account without sharing by
the other Lenders (i) a fronting fee of
one-tenth of one percent (0.100%) per annum on the average daily maximum amount
available to be drawn under each such Letter of Credit issued by it, such fee
to be paid quarterly in arrears on the 15th day following the last day of each
calendar quarter for the prior calendar quarter, and (ii) the reasonable and customary charges from time to time of the
Issuing Lender with respect to the amendment, transfer, administration,
cancellation and conversion of, and drawings under, such Letters of Credit (collectively,
the “Issuing Lender Fees”).


 


37





















 


(d)                                 Administrative
Agent’s Fee.  The Borrower agrees to
pay to the Administrative Agent the annual administrative agent fee as
described in the Fee Letter.


 


2.11                           Computation of Interest and Fees.


 


(a)                                  Interest
payable hereunder with respect to Alternate Base Rate Loans based on the Prime
Rate shall be calculated on the basis of a year of 365 days (or 366 days, as
applicable) for the actual days elapsed. 
All other fees, interest and all other amounts payable hereunder shall
be calculated on the basis of a 360 day year for the actual days
elapsed.  The Administrative Agent shall
as soon as practicable notify the Borrower and the Lenders of each
determination of a LIBOR Rate on the Business Day of the determination
thereof.  Any change in the interest rate
on a Loan resulting from a change in the Alternate Base Rate shall become
effective as of the opening of business on the day on which such change in the
Alternate Base Rate shall become effective. 
The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each such
change.


 


(b)                                 Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Credit Agreement shall be conclusive and binding on the
Borrower and the Lenders in the absence of manifest error.  The Administrative Agent shall, at the
request of the Borrower, deliver to the Borrower a statement showing the
computations used by the Administrative Agent in determining any interest rate.


 


2.12                           Pro Rata Treatment and Payments.


 


(a)                                  Each
borrowing of Loans and any reduction of the Commitments shall be made pro
rata according to the respective Commitment Percentages of the
Lenders.  Each payment under this Credit
Agreement or any Note shall be applied (i)
first, to any Fees then due and owing, (ii) second,
to interest then due and owing in respect of the Loans to the Borrower and (iii) third, to principal then due
and owing hereunder and under the Loans to the Borrower.  Each payment on account of the Facility Fees
or the Letter of Credit Fees shall be made pro  rata in accordance
with the respective amounts due and owing. 
Each payment (other than voluntary repayments and mandatory prepayments)
by the Borrower on account of principal of and interest on the Loans shall be
made pro  rata according to the respective amounts due and owing
hereunder in the currency in which such amount is denominated and in such funds
as are customary at the place and time of payment for the settlement of
international payments in such currency. 
Without limiting the terms of the preceding sentence, accrued interest
on any Foreign Currency Loans shall be payable in the same Foreign Currency as
such Loan.  Each voluntary repayment and
mandatory prepayment on account of principal of the Loans shall be applied in
accordance with Section 2.8. 
With respect to Competitive Loans, if the Borrower fails to specify the
particular Competitive Loan or Loans as to which any payment or other amount
should be applied and it is not otherwise clear as to the particular
Competitive Loan or Loans to which such payment or other amounts relate, or any
such payment or other amount is to be applied to Competitive Loans without
regard to any such direction by the Borrower, then each payment or prepayment
of principal on Competitive Loans and each payment of interest or other amount
on or in respect of Competitive Loans, shall be allocated pro rata among the relevant
Competitive Loan


 


38





















 


Lenders in accordance with the then outstanding amounts of their
respective Competitive Loans.  All
payments (including prepayments) to be made by the Borrower on account of
principal, interest and fees shall be made without defense, set-off or
counterclaim (except as provided in Section 2.18(b)) and shall be
made to the Administrative Agent for the account of the Lenders at the
Administrative Agent’s office specified in Section 10.2 in
immediately available funds (or at such other location mutually agreed to by
the Administrative Agent and the Borrower with respect to Foreign Currency
Loans) and (A) in the case of Loans or other amounts denominated in
Dollars, shall be made in Dollars not later than 1:00 P.M. on the date
when due and (B) in the case of Loans or other amounts denominated in a
Foreign Currency, shall be made in such Foreign Currency not later than the
Applicable Time specified by the Administrative Agent on the date when
due.  The Administrative Agent shall
distribute such payments to the Lenders entitled thereto promptly upon receipt
in like funds as received.  If any
payment hereunder (other than payments on the LIBOR Rate Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.  If any payment on a LIBOR
Rate Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.


 


(b)                                 Allocation
of Payments After Event of Default. 
Notwithstanding any other provision of this Credit Agreement to the
contrary, after the occurrence and during the continuance of an Event of Default,
all amounts collected or received by the Administrative Agent or any Lender on
account of the Credit Party Obligations or any other amounts outstanding under
any of the Credit Documents shall be paid over or delivered as follows:


 


FIRST, to the
payment of all reasonable out-of-pocket costs and expenses (including without
limitation reasonable attorneys’ fees) of the Administrative Agent in
connection with enforcing the rights of the Lenders under the Credit Documents;


 


SECOND, to
payment of any fees owed to the Administrative Agent;


 


THIRD, to the
payment of all reasonable out-of-pocket costs and expenses (including without
limitation, reasonable attorneys’ fees) of each of the Lenders in connection
with enforcing its rights under the Credit Documents or otherwise with respect
to the Credit Party Obligations owing to such Lender;


 


FOURTH, to the
payment of all of the Credit Party Obligations consisting of accrued fees and
interest (including, without limitation, accrued fees and interest arising
under any Hedging Agreement with a Hedging Agreement Provider;


 


FIFTH, to the
payment of the outstanding principal amount of the Credit Party Obligations
(including, without limitation, the payment or
cash collateralization of the outstanding
LOC Obligations, and including with respect to any Hedging Agreement with a
Hedging Agreement Provider, any breakage, termination or other payments due


 


39





















 


under such
Hedging Agreement with a Hedging Agreement Provider and
any interest accrued thereon);


 


SIXTH, to all
other Credit Party Obligations and other obligations which shall have become
due and payable under the Credit Documents or otherwise and not repaid pursuant
to clauses “FIRST” through “FIFTH” above; and


 


SEVENTH, to
the payment of the surplus, if any, to whoever may be lawfully entitled to
receive such surplus.


 


In carrying out the foregoing, (i) amounts
received shall be applied in the numerical order provided until exhausted prior
to application to the next succeeding category and (ii) each of the Lenders
and/or Hedging Agreement Providers shall receive an amount equal to its pro
rata share (based on the proportion that the then outstanding Loans and LOC
Obligations held by such Lender or the outstanding obligations payable to such
Hedging Agreement Provider bears to the aggregate then outstanding Loans, LOC
Obligations and obligations payable under all Hedging Agreements with a Hedging
Agreement Provider) of amounts available to be applied pursuant to clauses “THIRD”,
“FOURTH”, “FIFTH” and “SIXTH” above.


 


2.13                           Non-Receipt of Funds by the Administrative Agent.


 


(a)                                  Unless
the Administrative Agent shall have been notified in writing by a Lender prior
to the date a Loan is to be made by such Lender (which notice shall be
effective upon receipt) that such Lender does not intend to make the proceeds
of such Loan available to the Administrative Agent, the Administrative Agent
may assume that such Lender has made such proceeds available to the
Administrative Agent on such date, and the Administrative Agent may in reliance
upon such assumption (but shall not be required to) make available to the
Borrower a corresponding amount.  If such
corresponding amount is not in fact made available to the Administrative Agent,
the Administrative Agent shall be able to recover such corresponding amount
from such Lender.  If such Lender does
not pay such corresponding amount forthwith upon the Administrative Agent’s
demand therefor, the Administrative Agent will promptly notify the Borrower,
and the Borrower shall immediately pay such corresponding amount to the
Administrative Agent.  The Administrative
Agent shall also be entitled to recover from the Lender or the Borrower, as the
case may be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the Administrative
Agent to the Borrower to the date such corresponding amount is recovered by the
Administrative Agent at a per annum rate equal to (i) from the Borrower at the applicable
rate for the applicable borrowing pursuant to the Notice of Borrowing and (ii)
from a Lender at the Federal Funds Rate.


 


(b)                                 Unless
the Administrative Agent shall have been notified in writing by the Borrower,
prior to the date on which any payment is due from it hereunder (which notice
shall be effective upon receipt) that the Borrower does not intend to make such
payment, the Administrative Agent may assume that such Borrower has made such
payment when due, and the Administrative Agent may in reliance upon such
assumption (but shall not be required to) make available to each Lender on such
payment date an amount equal to the portion of such


 


40





















 


assumed payment to which such Lender is entitled hereunder, and if the
Borrower has not in fact made such payment to the Administrative Agent, such
Lender shall, on demand, repay to the Administrative Agent the amount made
available to such Lender.  If such amount
is repaid to the Administrative Agent on a date after the date such amount was
made available to such Lender, such Lender shall pay to the Administrative
Agent on demand interest on such amount in respect of each day from the date
such amount was made available by the Administrative Agent at a per annum rate
equal to, if repaid to the Administrative Agent within two (2) days from the
date such amount was made available by the Administrative Agent, the Federal
Funds Rate and thereafter at a rate equal to the Alternate Base Rate.


 


(c)                                  A
certificate of the Administrative Agent submitted to the Borrower or any Lender
with respect to any amount owing under this Section 2.13 shall be
conclusive in the absence of manifest error.


 


2.14                           Inability to Determine Interest Rate.


 


Notwithstanding any other provision of this
Credit Agreement, if (a) the Administrative Agent shall reasonably determine
(which determination shall be conclusive and binding absent manifest error)
that, by reason of circumstances affecting the relevant market, reasonable and
adequate means do not exist for ascertaining LIBOR for such Interest Period, or
(b) the Required Lenders shall reasonably determine (which determination shall
be conclusive and binding absent manifest error) that the LIBOR Rate does not
adequately and fairly reflect the cost to such Lenders of funding LIBOR Rate
Loans that the Borrower has requested be outstanding as a LIBOR tranche during
such Interest Period, the Administrative Agent shall forthwith give telephone
notice of such determination, confirmed in writing, to the Borrower, and the
Lenders at least two Business Days prior to the first day of such Interest
Period.  If such notice is given
(a) any Foreign Currency Loans requested to be made on the first day of
such Interest Period shall be made, at the sole option of the Borrower, in
Dollars as Alternate Base Rate Loans or such request shall be cancelled,
(b) any affected LIBOR Rate Loans requested to be made on the first day of
such Interest Period shall be made, at the sole option of the Borrower, in
Dollars as Alternate Base Rate Loans or such request shall be cancelled and
(c) any affected Loans that were to have been converted on the first day
of such Interest Period to or continued as LIBOR Rate Loans shall be converted
to or continued, at the sole option of the Borrower, in Dollars as Alternate
Base Rate Loans or such request shall be cancelled.  Until any such notice has been withdrawn by
the Administrative Agent, no further Loans shall be made as, continued as, or
converted into, LIBOR Rate Loans for the Interest Periods so affected.  The Administrative Agent shall withdraw any
notice given pursuant to this Section at such time as the condition giving
rise to such notice is reasonably determined by the Administrative Agent to no
longer be applicable.


 


2.15                           Illegality.


 


(a)                                  Notwithstanding
any other provision of this Credit Agreement, if (i) the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof by the relevant Governmental Authority to any Lender shall make it unlawful
for such Lender or its LIBOR Lending Office to make or maintain LIBOR Rate
Loans as contemplated by this Credit


 


41





















 


Agreement or to obtain in the interbank eurodollar market through its
LIBOR Lending Office the funds with which to make such Loans, or
(ii) there shall have occurred any change in national or international
financial, political or economic conditions (including the imposition of or any
change in exchange controls) or currency exchange rates which would make it
unlawful or impossible for any Lender to make Loans denominated in any Foreign
Currency to the Borrower, as contemplated by this Credit Agreement, then such
Lender shall be an “Affected Lender” and by written notice to the
Borrower and to the Administrative Agent:


 


(i)                                     such Lender may
declare that LIBOR Rate Loans (in the affected currency or currencies) will not
thereafter (for the duration of such unlawfulness or impossibility) be made by
such Lender hereunder, whereupon any request for a LIBOR Rate Loan (in the
affected currency or currencies) shall, as to such Lender only (A) if such Loan
is not a Foreign Currency Loan, be deemed a request for a Alternate Base Rate
Loan (unless it should also be illegal for the Affected Lender to provide an
Alternate Base Rate Loan, in which case such Loan shall bear interest at a
commensurate rate to be agreed upon by the Administrative Agent and the
Affected Lender, and so long as no Event of Default shall have occurred and be
continuing, the Borrower), unless such declaration shall be subsequently
withdrawn and (B) if such Loan is a Foreign Currency Loan, be deemed to have
been withdrawn, unless such declaration shall be subsequently withdrawn; and


 


(ii)                                  such Lender may
require that all outstanding LIBOR Rate Loans or Foreign Currency Loans (in the
affected currency or currencies), as the case may be, made by it be (A) if
such Loans are not Foreign Currency Loans, converted to Alternate Base Rate
Loans, in which event all such LIBOR Rate Loans shall be automatically
converted to Alternate Base Rate Loans as of the effective date of such notice
as provided in paragraph (b) below or (B) if such Loans are Foreign
Currency Loans, repaid immediately, in which event all such Foreign Currency Loans
(in the affected currency or currencies) shall be required to be repaid in full
by the Borrower as of the effective date of such notice as provided in
paragraph (b) below.


 


If any Lender shall exercise its rights
under (i) or (ii) above with respect to any Loans which are not
Foreign Currency Loans, all payments and prepayments of principal which would
otherwise have been applied to repay the LIBOR Rate Loans that would have been
made by such Lender or the converted LIBOR Rate Loans of such Lender shall
instead be applied to repay the Alternate Base Rate Loans made by such Lender
in lieu of, or resulting from the conversion, of such LIBOR Rate Loans.  An Affected Lender shall withdraw any notice
given pursuant to this Section at such time as the condition giving rise
to such notice is reasonably determined by such Affected Lender to no longer be
applicable.


 


(b)                                 Each
Lender agrees to use reasonable efforts (including reasonable efforts to change
its LIBOR Lending Office, as the case may be) to avoid or to minimize any
amounts which might otherwise be payable pursuant to this Section 2.15;
provided, however, that such


 


42





















 


efforts shall not cause the imposition on such Lender of any additional
costs or legal or regulatory burdens deemed by such Lender in its sole
discretion to be material.


 


(c)                                  For
purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each such Loan, if lawful, on the last day of
the Interest Period currently applicable to such Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.


 


2.16                           Requirements of Law.


 


(a)                                  If
the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:


 


(i)                                     shall subject such
Lender to any tax of any kind whatsoever with respect to any LIBOR Rate Loan
made by it, or change the basis of taxation of payments to such Lender in
respect thereof (except for both Taxes and changes in the rate of tax on the
overall net income or profits of such Lender, or franchise taxes in lieu thereof);


 


(ii)                                  shall impose, modify
or hold applicable any reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not otherwise
included in the determination of the LIBOR Rate hereunder; or


 


(iii)                               shall impose on such
Lender any other condition;


 


and the result of any of the foregoing is to increase the cost to such
Lender of making or maintaining LIBOR Rate Loans or to reduce any amount
receivable hereunder or under any Note, then, in any such case, the Borrower
shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such additional cost or reduced amount
receivable which such Lender reasonably deems to be material as determined by
such Lender with respect to its LIBOR Rate Loans; provided, however,
the Borrower shall not be obligated to compensate such Lender for such
additional cost or reduced amount receivable for any period more than 180 days
prior to the date the Borrower receives a certificate submitted by such Lender,
through the Administrative Agent, to the Borrower setting forth the amounts claimed
pursuant to this Section by such Lender. 
A certificate as to any additional amounts payable pursuant to this Section submitted
by such Lender, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error.  Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its LIBOR Lending Office, as the case
may be) to avoid or to minimize any amounts which might otherwise be payable
pursuant to this paragraph of this Section; provided, however,
that such efforts shall not cause the imposition on such Lender of any
additional costs or legal or regulatory burdens deemed by such Lender in its
sole discretion to be material.


 


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(b)                                 If
any Lender shall have reasonably determined that the adoption of or any change
in any Requirement of Law regarding capital adequacy or in the interpretation
or application thereof or compliance by such Lender or any corporation
controlling such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) from any central bank or
Governmental Authority made subsequent to the date hereof does or shall have
the effect of reducing the rate of return on such Lender’s or such corporation’s
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Lender’s or such
corporation’s policies with respect to capital adequacy) by an amount
reasonably deemed by such Lender in its sole discretion to be material, then
from time to time, within fifteen (15) days after demand by such Lender, the
Borrower shall pay to such Lender such additional amount as shall be certified
by such Lender as being required to compensate it for such reduction; provided,
however, the Borrower shall not be obligated to compensate such Lender
for such additional amount for any period more than 180 days prior to the date
the Borrower receives a certificate submitted by such Lender, through the
Administrative Agent, to the Borrower setting forth the amounts claimed
pursuant to this Section by such Lender. 
Such a certificate as to any additional amounts payable under this Section submitted
by a Lender (which certificate shall include a description of the basis for the
computation), through the Administrative Agent, to the Borrower shall be
conclusive absent manifest error.


 


(c)                                  The
agreements in this Section 2.16 shall survive the termination of
this Credit Agreement and payment of the Loans and all other amounts payable
hereunder.


 


2.17                           Indemnity.


 


The Borrower hereby agrees to indemnify each
Lender and to hold such Lender harmless from any funding loss or expense (but excluding
any loss of anticipated profits) which such Lender may sustain or incur as a
consequence of (a) default by the Borrower in payment of the principal amount
of or interest on any LIBOR Rate Loan by such Lender in accordance with the
terms hereof, (b) default by the Borrower in accepting a LIBOR Rate Loan
borrowing after the Borrower has given a notice in accordance with the terms
hereof, (c) default by the Borrower in making any repayment of a LIBOR Rate
Loan after the Borrower has given a notice in accordance with the terms hereof,
and/or (d) the making by the Borrower of a repayment or prepayment of a LIBOR
Rate Loan, or the conversion thereof, on a day which is not the last day of the
Interest Period with respect thereto, in each case including, but not limited
to, any such loss or expense (but excluding any loss of anticipated profits)
arising from interest or fees payable by such Lender to lenders of funds
obtained by it in order to maintain its LIBOR Rate Loans hereunder.  A certificate as to any additional amounts
payable pursuant to this Section submitted by any Lender, through the
Administrative Agent, to the Borrower (which certificate must be delivered to
the Administrative Agent within thirty days following such default, repayment,
prepayment or conversion) shall be conclusive in the absence of manifest
error.  The agreements in this Section 2.17
shall survive termination of this Credit Agreement and payment of the Loans and
all other amounts payable hereunder.


 


44





















 


2.18                           Taxes.


 


(a)                                  All
payments made by the Borrower hereunder or under any Note will be, except as
provided in Section 2.18(b), made free and clear of, and without
deduction or withholding for, any present or future taxes, levies, imposts,
duties, fees, assessments or other charges of whatever nature now or hereafter
imposed by any Governmental Authority or by any political subdivision or taxing
authority thereof or therein with respect to such payments (but excluding any
tax imposed on or measured by the net income or profits of a Lender, or
franchise taxes in lieu thereof, 
pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office of such
Lender is located or any subdivision thereof or therein) and all interest,
penalties or similar liabilities with respect thereto (all such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as “Taxes”). 
If any Taxes are so levied or imposed, the Borrower agrees to pay the
full amount of such Taxes, and such additional amounts as may be necessary so
that every payment of all amounts due under this Credit Agreement or under any
Note, after withholding or deduction for or on account of any Taxes, will not
be less than the amount provided for herein or in such Note.  The Borrower will furnish to the
Administrative Agent as soon as reasonably practicable after the date the payment
of any Taxes is due pursuant to applicable law certified copies (to the extent
reasonably available and required by law) of tax receipts evidencing such
payment by the Borrower.  The Borrower
agrees to indemnify and hold harmless each Lender, and reimburse such Lender
upon its written request, for the amount of any Taxes so levied or imposed and
paid by such Lender.


 


(b)                                 Each
Lender that is not a United States person (as such term is defined in Section 7701(a)(30)
of the Code) agrees to deliver to the Borrower and the Administrative Agent on
or prior to the Closing Date, or in the case of a Lender that is an assignee or
transferee of an interest under this Credit Agreement pursuant to Section 10.6
(unless the respective Lender was already a Lender hereunder immediately prior
to such assignment or transfer), on the date of such assignment or transfer to
such Lender, (i) if the Lender is a “bank” within the meaning of Section 881(c)(3)(A)
of the Code, two accurate and complete original signed copies of Internal
Revenue Service Form W-8BEN or W-8ECI (or successor forms) certifying such
Lender’s entitlement to a complete exemption from United States withholding tax
with respect to payments to be made under this Credit Agreement and under any
Note, or (ii) if the Lender is not a “bank” within the meaning of Section 881(c)(3)(A)
of the Code, either Internal Revenue Service Form W-8BEN or W-8ECI as set forth
in clause (i) above, or (x) a certificate substantially in the form of Schedule 2.18
(any such certificate, a “2.18 Certificate”) and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying such Lender’s entitlement to an exemption from
United States withholding tax with respect to payments of interest to be made
under this Credit Agreement and under any Note. 
In addition, each Lender agrees that it will deliver upon the Borrower’s
request updated versions of the foregoing, as applicable, whenever the previous
certification has become obsolete or inaccurate in any material respect, together
with such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Credit Agreement and
any Note.  Notwithstanding anything to
the contrary contained in Section 2.18(a), but subject to the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to


 


45





















 


do so by law, to deduct or withhold Taxes imposed by the United States
(or any political subdivision or taxing authority thereof or therein) from
interest, fees or other amounts payable hereunder for the account of any Lender
which is not a United States person (as such term is defined in Section 7701(a)(30)
of the Code) for U.S. Federal income tax purposes to the extent that such
Lender has not provided to the Borrower U.S. Internal Revenue Service Forms
that establish a complete exemption from such deduction or withholding and (y)
the Borrower shall not be obligated pursuant to Section 2.18(a)
hereof to gross-up payments to be made to a Lender in respect of Taxes imposed
by the United States if (I) such Lender has not provided to the Borrower the
Internal Revenue Service Forms required to be provided to the Borrower pursuant
to this Section 2.18(b) or (II) in the case of a payment, other
than interest, to a Lender described in clause (ii) above, to the extent that
such Forms do not establish a complete exemption from withholding of such
Taxes.  Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section 2.18,
the Borrower agrees to pay additional amounts and to indemnify each Lender in
the manner set forth in Section 2.18(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in respect
of any amounts deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes after the Closing Date in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of Taxes.


 


(c)                                  Each
Lender agrees to use reasonable efforts (including reasonable efforts to change
its LIBOR Lending Office, as the case may be) to avoid or to minimize any
amounts which might otherwise be payable pursuant to this Section 2.18;
provided, however, that such efforts shall not cause the
imposition on such Lender of any additional costs or legal or regulatory
burdens deemed by such Lender in its sole discretion to be material.


 


(d)                                 If
the Borrower pays any additional amount pursuant to this Section 2.18
with respect to a Lender, such Lender shall use reasonable efforts to obtain a
refund of tax or credit against its tax liabilities on account of such payment;
provided that such Lender shall have no obligation to use such
reasonable efforts if either (i) it is in an excess foreign tax credit position
or (ii) it believes in good faith, in its sole discretion, that claiming a
refund or credit would cause adverse tax consequences to it.  If such Lender receives such a refund or
credit, such Lender shall pay to the Borrower an amount that such Lender
reasonably determines is equal to the net tax benefit obtained by such Lender
as a result of such payment by the Borrower. 
If no refund or credit is obtained with respect to the Borrower’s
payments to such Lender pursuant to this Section 2.18, then such
Lender shall upon request provide a certification that such Lender has not
received a refund or credit for such payments. 
Nothing contained in this Section 2.18 shall require a
Lender to disclose or detail the basis of its calculation of the amount of any
tax benefit or any other amount or the basis of its determination referred to
in the proviso to the first sentence of this Section 2.18 to the
Borrower or any other party.


 


(e)                                  The
agreements in this Section 2.18 shall survive the termination of
this Credit Agreement and the payment of the Loans and all other amounts
payable hereunder.


 


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2.19                           Indemnification; Nature of Issuing Lender’s Duties.


 


(a)                                  In
addition to its other obligations under Section 2.4, the Borrower
hereby agrees to protect, indemnify, pay and hold the Issuing Lender harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys’ fees) that the
Issuing Lender may incur or be subject to as a consequence, direct or indirect,
of (i) the issuance of any Letter of Credit, except to the extent
resulting from the gross negligence or willful misconduct of the Issuing Lender
or (ii) the failure of the Issuing Lender to honor a drawing under a Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or governmental authority (all
such acts or omissions, herein called “Government Acts”).


 


(b)                                 As
between the Borrower and the Issuing Lender, the Borrower shall assume all
risks of the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof.  The Issuing Lender
shall not be responsible for:  (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of a
Letter of Credit to comply fully with conditions required in order to draw upon
a Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v)  errors in interpretation
of technical terms; (vi) any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under a Letter of Credit or of
the proceeds thereof; and (vii) any consequences arising from causes beyond the
control of the Issuing Lender, including, without limitation, any Government
Acts.  None of the above shall affect,
impair, or prevent the vesting of the Issuing Lender’s rights or powers
hereunder.


 


(c)                                  In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by the Issuing Lender, under
or in connection with any Letter of Credit or the related certificates, if
taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to the Borrower.  It
is the intention of the parties that this Credit Agreement shall be construed
and applied to protect and indemnify the Issuing Lender against any and all
risks involved in the issuance of the Letters of Credit, all of which risks are
hereby assumed by the Borrower, including, without limitation, any and all
risks of the acts or omissions, whether rightful or wrongful, of any Government
Authority.  The Issuing Lender shall not,
in any way, be liable for any failure by the Issuing Lender or anyone else to
pay any drawing under any Letter of Credit as a result of any Government Acts
or any other cause beyond the control of the Issuing Lender.


 


(d)                                 Nothing
in this Section 2.19 is intended to limit the reimbursement
obligation of the Borrower contained in Section 2.4 hereof.  The obligations of the Borrower under this Section 2.19
shall survive the termination of this Credit Agreement.  No act or omissions of any


 


47





















 


current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of the Issuing Lender to enforce any right, power
or benefit under this Credit Agreement.


 


(e)                                  Notwithstanding
anything to the contrary contained in this Section 2.19, the
Borrower shall have no obligation to indemnify any Issuing Lender in respect of
any liability incurred by such Issuing Lender arising out of the gross
negligence or willful misconduct of the Issuing Lender, as determined by a
court of competent jurisdiction.


 


2.20                           Replacement of Lenders.


 


The Borrower shall be permitted to replace
with a financial institution, acceptable to the Administrative Agent, any
Lender (other than Wachovia Bank, National Association) that (a) requests
reimbursement for amounts owing pursuant to 2.15, 2.16 or 2.18(a), (b) is then
in default of its obligation to make Loans hereunder, or (c) that is a
Non-Extending Lender (as defined in Section 2.21 below); provided
that (i) such replacement does not conflict with any Requirement of Law, (ii)
no Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Lender shall not
have taken action under Section 2.15, 2.16(a) or 2.18(c),
as applicable, to successfully eliminate the continued need for payment of
amounts owing pursuant to Section 2.15, 2.16 or 2.18(a),
as applicable, (iv) the replacement financial institution shall purchase,
at par, all Loans and other amounts owing to such replaced Lender on or prior
to the date of replacement, (v) the Borrower shall be liable to such
replaced Lender under Section 2.17 if any LIBOR Loan owing to such
replaced Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (vi) the replacement financial institution, if not already a
Lender, shall be reasonably satisfactory to the Administrative Agent, (vii) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 10.6 (provided that the Borrower shall be
obligated to pay the registration and processing fee referred to therein),
(viii) until such time as such replacement shall be consummated, the Borrower
shall pay all additional amounts (if any) required pursuant to Section 2.15,
2.16 or 2.18(a), as the case may be, and (ix) any such
replacement shall not be deemed to be a waiver of any rights that the Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender.  If any replaced Lender fails to
execute the agreements required under Section 10.6 in connection
with an assignment pursuant to this Section 2.20, the Borrower may,
upon two (2) Business Days’ prior notice to such replaced Lender, execute
such agreements on behalf of such replaced Lender.  A Lender shall not be required to be replaced
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such replacement cease to
apply.


 


2.21                           Extension of Maturity Date.


 


(a)                                  Requests for
Extension.  The Borrower may, by
notice to the Administrative Agent (who shall promptly notify the Lenders) not
earlier than ninety (90) days and not later than sixty (60) days prior to the
Maturity Date then in effect hereunder (the “Existing Maturity Date”),
request that each Lender extend such Lender’s Maturity Date for up to an
additional two (2) years from the Existing Maturity Date but not less than
one (1) year from the Existing Maturity Date.


 


(b)                                 Lender Elections to
Extend.  Each Lender, acting in its
sole and individual discretion, shall, by notice to the Administrative Agent
given not earlier than forty-five (45) days


 


48





















 


prior to the Existing Maturity Date and not later than the date (the “Notice
Date”) that is thirty (30) days prior to the Existing Maturity Date, advise
the Administrative Agent whether or not such Lender agrees to such extension
(and each Lender that determines not to so extend its Maturity Date (a “Non-Extending
Lender”) shall notify the Administrative Agent of such fact promptly after
such determination (but in any event no later than the Notice Date) and any
Lender that does not so advise the Administrative Agent on or before the Notice
Date shall be deemed to be a Non-Extending Lender.  The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.


 


(c)                                  Notification by
Administrative Agent.  The
Administrative Agent shall notify the Borrower of each Lender’s determination
under this Section no later than the date 15 days prior to the Existing
Maturity Date (or, if such date is not a Business Day, on the next preceding
Business Day).


 


(d)                                 Additional
Commitment Lenders.  The Borrower
shall have the right on or before the Existing Maturity Date to replace each
Non-Extending Lender with, and add as “Lenders” under this Agreement in place
thereof, one or more new banks or other financial institutions approved by the
Administrative Agent (each, an “Additional Commitment Lender”) as
provided in Section 2.20, each of which Additional Commitment
Lenders shall have entered into a Commitment Transfer Supplement pursuant to
which such Additional Commitment Lender shall, effective as of the Existing
Maturity Date, undertake a Commitment (and, if any such Additional Commitment
Lender is already a Lender, its Commitment shall be in addition to such Lender’s
Commitment hereunder on such date).


 


(e)                                  Minimum Extension
Requirement.  If (and only if) the
total of the Commitments of the Lenders that have agreed so to extend their
Maturity Date and the additional Commitments of the Additional Commitment
Lenders shall be more than sixty percent (60%) of the aggregate amount of the
Commitments in effect immediately prior to the Existing Maturity Date, then,
effective as of the Existing Maturity Date, the Maturity Date of each Extending
Lender and of each Additional Commitment Lender shall be extended to the date
falling two (2) years after the Existing Maturity Date (except that, if such date
is not a Business Day, such Maturity Date as so extended shall be the next
preceding Business Day) and each Additional Commitment Lender shall thereupon
become a “Lender” for all purposes of this Agreement.


 


(f)                                    Conditions to
Effectiveness of Extensions. 
Notwithstanding the foregoing, the extension of the Maturity Date
pursuant to this Section shall not be effective with respect to any Lender
unless:


 


(i)                                     no
Default or Event of Default shall have occurred and be continuing on the date
of such extension and after giving effect thereto; and


 


(ii)                                  the
representations and warranties contained in this Agreement are true and correct
on and as of the date of such extension and after giving effect thereto, as
though made on and as of such date (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, as of such
specific date).


 


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(g)                                 Conflicting
Provisions.  This Section shall
supersede any provisions in Section 2.12 or 10.1 to the contrary.


 


2.22                           Lender Representation and Warranty.


 


Each Lender represents and warrants to the Credit Parties for the
purpose of making the representation and warranty in Section 3.7(e) that (i) no
part of any of the funds, monies, assets or other consideration to be used for
the funding of any Loan, LOC Obligation or other extension of credit under this
Credit Agreement or other Credit Document shall constitute “plan assets” as
defined in ERISA and (ii) the rights, benefits and interests of the Lenders
under this Credit Agreement and other Credit Documents will not be “plan assets”
under ERISA.


 


SECTION 3

REPRESENTATIONS AND WARRANTIES


 


To induce the Lenders to enter into this Credit Agreement and to make
Loans herein provided for, the Credit Parties hereby represent and warrant to
the Administrative Agent and to each Lender that:


 


3.1                                 Financial Statements.


 


The Borrower has delivered to the Administrative Agent copies of the
financial statements of the Borrower and its Subsidiaries referenced in Section
4.1(g).  The financial statements
described in Sections 4.1(g)(ii) and (iii) (including in each
case the related schedules and notes) fairly present in all material respects
the consolidated financial position of the Borrower and its Subsidiaries as of
the respective dates specified in such financial statements and the
consolidated results of their operations and cash flows for the respective
periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in the
notes thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments and the absence of footnotes).


 


3.2                                 Organization; Existence.


 


Each
of the Credit Parties is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and is duly qualified as a
foreign entity and is in good standing under the laws of each jurisdiction in
which such qualification is required by law, other than those jurisdictions as
to which the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.  Each of the Credit Parties has
the corporate power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it transacts and
proposes to transact, to execute and deliver this Credit Agreement and the
other Credit Documents and to perform the provisions hereof and thereof.


 


50





















 


3.3                                 Authorization; Power; Enforceable Obligations.


 


This Credit Agreement and the other Credit Documents have been duly
authorized by all necessary corporate action on the part of the Borrower and
the other Credit Parties, and this Credit Agreement constitutes, and upon
execution and delivery thereof each Note will constitute, a legal, valid and
binding obligation of the Credit Parties executing such documents enforceable
against such Credit Parties in accordance with their respective terms, except
as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law.


 


3.4                                 Consent; Government Authorizations.


 


No approval, consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person
is required in connection with acceptance of extensions of credit by the
Borrower or the making of the guaranties hereunder or with the execution,
delivery or performance of any Credit Documents by the other Credit Parties
(other than those which have been obtained) or with the validity or
enforceability of any Credit Document against the Credit Parties, except such filings
as are required to be made with and have been, or will be, made on a timely
basis with, the United States Securities and Exchange Commission.


 


3.5                                 No Material Litigation.


 


(a)                                  There are no
actions, suits or proceedings pending or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any Subsidiary or any property
of the Borrower or any Subsidiary in any court or before any arbitrator of any
kind or before or by any Governmental Authority that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.


 


(b)                                 Neither the
Borrower nor any Subsidiary is in default under any order, judgment, decree or
ruling of any court, arbitrator or Governmental Authority or is in violation of
any applicable law, ordinance, rule or regulation (including without limitation
Environmental Laws) of any Governmental Authority, which default or violation,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.


 


3.6                                 Taxes.


 


The
Borrower and its Subsidiaries have filed all tax returns (federal, state, local
and foreign) that are required to have been filed in any jurisdiction, and have
paid all income taxes shown to be due and payable (including interest and
penalties) on such returns and all other taxes and assessments payable by them,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments (a) the
amount of which is not individually or in the aggregate Material or
(b) the amount, applicability or validity of which is currently being
contested in good faith by appropriate proceedings and


 


51





















 


with respect to which the
Borrower or a Subsidiary, as the case may be, has established adequate reserves
in accordance with GAAP.  None of the
Credit Parties or their respective Subsidiaries are aware, as of the Closing
Date, of any proposed tax assessments against it or any of its Subsidiaries
which would reasonably be expected to have a Material Adverse Effect.


 


3.7                                 ERISA.


 


(a)                                  Each Credit
Party and each ERISA Affiliate have operated and administered each Plan (other
than Multiemployer Plans) in compliance with all applicable laws except for
such instances of noncompliance as have not resulted in and would not
reasonably be expected to result in a Material Adverse Effect.  Neither any Credit Party nor any ERISA
Affiliate has incurred any liability pursuant to Title IV of ERISA (other than
for premiums payable to the PBGC not yet due) or the penalty or excise tax
provisions of the Code relating to employee benefit plans (as defined in
Section 3 of ERISA) or for failure to comply with the provisions of Title
I of ERISA, in each case which has not been satisfied, and no event,
transaction or condition has occurred or exists that would reasonably be
expected to result in the incurrence of any such liability by any Credit Party
or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties
or assets of any Credit Party or any ERISA Affiliate, in either case pursuant
to Title I or IV of ERISA or to such penalty or excise tax provisions
including Section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as would not be individually or in the aggregate Material.


 


(b)                                 The present
value of all accrued benefits, whether or not vested, under all Single Employer
Plans, determined with respect to each Single Employer Plan, as of the most
recent valuation date prior to the date on which this representation is made on
the basis of the actuarial assumptions specified for funding purposes in the
Single Employer Plan’s most recent actuarial valuation report, did not exceed
the fair market value of the assets of the Single Employer Plans by more than
$40,000,000 in the aggregate for all such Plans.


 


(c)                                  Neither any
Credit Party nor any ERISA Affiliate has incurred any withdrawal liabilities
under Section 4201 of ERISA that have not been satisfied or is subject to
contingent withdrawal liabilities under Section 4204 of ERISA with respect to
any Multiemployer Plan that individually or in the aggregate are Material.  Neither any Credit Party nor any ERISA
Affiliate has received any notification that any Multiemployer Plan is in
Reorganization, Insolvency, or has been terminated (within the meaning of Title
IV of ERISA), and, to the knowledge of the Credit Parties, no Multiemployer
Plan is reasonably expected to be in Reorganization, Insolvency, or terminated.


 


(d)                                 The
aggregate expected post-retirement benefit obligation (determined with respect
to a Credit Party as of the last day of the Credit Party’s most recently ended
fiscal year in accordance with Financial Accounting Standards Board Statement
No. 106, without regard to liabilities attributable to continuation coverage
mandated by Section 4980B of the Code or similar state law) of the Credit
Parties and their Subsidiaries would not reasonably be expected to have a
Material Adverse Effect.


 


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(e)                                  The
execution and delivery of this Credit Agreement and the other Credit Documents
hereunder will not involve any transaction that is subject to the prohibitions
of Section 406 of ERISA or in connection with which a tax could be imposed
pursuant to Section 4975(c)(1)(A)-(D) of the Code.  The representation and warranty of the Credit
Parties in the preceding sentence is made on reliance upon and subject to the
accuracy of the Lenders’ representations in Section 2.22 and any Transferee’s
representations made pursuant to Section 10.6(i).


 


3.8                                 Governmental Regulations, Etc.


 


(a)                                  No
part of the proceeds of the Loans hereunder will be used, directly or
indirectly, for the purpose of purchasing or carrying any “margin stock” within
the meaning of Regulation U.  If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form U-1 referred to in said
Regulation U.  No Indebtedness being
reduced or retired out of the proceeds of the Loans hereunder was or will be
incurred for the purpose of purchasing or carrying any margin stock within the
meaning of Regulation U or any “margin security” within the meaning of Regulation
T.  “Margin stock” within the meaning of
Regulation U does not constitute more than 25% of the value of the Consolidated
Assets of the Borrower and its Subsidiaries. 
Neither the execution and delivery hereof by the Borrower, nor the performance
by it of any of the transactions contemplated by this Credit Agreement
(including, without limitation, the direct or indirect use of the proceeds of
the Loans) will violate or result in a violation of the Securities Act of 1933,
as amended, or the Securities Exchange Act of 1934, as amended, or regulations
issued pursuant thereto, or Regulation T, U or X.


 


(b)                                 The
Borrower is not (i) an “investment company” registered or required to be
registered under the Investment Company Act of 1940, as amended, and is not controlled
by such a company, or (ii) a “holding company”, or a “subsidiary company” of a “holding
company”, or an “affiliate” of a “holding company” or of a “subsidiary” of a “holding
company”, within the meaning of the Public Utility Holding Company Act of 1935,
as amended.


 


(c)                                  The
use of the proceeds of the Loans hereunder will not violate the Trading with
the Enemy Act, as amended, or any of the foreign assets control regulations of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto.  Without limiting the foregoing, none of the
Credit Parties is or will (i) become a person whose property or interest
in property are blocked pursuant to Section 1 of Executive Order 13224
of September 23, 2001 Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed.
Reg. 49079 (2001)) or (ii) to the best of its knowledge, engage in
any dealings or transactions relating to any property or interests in property
blocked pursuant to Executive Order 13224.


 


3.9                                 Subsidiaries.


 


(a)                                  Schedule 3.9 is (except
as noted therein) a complete and correct list as of the date hereof of the
Borrower’s Subsidiaries, showing, as to each Subsidiary, the correct name
thereof,


 


53





















 


the jurisdiction of its
organization, and the percentage of shares of each class of its capital stock
or similar equity interests outstanding owned by the Borrower and each other
Subsidiary.


 


(b)                                 All of the
outstanding shares of capital stock or similar equity interests of each
Subsidiary shown in Schedule 3.9 as being owned by the Borrower and its
Subsidiaries have been validly issued, are fully paid and nonassessable and are
owned by the Borrower or another Subsidiary free and clear of any Lien (except
as otherwise disclosed in Schedule 3.9).


 


(c)                                  Each
Subsidiary identified in Schedule 3.9 is
a corporation or other legal entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization (if such
jurisdiction provides for such a concept), and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.  Each such Subsidiary has
the corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the business
it transacts and proposes to transact.


 


3.10                           Use of Proceeds.


 


The Extensions of Credit will be used solely
(a) to refinance the Existing Facility
and certain other Indebtedness and to pay fees and expenses in connection
herewith and therewith and (b) to provide for the working capital and general
corporate requirements of the Borrower, including Permitted Acquisitions and
dividends and stock repurchases permitted hereunder.


 


3.11                           Contractual Obligations; Compliance with Laws; No
Conflicts.


 


The execution, delivery and performance by
the Borrower and the other Credit Parties, as applicable, of this Credit
Agreement and the other Credit Documents will not (a) result in the creation of any Lien in respect of any property of
the Borrower or any Subsidiary under any indenture, mortgage, deed of trust,
loan, purchase or credit agreement, lease, corporate charter or by-laws, or any
other Material agreement or instrument to which the Borrower or any Subsidiary
is bound or by which the Borrower or any Subsidiary or any of their respective
properties may be bound or affected, (b)
conflict with or result in a breach of any of the terms, conditions or
provisions of any order, judgment, decree, or ruling of any court, arbitrator
or Governmental Authority applicable to the Borrower or any Subsidiary, (c) violate any Requirement of Law applicable to
the Borrower or any of its Subsidiaries (except those as to which waivers or
consents have been obtained) or (d)
conflict with, result in a breach of or constitute a default under (i) the
articles of incorporation, bylaws or other organizational documents of such
Person, (ii) any Material indenture, agreement or other instrument to which
such Person is a party or by which any of its properties may be bound or (iii)
any approval of any Governmental Authority relating to such Person.


 


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3.12                           Accuracy and Completeness of Information.


 


All factual information heretofore, contemporaneously or hereafter
furnished by or on behalf of the Borrower or any Credit Party in writing to the
Administrative Agent or any Lender for purposes of or in connection with this
Credit Agreement or any other Credit Document, or any transaction contemplated
hereby or thereby, is or will be true and accurate in all material respects as
of the date stated therein and not incomplete by omitting to state any material
fact necessary to make such information not misleading provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time. 
There is no fact now known to the Borrower or any Credit Party which
has, or would reasonably be expected to have, a Material Adverse Effect which
fact has not been set forth herein, in the financial statements of the Borrower
furnished to the Administrative Agent and/or the Lenders, or in any
certificate, opinion or other written statement made or furnished by the
Borrower or any Credit Party to the Administrative Agent and/or the Lenders.


 


3.13                           Environmental Matters.


 


(a)                                  Except
where such violation or liability would not reasonably be expected to have a
Material Adverse Effect, the facilities and properties owned, leased or
operated by any of the Credit Parties and their Subsidiaries (the “Properties”)
do not contain any Materials of Environmental Concern in amounts or
concentrations which (i) constitute a violation of, or (ii) have
resulted in liability under, any Environmental Law.


 


(b)                                 Except
where such violation would not reasonably be expected to have a Material
Adverse Effect, (i) the Properties and all operations of the Credit
Parties and their Subsidiaries at the Properties are in compliance, and have in
the last five years been in compliance, in all material respects with all
applicable Environmental Laws, and (ii) there is no contamination at or
under the Properties or violation of any Environmental Law with respect to the
Properties or the business operated by any of the Credit Parties (the “Business”).


 


(c)                                  Neither
the Borrower nor any of its Subsidiaries has received any written notice of
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Business which would reasonably be
expected to have a Material Adverse Effect, nor does the Borrower nor any of
its Subsidiaries have knowledge of any such threatened notice.


 


(d)                                 Except
where such violation or liability would not reasonably be expected to have a
Material Adverse Effect, (i) Materials of Environmental Concern have not
been transported or disposed of from the Properties in violation of, or in a
manner or to a location which has given rise to liability under any
Environmental Law, and (ii) Materials of Environmental Concern have not
been generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that has given rise to liability
under, any applicable Environmental Law.


 


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(e)                                  Except
where such proceeding or action would not reasonably be expected to have a
Material Adverse Effect, (i) no judicial proceeding or governmental or
administrative action is pending or, to the knowledge of any Credit Party,
threatened, under any Environmental Law to which any of the Credit Parties is
or will be named as a party with respect to the Properties or the Business, and
(ii) there are no consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
directives outstanding under any Environmental Law with respect to the
Properties or the Business.


 


(f)                                    Except
where such violation or liability would not reasonably be expected to have a
Material Adverse Effect, there has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or arising from
or related to the operations of any of the Credit Parties in connection with
the Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner requiring remediation under Environmental Laws.


 


3.14                           No Burdensome Restrictions.


 


None of the Borrower or any of its Subsidiaries is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction which, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.


 


3.15                           Title to Property.


 


The Borrower and its Subsidiaries have good and sufficient title to
their respective Material properties, including all such properties reflected
in the most recent audited balance sheet referred to in Section 3.1
and Section 5.1 or purported to have been acquired by the Borrower or
any Subsidiary after said date (except as sold or otherwise disposed of in the
ordinary course of business or as otherwise permitted hereunder), in each case
free and clear of Liens prohibited by this Credit Agreement, except for those
defects in title and Liens that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.


 


3.16                           Insurance.


 


The present insurance coverage of the
Borrower and its Subsidiaries is outlined as to carrier, policy number,
expiration date, type and amount on Schedule 3.16 and such insurance
coverage complies with the requirements set forth in Section 5.5.


 


3.17                           Licenses and Permits.


 


The Borrower and its Subsidiaries own or
possess all licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights thereto, required for the
continued conduct of their business, that are Material, without known conflict
with the rights of others, except for those conflicts or failures to own or
possess that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.


 


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3.18                           Anti-Terrorism Laws.


 


Neither the
making of the Loans hereunder nor the Borrower’s use of the proceeds thereof
will violate the Patriot Act, the Trading with the Enemy Act, as amended, or
any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto, or is in violation of any
Federal statute or Presidential Executive Order, including without limitation
Executive Order 13224 66 Fed. Reg. 49079 (September 25, 2001) (Blocking
Property and Prohibiting Transactions with Persons who Commit, Threaten to
Commit or Support Terrorism) (collectively, “Anti-Terrorism Laws”).


 


3.19                           Labor Matters.


 


There are no collective bargaining agreements covering the employees of
the Credit Parties as of the Closing Date, other than as set forth in Schedule 3.19
hereto, and none of the Credit Parties has suffered any material strikes,
walkouts, work stoppages or other material labor difficulty within the five
years prior to the date hereof, other than as set forth in Schedule 3.19
hereto.


 


SECTION 4

CONDITIONS


 


4.1                                 Conditions to Closing.


 


This Credit Agreement shall become effective upon, and the obligation
of each Lender to make the initial Loans is subject to, the satisfaction of the
following conditions precedent:


 


(a)                                  Execution
of Credit Agreement and Credit Documents. 
Receipt by the Administrative Agent of (i) multiple counterparts of
this Credit Agreement and (ii) for the account of each Lender that
requests a Revolving Note, Revolving Notes and for the account of the Swingline
Lender, a Swingline Note, in each case executed by a duly authorized officer of
each party thereto and in each case conforming to the requirements of this
Credit Agreement.


 


(b)                                 Legal
Opinion.  Receipt by the
Administrative Agent of a legal opinion of counsel to the Credit Parties
relating to this Credit Agreement and the other Credit Documents and the
transactions contemplated herein and therein, in form and substance reasonably
acceptable to the Administrative Agent.


 


(c)                                  [Reserved.]


 


(d)                                 Corporate
Documents. Receipt by the Administrative Agent of the following (or their
equivalent), each (other than with respect to clause (iv)) certified by
the secretary or assistant secretary of the Borrower as of the Closing Date to
be true and correct and in force and effect pursuant to a certificate
substantially in the form attached hereto as Schedule 4.1(d):


 


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(i)                                     Articles
of Incorporation.  Copies of the
articles of incorporation or charter documents of the Credit Parties certified
to be true and complete as of a recent date by the appropriate Governmental
Authority of the state of its organization.


 


(ii)                                  Resolutions.  Copies of resolutions of the board of
directors or comparable managing body of the Credit Parties approving and
adopting the respective Credit Documents, the transactions contemplated therein
and authorizing execution and delivery thereof.


 


(iii)                               Bylaws.  Copies of the bylaws, operating agreement or
partnership agreement of the Credit Parties certified by a secretary or
assistant secretary as of the Closing Date to be true and correct and in force
and effect as of such date.


 


(iv)                              Good
Standing.  Copies, where applicable,
of certificates of good standing, existence or its equivalent of each of the
Credit Parties certified as of a recent date by the appropriate Governmental
Authorities of the State of organization.


 


(e)                                  Officer’s
Certificate.  Receipt by the
Administrative Agent of a certificate, in form and substance reasonably
satisfactory to it, of a Responsible Officer certifying that immediately after
giving effect to this Credit Agreement (including the initial Extensions of
Credit hereunder), the other Credit Documents, and all the transactions
contemplated therein or thereby to occur on such date, (i) no Default or Event
of Default exists and (ii) all representations and warranties contained herein
and in the other Credit Documents are true and correct in all material
respects.


 


(f)                                    Account
Designation Letter.  Receipt by the
Administrative Agent of an executed counterpart of the Account Designation
Letter.


 


(g)                                 Financial
Information.  Receipt by the
Administrative Agent of (i) three-year
financial and operational projections for the Borrower and its Subsidiaries
together with a reasonably detailed explanation of all management assumptions
contained therein, which projections shall be in form and substance
satisfactory to the Administrative Agent and the Lenders, (ii) the final audited financial statements of
the Borrower for the twelve month period ending January 3, 2004 and (iii) the unaudited quarterly financial
statements of the Borrower for the quarter ending October 2, 2004.


 


(h)                                 Capital
Structure/Other Documentation. Receipt by the Administrative Agent of any
information requested by it relating to the corporate and capital structure of
the Borrower and its Subsidiaries.


 


(i)                                     Flow
of Funds.  Receipt by the Administrative
Agent of a sources and uses table and payment instructions with respect to each
wire transfer to be made by the Administrative Agent on behalf of the Lenders
or the Borrower on the Closing Date setting forth the amount of such transfer,
the purpose of such transfer, the name and number of the account to which such
transfer is to be made, the name and ABA number of the bank or other financial
institution where


 


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such account is located and the
name and telephone number of an individual that can be contacted to confirm
receipt of such transfer.


 


(j)                                     Repayment
of Existing Indebtedness.  All
existing Indebtedness for borrowed money of the Borrower and its Subsidiaries
(including the Existing Facilities, but excluding the existing Indebtedness
listed on Schedule 6.1) shall have been repaid in full and terminated
and the Administrative Agent shall have received such evidence of such
repayment and termination as the Administrative Agent may reasonably require.


 


(k)                                  Consents.  The Administrative Agent shall have received
evidence that all necessary governmental, corporate, shareholder and third
party consents and approvals, if any, in connection with the financings and
other transactions contemplated hereby have been received and no condition
exists which would reasonably be likely to restrain, prevent or impose any
material adverse conditions on the transactions contemplated hereby.


 


(l)                                     No
Material Adverse Change.  No material
adverse change shall have occurred since January 3, 2004 in the business,
assets, liabilities, or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole.


 


(m)                               Litigation.
There shall not exist any pending or, to the knowledge of the Borrower,
threatened litigation, investigation, bankruptcy or insolvency, injunction,
order or claim affecting or relating to any Credit Party or any of its
Subsidiaries, this Agreement and the other Credit Documents that has not been
settled, dismissed, vacated, discharged or terminated prior to the Closing Date
which would reasonably be expected to have a Material Adverse Effect.


 


(n)                                 Fees.  Receipt by the Administrative Agent and the
Lenders of all fees, if any, then owing pursuant to the Fee Letter, Section
2.10 or pursuant to any other Credit Document.


 


(o)                                 Patriot
Act Certificate.  The Administrative
Agent shall have received a certificate satisfactory thereto, for benefit of
itself and the Lenders, provided by the Borrower that sets forth information
required by the Patriot Act including, without limitation, the identity of the
Borrower, the name and address of the Borrower and other information that will
allow the Administrative Agent or any Lender, as applicable, to identify the
Borrower in accordance with the Patriot Act.


 


(p)                                 Additional
Matters.  All other documents and
legal matters in connection with the transactions contemplated by this Credit
Agreement shall be reasonably satisfactory in form and substance to the
Administrative Agents and the Required Lenders.


 


4.2                                 Conditions to All Extensions of Credit.


 


The obligation of each Lender to make any Extension of Credit hereunder
is subject to the satisfaction of the following conditions precedent on the
date of making such Extension of Credit:


 


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(a)                                  Representations
and Warranties.  The representations
and warranties made by the Borrower herein or in any other Credit Document or
which are contained in any certificate furnished at any time under or in
connection herewith or therewith shall be true and correct on and as of the
date of such Extension of Credit as if made on and as of such date (except for
those which expressly relate to an earlier date).


 


(b)                                 No
Default or Event of Default.  No
Default or Event of Default shall have occurred and be continuing on such date
or after giving effect to the Extension of Credit to be made on such date.


 


(c)                                  Compliance
with Commitments.  Immediately after giving effect to
the making of any such Extension of Credit (and the application of the proceeds
thereof), (i) the sum of the aggregate principal amount of outstanding
Revolving Loans plus Swingline Loans plus LOC Obligations plus
Competitive Loans shall not exceed the Revolving Committed Amount, (ii) the LOC
Obligations shall not exceed the LOC Committed Amount and (iii) the Swingline
Loans shall not exceed the Swingline Commitment (except that if the Extension
of Credit then being made is a continuation or extension of an Interest Period
applicable to a Swingline Loan denominated in a Foreign Currency, clauses (i)
and (iii) shall not be required to be satisfied as a condition thereto to the
extent of any excess resulting from exchange rate fluctuations regarding the
Dollar Amount of Swingline Loans denominated in Foreign Currencies of not
greater than 10% of the Swingline Commitment Amount).


 


Each request for an Extension of Credit (including extensions and
conversions) and each acceptance by the Borrower of an Extension of Credit
(including extensions and conversions) shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such Loan that
the conditions in subsections (a) and (b) of this Section have been satisfied.


 


SECTION 5

AFFIRMATIVE COVENANTS


 


The Credit Parties covenant and agree that on the Closing Date, and so
long as this Credit Agreement is in effect and until the Commitments have been
terminated, no Loans remain outstanding and all amounts owing hereunder or
under any other Credit Document or in connection herewith or therewith have
been paid in full, the Credit Parties shall, and shall cause each Subsidiary
to:


 


5.1                                 Financial Statements.


 


Furnish, or cause to be furnished, to the Administrative Agent and the
Lenders:


 


(a)                                  as
soon as available, but in any event within 120 days after the end of each
fiscal year of the Borrower (or, if earlier, within five (5) Business Days
after such date as the Borrower is required to file its annual report on Form
10-K for such fiscal year with the Securities and Exchange Commission), a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year, and the related consolidated statements of income or
operations,


 


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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, 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; and


 


(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 Borrower  (or, if earlier,
within five (5) Business Days after such date as the Borrower is required to
file its quarterly report on Form 10-Q for such fiscal quarter with the
Securities and Exchange Commission), a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal quarter and for the portion of the Borrower’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, such consolidated statements to be certified by a Responsible Officer
of the Borrower as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of the Borrower 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 5.2(d),
the Borrower shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation
of the obligation of the Borrower to furnish the information and materials
described in clauses (a) and (b) above at the times specified
therein.  All such financial statements
shall be complete and correct in all material respects (subject, in the case of
interim statements, to normal recurring year-end audit adjustments) and shall
be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and further accompanied
by a description of, and an estimation of the effect on the financial
statements on account of, any change in the application of accounting
principles as provided in Section 1.3.


 


5.2                                 Certificates; Other Information.


 


Furnish, or cause to be furnished, to the
Administrative Agent for distribution to the Lenders:


 


(a)                                  Accountant’s
Certificate and Reports. 
Concurrently with the delivery of the financial statements referred to
in Section 5.1(a) above, a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
breach of Section 5.9, except as specified in such certificate.


 


(b)                                 Officer’s
Certificate.  Concurrently with the
delivery of the financial statements referred to in Sections 5.1(a) and 5.1(b)
above, a certificate of a Responsible Officer stating that,


 


61





















 


to the best of such Responsible
Officer’s knowledge and belief, (i) the financial statements fairly present in
all material respects the financial condition of the parties covered by such
financial statements, (ii) during such period each Credit Party has observed or
performed its covenants and other agreements hereunder and under the other
Credit Documents, and satisfied the conditions contained in this Credit Agreement
to be observed, performed or satisfied by it (except to the extent waived in
accordance with the provisions hereof), (iii) such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in
such certificate and (iv) solely in connection with the delivery of the
financial statements referred to in Section 5.1(a), there has been no
development or event during the fiscal year covered thereby which has had or
would reasonably be expected to have a Material Adverse Effect.  Such certificate shall include the
calculations required to indicate compliance with Section 5.9 as of
the last day of the period covered by such financial statements and shall
contain a complete and correct list of the Borrower’s Subsidiaries, showing, as
to each Subsidiary, the correct name thereof, the jurisdiction of its
organization, and the percentage of shares of each class of its capital stock
or similar equity interests outstanding owned by the Borrower and each other
Subsidiary, or a statement there has been no change in such information since
delivery of the certificate last delivered pursuant to this Section 5.2(b).  A form of Officer’s Certificate is attached
as Schedule 5.2(b).


 


(c)                                  Other
Information.  Promptly, such
additional financial and other information as the Administrative Agent, at the
request of any Lender, may from time to time reasonably request.


 


(d)                                 Public
Information.  Promptly after the same
are sent, copies of all reports (other than those otherwise provided pursuant
to Section 5.1) and other financial information which any Credit Party
sends to its public stockholders, and promptly after the same are filed, copies
of all financial statements and non-confidential reports which any Credit Party
may make to, or file with, the Securities and Exchange Commission or any
successor or analogous United States Governmental Authority.


 


(e)                                  Permitted
Acquisition Information.  Not less
than five (5) Business Days prior to the consummation of any Permitted
Acquisition with a purchase price in excess of $50,000,000, a certificate, in
form and substance reasonably satisfactory to the Administrative Agent,
executed by a Responsible Officer of the Borrower (A) certifying that (1) such
Permitted Acquisition complies with the requirements of this Credit Agreement
and (2) after giving effect to such Permitted Acquisition and any borrowings in
connection therewith, the Borrower believes in good faith that it will have
sufficient availability under the Aggregate Revolving Committed Amount to meet
its ongoing working capital requirements and (B) demonstrating compliance with
clauses (b), (d) and (e)(i) of the definition of the Permitted Acquisition.


 


Documents required to be delivered pursuant to Section 5.1(a) or
(b) or Section 5.2(d) (to the extent any such documents are
included in materials otherwise filed with the Securities and Exchange
Commission) may be delivered electronically and shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides
a link thereto on the Borrower’s website on the Internet at its website; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet
or intranet website, if any, to which each Lender


 


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and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that the Borrower shall deliver
paper copies of such documents to the Administrative Agent or any Lender that
requests the Borrower to deliver such paper copies until a written request to
cease delivering paper copies is given by the Administrative Agent or such
Lender.


 


5.3                                 Notices.


 


Give notice to the Administrative Agent
(which shall promptly transmit such notice to each Lender) of:


 


(a)                                  Defaults.  Promptly (but in any event within two (2)
Business Days), after any Credit Party knows thereof, the occurrence of any
Default or Event of Default.


 


(b)                                 Legal
Proceedings.  Promptly, any
litigation, or any investigation or proceeding (including without limitation,
any environmental or Governmental Authority proceeding) known to any Credit
Party, relating to the Borrower or any of its Subsidiaries which, if adversely
determined, would reasonably be expected to have a Material Adverse Effect.


 


(c)                                  ERISA.  Promptly, on any Credit Party gaining
knowledge of (i) the occurrence of any Reportable Event with respect to any
Single Employer Plan, (ii) a failure by any Credit Party or any ERISA Affiliate
to make any required contribution to a Single Employer Plan required to meet
the minimum funding standard set forth in ERISA and the Code with respect
thereto, (iii) the creation of any Lien on the assets of any Credit Party or
any ERISA Affiliate in favor of the PBGC (other than a Permitted Lien) or a
Plan, or (iv) with respect to any Multiemployer Plan, the assessment of any
withdrawal liability against any Credit Party or any ERISA Affiliate, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan; and in
each case in clauses (i) and (iv) above, such event or condition would
reasonably be expected to have a Material Adverse Effect.


 


(d)                                 Other.  Promptly, any other development or event
which a Responsible Officer gains knowledge of which would reasonably be
expected to have a Material Adverse Effect.


 


Each notice pursuant to this Section 5.3 shall be accompanied by
a statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.


 


5.4                                 Maintenance of Existence; Compliance with Laws;
Contractual Obligations.


 


(a)                                  Subject to Section 6.4,
each Credit Party will at all times preserve and keep in full force and effect
its and the corporate existence of each of its Subsidiaries (unless merged into
the Borrower or a Subsidiary) and all rights and franchises of itself and its
Subsidiaries unless, in the good faith judgment of the Borrower, the
termination of or failure to preserve and keep in full force and effect such
corporate existence, right or franchise would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


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(b)                                 Comply
with all Requirements of Law, ordinances or governmental rules or regulations
to which each of them is subject, including, without limitation, Environmental
Laws and ERISA-related Requirements of Law, and obtain and maintain in effect
all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent
necessary to ensure that non-compliance with such laws, ordinances or
governmental rules or regulations or failures to obtain or maintain in effect
such licenses, certificates, permits, franchises and other governmental
authorizations would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.


 


(c)                                  Fully
perform and satisfy all of its obligations under all of its contractual
obligations except to the extent that failure to perform and satisfy such
obligations would not reasonably be expected, in the aggregate, to have a
Material Adverse Effect.


 


5.5                                 Maintenance of Property; Insurance.


 


(a)                                  Maintain
and keep, or cause to be maintained and kept, their respective properties in
good repair, working order and condition (other than ordinary wear and tear),
so that the business carried on in connection therewith may be properly
conducted at all times, provided that this Section 5.5 shall
not prevent the Borrower or any Subsidiary from discontinuing the operation and
the maintenance of any of its properties if such discontinuance is desirable or
acceptable in the conduct of its business and the Borrower has concluded that
such discontinuance would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


(b)                                 Maintain,
with financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated;
and furnish to the Administrative Agent, upon written request, full information
as to the insurance carried.


 


5.6                                 Inspection of Property; Books and Records;
Discussions.


 


Keep proper books of records and account in
which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation
to its businesses and activities; and permit, during regular business hours and
upon reasonable notice by the Administrative Agent or any Lender, the
Administrative Agent or any such Lender to visit and inspect any of its
properties and examine and make abstracts (including photocopies) from any of
its books and records at any reasonable time, and to discuss the business,
operations, properties and financial and other condition of the Credit Parties
and their Subsidiaries with officers and employees of the Credit Parties and
their Subsidiaries and with their independent certified public
accountants.  The cost of the inspection
referred to in the preceding sentence shall be for the account of the Lenders
unless an Event of


 


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Default has occurred and is
continuing, in which case the cost of such inspection shall be for the account
of the Borrower.


 


5.7                                 Use of Proceeds.


 


Use the Loans solely for the purposes
provided in Section 3.10.


 


5.8                                 Additional Guarantors.


 


Where Domestic Subsidiaries of the Borrower that are not Credit Parties
hereunder (the “Non-Guarantor
Subsidiaries”) shall at any time constitute more than either


 


(i)                                     twenty
five percent (25%), in the aggregate, of Consolidated Assets, or


 


(ii)                                  twenty
five percent (25%), in the aggregate, of Consolidated Net Income,


 


(collectively, the “Threshold Requirement”), the Borrower shall
promptly so notify the Administrative Agent and shall cause one or more
Domestic Subsidiaries to become a “Guarantor” hereunder within thirty (30) days
after such notice by (a) executing a Joinder Agreement and (b) delivering such
other documentation as the Administrative Agent may reasonably request in
connection with the foregoing, including, without limitation, certified
resolutions and other organizational and authorizing documents of such Person
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 above), all in form, content and scope reasonably
satisfactory to the Administrative Agent such that immediately after the
joinder of such Domestic Subsidiaries as Guarantors hereunder, the remaining
Non-Guarantor Subsidiaries shall not, either individually or as a group, exceed
the Threshold Requirement.


 


For purposes of determining compliance with this Section 5.8,
the Threshold Requirement shall be tested (i) at the end of each fiscal quarter
of the Borrower and (ii) at the time any Permitted Acquisition with a purchase
price of $50,000,000 is consummated.


 


5.9                                 Financial Covenants.


 


(a)                                  Leverage
Ratio.  On a consolidated basis,
maintain a Leverage Ratio as of the end of each fiscal quarter of the Borrower
of less than or equal to 3.00 to 1.0.


 


(b)                                 Interest
Coverage Ratio.  On a consolidated
basis, maintain an Interest Coverage Ratio as of the end of each fiscal quarter
of the Borrower of greater than or equal to 4.00 to 1.0.


 


5.10                           Payment of Obligations.


 


File all income tax or similar tax returns
required to be filed in any jurisdiction and to pay and discharge all taxes
shown to be due and payable on such returns and all other taxes, assessments,
governmental charges, or levies payable by any of them, to the extent such
taxes and assessments have become due and payable and before they have become
delinquent,


 


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provided
that neither the Borrower nor any Subsidiary need pay any such tax or
assessment if (a) the amount, applicability or validity thereof is
contested by the Borrower or such Subsidiary on a timely basis in good faith
and in appropriate proceedings, and the Borrower or a Subsidiary has
established adequate reserves therefore in accordance with GAAP on the books of
the Borrower or such Subsidiary or (b) the nonpayment of all such taxes
and assessments in the aggregate would not reasonably be expected to have a
Material Adverse Effect.


 


5.11                           Environmental Laws.


 


(a)                                  Except
to the extent that the failure to do so would not reasonably be expected to
have a Material Adverse Effect, (i) comply in all material respects with and
take commercially reasonable steps to ensure compliance in all material
respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws and (ii) obtain and comply in all material respects with and
maintain, and take commercially reasonable steps to ensure that all tenants and
subtenants obtain and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or permits required
by applicable Environmental Laws;


 


(b)                                 Except
to the extent that the failure to do so would not reasonably be expected to
have a  Material Adverse Effect, (i)
conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and (ii)
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws; and


 


(c)                                  Defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective employees, agents, officers and directors and affiliates, from and
against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower or any of its Subsidiaries or
their Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable attorney’s
and consultant’s fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of the party seeking
indemnification therefor.  The agreements
in this paragraph shall survive repayment of the Notes and all other amounts
payable hereunder.


 


SECTION 6

NEGATIVE COVENANTS


 


The Credit Parties covenant and agree that on
the Closing Date, and so long as this Credit Agreement is in effect and until
the Commitments have been terminated, no Loans remain outstanding and all
amounts owing hereunder or under any other Credit Document or in connection
herewith or therewith have been paid in full, the Credit Parties shall not and
shall not permit any Subsidiary to with respect to Sections 6.2 through 6.10
and the Subsidiaries shall not with respect to Sections 6.1 and 6.11:


 


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6.1                                 Indebtedness.


 


At any time, create, incur, assume or suffer to exist any Indebtedness,
except:


 


(a)                                  Indebtedness
represented by the Credit Party Obligations;


 


(b)                                 Indebtedness
of any Subsidiary owing to the Borrower or any other Subsidiary;


 


(c)                                  Indebtedness
existing as of the Closing Date and set forth on Schedule 6.1;


 


(d)                                 Indebtedness
of the Subsidiaries incurred after the Closing Date consisting of Capital
Leases or Indebtedness incurred to provide all or a portion of the purchase
price or cost of construction of an asset; provided that (i) such
Indebtedness when incurred shall not exceed the purchase price or cost of
construction of such asset and (ii) no such Indebtedness shall be refinanced
for a principal amount in excess of the principal balance outstanding thereon
at the time of such refinancing;


 


(e)                                  Indebtedness
and obligations owing under Hedging Agreements entered into in order to manage
existing or anticipated interest rate or exchange rate risks and not for
speculative purposes;


 


(f)                                    Guaranty
Obligations in respect of Indebtedness of a Credit Party to the extent such
Indebtedness is permitted to exist or be incurred pursuant to this Section
6.1;


 


(g)                                 Indebtedness
of any Person (i) that is existing at the time such Person is acquired by, or
merged or consolidated with or into, the Borrower or a Subsidiary of the
Borrower, and (ii) that is not created in contemplation of such event;


 


(h)                                 Indebtedness
arising from (i) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business, or (ii)
the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of business;


 


(i)                                     any
refunding or refinancing of any Indebtedness referred to in this Section 6.1,
provided that any such refunding or refinancing does not increase the principal
amount thereof; and


 


(j)                                     other
Indebtedness of the Subsidiaries in an aggregate amount not to exceed
$75,000,000.


 


6.2                                 Liens.


 


Contract,
create, incur, assume or permit to exist any Lien with respect to any of its
property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or hereafter acquired, except for Permitted
Liens.


 


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6.3                                 Nature of Business.


 


Engage in any Material line of business substantially different from
those lines of business conducted by the Credit Parties and the Subsidiaries on
the date hereof or any business substantially related or incidental thereto.


 


6.4                                 Mergers, Sale of Assets and Indebtedness of
Subsidiaries


 


(a)                                  Dissolve,
liquidate or wind up its affairs, sell, transfer, lease or otherwise dispose of
its property or assets or agree to do so at a future time; provided that
the following, without duplication, shall be expressly permitted (including
under Section 5.4):


 


(i)                                     the sale, transfer,
lease or other disposition of inventory and materials in the ordinary course of
business;


 


(ii)                                  the sale by Paoli
Inc., an Iowa corporation, of its accounts receivable in connection with a
securitization of such accounts;


 


(iii)                               the sale, transfer or
other disposition of cash and Cash Equivalents;


 


(iv)                              (A) the disposition of
property or assets as a direct result of a Recovery Event or (B) the sale,
lease, transfer or other disposition of machinery, parts and equipment no
longer used or useful in the conduct of the business of the Borrower or any of
its Subsidiaries;


 


(v)                                 the
sale, lease or transfer of property or assets between and among the Borrower
and its Subsidiaries; and


 


(vi)                              the sale, lease or
transfer of property or assets not to exceed 15% of Consolidated Net Tangible
Assets (determined at the time of such sale, lease or transfer) in the
aggregate in any fiscal year; or


 


(b)                                 (i) purchase, lease or otherwise acquire (in a
single transaction or a series of related transactions) substantially all of
the property or assets of any Person (other than in connection with investments
or acquisitions permitted pursuant to Section 6.5) or (ii) enter into any transaction of merger or
consolidation, except for (A) investments or acquisitions permitted pursuant to
Section 6.5, and (B) the merger or consolidation of the Borrower
and any of its Subsidiaries or by and between any of the Subsidiaries; provided
that if the Borrower is a party thereto, the Borrower will be the surviving
corporation.


 


6.5                                 Advances, Investments and Loans.


 


At any time make or permit to remain
outstanding any loan or advance to, or guarantee, endorse or otherwise be or
become contingently liable, directly or indirectly, in connection with the
obligations, stock or dividends of, or own, purchase or acquire any stock,
obligations or


 


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Securities
of, or any other interest in, or make any capital contribution to
(collectively, “Investments”), any Person, except that (each of the
following, collectively, “Permitted Investments”):


 


(a)                                  the Borrower may make or permit to remain
outstanding Investments to or in any Subsidiary and any Subsidiary may make or
permit to remain outstanding Investments to or in the Borrower or any other
Subsidiary;


 


(b)                                 the Borrower and any Subsidiary may make
Permitted Acquisitions;


 


(c)                                  the Borrower and its Subsidiaries may own,
purchase or acquire cash and Cash Equivalents;


 


(d)                                 the Borrower and its Subsidiaries may make loans
and advances to employees (other than any officer or director) of the Borrower
or its Subsidiaries in an aggregate amount not to exceed $5,000,000 at any time
outstanding;


 


(e)                                  the
Borrower and its Subsidiaries may make loans to and enter into Guaranty
Obligations for the account of distributors in the ordinary course of business
in an amount as to each distributor not in excess of the greater of purchases
for the preceding three months or projected three months of purchases;


 


(f)                                    the
Borrower and any Subsidiary may make Investments in an aggregate amount at any
time not to exceed $50,000,000 in any evidence of Indebtedness the interest on
which is exempt from federal income taxation under the Code, of issuers with
long-term debt ratings, at any date of determination, P-2 (or the equivalent
thereof) or better by Moody’s, or A-2 (or the equivalent thereof) or better by
S&P and/or auction rate preferred stock issued by a corporation or
association organized and existing under the laws of any State of the U.S. or
the District of Columbia, with a long-term debt rating, at any date of
determination, of P-2 (or the equivalent thereof) or better by Moody’s, or A-2
(or the equivalent thereof) or better by S&P;


 


(g)                                 Pearl
City Insurance Company, a Vermont corporation, may make Investments that
otherwise would be Permitted Investments but for the maturity limitations set
forth for any of such investments;


 


(h)                                 Investments
permitted under Section 6.4; and


 


(i)                                     the Borrower and Subsidiaries may make or permit
to remain outstanding any Investment in any other Person, which is not
otherwise included in the foregoing clauses (a) through (h), inclusive, provided that the aggregate of such Investments shall not, at any
time, exceed 15% of Consolidated Net Tangible Assets determined at such
time.


 


Investments shall be valued at cost, less any
return of capital thereon.


 


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6.6                                 Transactions with Affiliates.


 


Enter
into directly or indirectly any Material transaction or Material group of
related transactions (including without limitation the purchase, lease, sale or
exchange of properties of any kind or the rendering of any service) with any
Affiliate (other than the Borrower or another Subsidiary or an employee stock
ownership plan for the benefit of employees of the Borrower or any Subsidiary),
except pursuant to the reasonable requirements of the Borrower’s or such
Subsidiary’s business and upon fair and reasonable terms no less favorable to
the Borrower or such Subsidiary than would be obtainable in a comparable arm’s-length
transaction with a Person not an Affiliate or, if such transaction is not one
which by its nature could be obtained from any such Person, is on fair and
reasonable terms.


 


6.7                                 Fiscal Year; Organizational Documents.


 


Neither change its fiscal year nor amend,
modify or change its articles of incorporation (or corporate charter or other
similar organizational document) or bylaws (or other similar document) in any
manner materially adverse to the interests of the Lenders without the prior
written consent of the Administrative Agent.


 


6.8                                 Limitation on Restricted Actions.


 


Directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any
Subsidiary to (a) pay dividends or make any other distributions to the Borrower
on its Capital Stock or with respect to any other interest or participation in,
or measured by, its profits, (b) pay any Indebtedness or other obligation owed
to the Borrower, (c) make loans or advances to the Borrower, (d) sell, lease or
transfer any of its properties or assets to the Borrower, or (e) act as a
guarantor of the Borrower pursuant to the Credit Documents or any renewals,
refinancings, exchanges, refundings or extension thereof, except (in respect of
any of the matters referred to in clauses (a) through (d) above) for (i) such
encumbrances or restrictions existing under or by reason of (A) this Credit
Agreement and the other Credit Documents, (B) applicable law, (C) any Permitted
Lien or any document or instrument governing any Permitted Lien (provided
that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien), (D) any agreement relating to any Indebtedness
issued by a Subsidiary on or prior to the date on which such Subsidiary became
a Subsidiary or was acquired by the Borrower (other than Indebtedness issued as
consideration in, or to provide all or any portion of the funds utilized to
consummate, the transaction or series of related transactions in contemplation
of or pursuant to which such Person became a Subsidiary or was acquired by the
Borrower) and outstanding on such date, and (E) customary non-assignment
provisions in leases governing leasehold interests to the extent such
provisions restrict the transfer of the lease, (ii) any requirement that a
non-wholly-owned Subsidiary make Restricted Payments to all owners of its
equity interests, including owners other than the Borrower or other
Subsidiaries, in accordance with their respective equity interests, and (iii) a
requirement that a Subsidiary give the holders of any Indebtedness of such
Subsidiary not more than thirty days prior written notice of its intention to
pay a dividend to its stockholders.


 


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6.9                                 Restricted Payments.


 


Directly or indirectly, declare, order, make
or set apart any sum for or pay any Restricted Payment, except (a) to make dividends payable solely in the same
class of Capital Stock of such Person, (b)
to make dividends or other distributions payable to the Borrower or other
Subsidiaries and (c) the Borrower may make other Restricted Payments so long
as, after giving effect thereto on a Pro Forma Basis, no Default or Event of
Default shall exist.


 


6.10                           Sale Leasebacks.


 


Directly or indirectly, become or remain
liable for amounts outstanding in excess of $50,000,000 at any time outstanding
as lessee or as guarantor or other surety with respect to any lease, whether an
operating lease or a Capital Lease, of any property (whether real, personal or
mixed), whether now owned or hereafter acquired, (a) which the Borrower has
sold or transferred or is to sell or transfer or (b) which the Borrower intends
to use for substantially the same purpose as any other property which has been
sold or is to be sold or transferred by the Borrower in connection with such
lease.


 


6.11                           No Further Negative Pledges.


 


Enter into, assume or become subject to any
agreement (a) prohibiting or otherwise restricting the creation or assumption
of any Lien upon its properties or assets, whether now owned or hereafter
acquired, in favor of the Administrative Agent (for the benefit of the Lenders)
to secure the Credit Party Obligations (provided that any restriction on the
amount of Indebtedness under this Credit Agreement and the other Credit
Documents that can be secured shall not be deemed a restriction prohibited by
this Section 6.11 so long as the permitted amount of secured
Indebtedness is equal to or greater than the aggregate Commitments hereunder
including any Additional Loans), or (b) requiring the grant of any security for
any obligation if security is given for some other obligation, except in
connection with any Permitted Lien or any document or instrument governing any
Permitted Lien, provided that any such restriction contained therein
relates only to the asset or assets subject to such Permitted Lien.


 


SECTION 7

EVENTS OF DEFAULT


 


7.1                                 Events of Default.


 


An Event of Default shall exist upon the
occurrence of any of the following specified events (each an “Event of
Default”):


 


(a)                                  The
Borrower shall fail to pay any principal on any Loan when due in accordance
with the terms hereof; or the Borrower shall fail to reimburse the Issuing
Lender for any LOC Obligations when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or any Fee or other
amount payable hereunder when due in accordance with the terms hereof and such
failure shall continue unremedied for three (3) Business Days (or any


 


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Guarantor shall fail to pay on
the Guaranty in respect of any of the foregoing or in respect of any other
Guaranty Obligations thereunder within the aforesaid period of time); or


 


(b)                                 Any
representation or warranty made or deemed made herein or in any of the other
Credit Documents or which is contained in any certificate, document or
financial or other statement furnished at any time under or in connection with
this Credit Agreement shall prove to have been incorrect, false or misleading
in any material respect on or as of the date made or deemed made; or


 


(c)                                  (i)
Any Credit Party shall fail to perform, comply with or observe any term,
covenant or agreement applicable to it contained in Sections 5.3(a), 5.4(a)
or 5.9 or in Section 6; or (ii) any Credit Party shall fail to
perform, comply with or observe any covenant or agreement contained in Section 5.1
and such failure shall continue unremedied for a period of five (5) Business
Days; or (iii) any Credit Party shall
fail to comply with any other covenant contained in this Credit Agreement or
the other Credit Documents (other than as described in Sections 7.1(a), 7.1(b),
7.1(c)(i) or 7.1(c)(ii) above), and in the event such breach or
failure to comply is capable of cure, is not cured within thirty (30) days of
its occurrence; or


 


(d)                                 Any
Credit Party or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness (other
than the Notes) in a principal amount outstanding of at least $30,000,000 in the
aggregate for the Credit Parties and their Subsidiaries beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness was created or (ii) default
in the observance or performance of any other agreement or condition relating
to any Indebtedness in a principal amount outstanding of at least $30,000,000
in the aggregate for the Credit Parties or their Subsidiaries or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Indebtedness (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 become due prior to its stated maturity; or


 


(e)                                  (i)
Any Credit Party or any of its Significant Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or any Credit Party or any of its Significant Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Credit Party or any of its Significant Subsidiaries any
case, proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such adjudication
or appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 consecutive days; or (iii) there shall be commenced against any
Credit Party or any of its Significant Subsidiaries any case, proceeding or
other action seeking


 


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issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) any Credit Party
or any of its Significant Subsidiaries shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in clauses (i), (ii), or (iii) above; or (v) any Credit Party or any
of its Significant Subsidiaries shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due (for
purposes hereof, “Significant Subsidiary” means at any time, a Subsidiary of
the Borrower that accounts for more than (i) 15% of Consolidated Assets or
(ii) 15% of Consolidated Net Income); or


 


(f)                                    One
or more judgments or decrees shall be entered against any Credit Party or any
of its Subsidiaries involving in the aggregate a liability (to the extent not
paid when due or covered by insurance) of $30,000,000 or more and all such
judgments or decrees shall not have been paid and satisfied, vacated,
discharged, stayed or bonded pending appeal within 45 days from the entry
thereof; or


 


(g)                                 (i)
Any Person shall engage in any non-exempt “prohibited transaction” (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any “accumulated funding deficiency” (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in
favor of the PBGC or a Plan (other than a Permitted Lien) shall arise on the
assets of any Credit Party or any ERISA Affiliate, (iii) a Reportable Event
shall occur with respect to, or proceedings under Title IV of ERISA shall
commence to have a trustee appointed, or a trustee shall be appointed under
Title IV of ERISA, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, or
(v) any Credit Party or any ERISA Affiliate shall incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, any
Multiemployer Plan; and in each case in clauses (i) through (v) above, such
event or condition, together with all other such events or conditions, if any,
would reasonably be expected to have a Material Adverse Effect; or


 


(h)                                 There
shall occur a Change of Control; or


 


(i)                                     The
Guaranty or any provision thereof shall cease to be in full force and effect or
any Guarantor or any Person acting by or on behalf of any Guarantor shall deny
or disaffirm any Guarantor’s obligations under the Guaranty; or


 


(j)                                     The
Credit Agreement or any Note shall fail to be in full force and effect or to
give the Administrative Agent and/or the Lenders the rights, powers and
privileges purported to be created thereby, or any Credit Party or any Person
acting by or on behalf of any Credit Party shall deny or disaffirm any Credit
Party Obligation.


 


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7.2                                 Acceleration; Remedies.


 


Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, or upon the
request and direction of the Required Lenders shall, by written notice to the
Borrower take any of the following actions (including any combination of such
actions):


 


(a)                                  Termination of
Commitments.  Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.


 


(b)                                 Acceleration.  Declare the unpaid principal of and any
accrued interest in respect of all Loans and any and all other indebtedness or
obligations (including, without limitation, Fees) of any and every kind owing
by any Credit Party to the Administrative Agent and/or any of the Lenders
hereunder to be due and direct the Borrower to pay to the Administrative Agent
cash collateral as security for the LOC Obligations for subsequent drawings
under then outstanding Letters of Credit an amount equal to 105% of the maximum
amount which may be drawn under Letters of Credit then outstanding, whereupon
the same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Credit Party.


 


(c)                                  Enforcement of
Rights.  Exercise any and all rights
and remedies created and existing under the Credit Documents, whether at law or
in equity.


 


(d)                                 Rights Under
Applicable Law.  Exercise any and all
rights and remedies available to the Administrative Agent or the Lenders under
applicable law.


 


Notwithstanding the foregoing, if an Event of Default specified in Section
7.1(e) shall occur, then the Commitments shall automatically terminate and
all Loans, all accrued interest in respect thereof, all accrued and unpaid Fees
and other indebtedness or obligations owing to the Administrative Agent and/or
any of the Lenders hereunder automatically shall immediately become due and
payable without presentment, demand, protest or the giving of any notice or
other action by the Administrative Agent or the Lenders, all of which are
hereby waived by the Borrower.


 


7.3                                 Rescission of Acceleration.


 


Anything in Section 7.2 to the contrary notwithstanding, the
Administrative Agent shall at the direction of the Required Lenders, rescind
and annul any acceleration pursuant to Section 7.2(b) by written
instrument filed with the Borrower, provided, however, that at the time such
acceleration is so rescinded and annulled:


 


(a)                                  all
past due interest and principal, if any, on the Notes and all other sums
payable under this Credit Agreement (except any principal and interest on any
Notes which has become due and payable solely by reason of such acceleration)
shall have been duly paid; and


 


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(b)                                 no
other Event of Default shall have occurred and be continuing which shall not
have been waived in accordance with this Credit Agreement.


 


SECTION 8

AGENCY PROVISIONS


 


8.1                                 Appointment.


 


Each Lender hereby irrevocably designates and
appoints Wachovia as the Administrative Agent of such Lender under this Credit
Agreement, and each such Lender irrevocably authorizes Wachovia, as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Credit Agreement and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Credit Agreement, together with such other powers as are reasonably
incidental thereto.  Notwithstanding any
provision to the contrary elsewhere in this Credit Agreement, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Credit Agreement or
otherwise exist against the Administrative Agent.


 


8.2                                 Delegation of Duties.


 


The Administrative Agent may execute any of
its duties under this Credit Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties.  The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.  Without limiting the foregoing, the
Administrative Agent may appoint one of its affiliates as its agent to perform
the functions of the Administrative Agent hereunder relating to the advancing
of funds to the Borrower and distribution of funds to the Lenders and to
perform such other related functions of the Administrative Agent hereunder as
are reasonably incidental to such functions.


 


8.3                                 Exculpatory Provisions.


 


Neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be (a) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Credit Agreement (except for
its or such Person’s own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Credit Party or any officer thereof
contained in this Credit Agreement or in any certificate, report, statement or
other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Credit Agreement or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of any of the Credit Documents or for any failure of any Credit Party to perform
its obligations hereunder or thereunder. 
The Administrative Agent shall not be under any obligation to any Lender
to ascertain or to inquire as


 


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to the observance or
performance by any Credit Party of any of the agreements contained in, or
conditions of, this Credit Agreement, or to inspect the properties, books or
records of any Credit Party.


 


8.4                                 Reliance by Administrative Agent.


 


The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it in good faith to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Credit Parties), independent accountants and other experts selected by
the Administrative Agent.  The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless (a) a written notice of assignment, negotiation
or transfer thereof shall have been filed with the Administrative Agent and (b)
the Administrative Agent shall have received the written agreement of such
assignee to be bound hereby as fully and to the same extent as if such assignee
were an original Lender party hereto, in each case in form satisfactory to the
Administrative Agent.  The Administrative
Agent shall be fully justified in failing or refusing to take any action under
this Credit Agreement unless it shall first receive such advice or concurrence
of the Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action.  The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under any of the Credit Documents in accordance with a request of the
Required Lenders or all of the Lenders, as may be required under this Credit
Agreement, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Notes.


 


8.5                                 Notice of Default.


 


The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the Administrative
Agent has received notice from a Lender or the Borrower referring to this
Credit Agreement, describing such Default or Event of Default and stating that
such notice is a “notice of default”.  If
the Administrative Agent receives such a notice, the Administrative Agent shall
give prompt notice thereof to the Lenders. 
The Administrative Agent shall take such action with respect to such
Default or Event of Default as the Required Lenders shall reasonably direct; provided,
however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders except to the extent that this Credit Agreement
expressly requires that such action be taken, or not taken, only with the
consent or upon the authorization of the Required Lenders, or all of the
Lenders, as the case may be.


 


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8.6                                 Non-Reliance on Administrative Agent and Other
Lenders.


 


Each Lender expressly acknowledges that
neither the Administrative Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any representation or warranty
to it and that no act by the Administrative Agent hereinafter taken, including
any review of the affairs of the Credit Parties, shall be deemed to constitute
any representation or warranty by the Administrative Agent to any Lender.  Each Lender represents to the Administrative
Agent that 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 appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Credit Parties and made its own decision to make its
Loans hereunder and enter into this Credit Agreement.  Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Credit Agreement, and
to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Credit Parties. 
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Credit Parties which may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates.


 


8.7                                 Indemnification.


 


The Lenders agree to indemnify the
Administrative Agent in its capacity hereunder (to the extent not reimbursed by
the Credit Parties and without limiting the obligation of the Credit Parties to
do so), ratably according to their respective Commitment Percentages in effect
on the date on which indemnification is sought under this Section, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of any
Credit Document or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing; provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent resulting from the Administrative Agent’s gross negligence or willful
misconduct, as determined by a court of competent jurisdiction pursuant to a
final non-appealable judgment.  The
agreements in this Section 8.7 shall survive the termination of
this Credit Agreement and payment of the Loans and all other amounts payable
hereunder.


 


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8.8                                 Administrative Agent in Its Individual Capacity.


 


The Administrative Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Borrower as though the Administrative Agent were not the
Administrative Agent hereunder.  With
respect to its Loans made or renewed by it and any Note issued to it, the
Administrative Agent shall have the same rights and powers under this Credit
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms “Lender” and “Lenders” shall include the
Administrative Agent in its individual capacity.


 


8.9                                 Successor Administrative Agent.


 


The Administrative Agent may resign as
Administrative Agent upon 30 days’ prior notice to the Borrower and the
Lenders.  If the Administrative Agent
shall resign as Administrative Agent under this Credit Agreement and the other
Credit Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent’s appointment
as such shall be subject to the approval of the Borrower (so long as no Event
of Default has occurred and is continuing), whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent, and
the term “Administrative Agent” shall mean such successor agent effective upon
such appointment and approval, and the former Administrative Agent’s rights,
powers and duties as Administrative Agent shall be terminated, without any
other or further act or deed on the part of such former Administrative Agent or
any of the parties to this Credit Agreement or any holders of the Notes.  After any retiring Administrative Agent’s
resignation as Administrative Agent, the provisions of this Section 8.9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Credit Agreement.


 


8.10                           Patriot Act Notice.


 


Each Lender and the Administrative Agent (for itself and not on behalf
of any other party) hereby notifies the Borrower that, pursuant to the
requirements of the USA Patriot Act, Title III of Pub. L. 107-56, signed into
law October 26, 2001 (the “Patriot Act”), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Patriot Act.


 


8.11                           Other Agents, Arrangers and Managers.


 


None of the Lenders or other Persons
identified on the front page or signature pages of this Credit Agreement as “Syndication
Agent,” “Documentation Agent,” “Lead Arranger” or “Book Runner” shall have any
right, power, obligation, liability, responsibility or duty under this Credit
Agreement other than those applicable to all Lenders as such.  Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. 
Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Credit Agreement or in taking or not taking action hereunder.


 


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SECTION 9

GUARANTY


 


9.1                                 The Guaranty.


 


To induce the Lenders to enter into this Credit Agreement and any
Hedging Agreement Provider to enter into any Hedging Agreement and to extend
credit hereunder and thereunder and in recognition of the direct benefits to be
received by the Guarantors from the Extensions of Credit hereunder and any
Hedging Agreement, each of the Guarantors hereby agrees with the Administrative
Agent and the Lenders as follows:  the
Guarantor hereby unconditionally and irrevocably jointly and severally
guarantees as primary obligor and not merely as surety the full and prompt
payment when due, whether upon maturity, by acceleration or otherwise, of any
and all indebtedness of the Borrower owed to the Administrative Agent, the
Lenders and the Hedging Agreement Providers under the Credit Documents.  If any or all of such indebtedness becomes
due and payable hereunder or under any Hedging Agreement with a Hedging Agreement
Provider, each Guarantor unconditionally promises to pay such indebtedness to
the Administrative Agent, the Lenders, the Hedging Agreement Providers, or
their respective order, or demand, together with any and all reasonable
expenses which may be incurred by the Administrative Agent, the Lenders or the
Hedging Agreement Providers in collecting any of the Credit Party
Obligations.  The word “indebtedness” is
used in this Article IX in its most comprehensive sense and includes any and
all advances, debts, obligations and liabilities of the Borrower and the
Guarantors under the Credit Documents, including specifically all Credit Party
Obligations, arising in connection with this Credit Agreement, the other Credit
Documents or Hedging Agreement with a Hedging Agreement Provider, in each case,
heretofore, now, or hereafter made, incurred or created, whether voluntarily or
involuntarily, absolute or contingent, liquidated or unliquidated, determined
or undetermined, whether or not such indebtedness is from time to time reduced,
or extinguished and thereafter increased or incurred, whether the Borrower and
the Guarantors may be liable individually or jointly with others, whether or
not recovery upon such indebtedness may be or hereafter become barred by any statute
of limitations, and whether or not such indebtedness may be or hereafter become
otherwise unenforceable.


 


Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents, to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable law relating to fraudulent
conveyances or transfers) then the obligations of each such Guarantor hereunder
shall be limited to the maximum amount that is permissible under applicable law
(including, without limitation, the Bankruptcy Code or its non-U.S.
equivalent).


 


9.2                                 Bankruptcy.


 


Additionally, each of the Guarantors unconditionally and irrevocably
guarantees jointly and severally the payment of any and all Credit Party
Obligations of the Borrower to the Lenders and any Hedging Agreement Provider
whether or not due or payable by the Borrower upon the


 


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occurrence of any of the events
specified in Section 7.1(e) as applicable to the Borrower or any
Subsidiaries of the Borrower, and unconditionally promises to pay such Credit
Party Obligations to the Administrative Agent for the account of the Lenders
and to any such Hedging Agreement Provider, or order, on demand, in lawful
money of the United States.  Each of the
Guarantors further agrees that to the extent that the Borrower or a Guarantor
shall make a payment or a transfer of an interest in any property to the
Administrative Agent, any Lender or any Hedging Agreement Provider, which
payment or transfer or any part thereof is subsequently invalidated, declared
to be fraudulent or preferential, or otherwise is avoided, and/or required to
be repaid to the Borrower or a Guarantor, the estate of the Borrower or a
Guarantor, a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or other applicable law or equitable cause,
then to the extent of such avoidance or repayment, the obligation or part
thereof intended to be satisfied shall be revived and continued in full force
and effect as if said payment had not been made.


 


9.3                                 Nature of Liability.


 


The liability of each Guarantor hereunder is exclusive and independent
of any security for or other guaranty of the Credit Party Obligations of the
Borrower whether executed by any such Guarantor, any other guarantor or by any
other party, and no Guarantor’s liability hereunder shall be affected or
impaired by (a) any direction as to application of payment by the Borrower or
by any other party, (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Credit Party
Obligations of the Borrower, (c) any payment on or in reduction of any such other
guaranty or undertaking, (d) any dissolution, termination or increase, decrease
or change in personnel by the Borrower, or (e) any payment made to the
Administrative Agent, the Lenders or any Hedging Agreement Provider on the
Credit Party Obligations that the Administrative Agent, such Lenders or such
Hedging Agreement Provider repay the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each of the Guarantors waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.


 


9.4                                 Independent Obligation.


 


The obligations of each Guarantor hereunder are independent of the
obligations of any other guarantor or the Borrower, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other guarantor or the Borrower and whether or
not any other Guarantor or the Borrower is joined in any such action or
actions.


 


9.5                                 Authorization.


 


Each of the Guarantors authorizes the Administrative Agent, each Lender
and each Hedging Agreement Provider without notice or demand (except as shall
be required by applicable law and cannot be waived), and without affecting or
impairing its liability hereunder, from time to time to (a) renew, compromise,
extend, increase, accelerate or otherwise change the time for payment of, or
otherwise change the terms of the Credit Party Obligations or any part


 


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thereof in accordance with this
Credit Agreement and any Hedging Agreement, as applicable, including any
increase or decrease of the rate of interest thereon, (b) take and hold
security from any Guarantor or any other party for the payment of this Guaranty
or the Credit Party Obligations and exchange, enforce waive and release any
such security, (c) apply such security and direct the order or manner of sale
thereof as the Administrative Agent and the Lenders in their discretion may
determine and (d) release or substitute any one or more endorsers, Guarantors,
the Borrower or other obligors.


 


9.6                                 Reliance.


 


It is not necessary for the Administrative Agent, the Lenders or any
Hedging Agreement Providers to inquire into the capacity or powers of the
Borrower or the officers, directors, members, partners or agents acting or
purporting to act on its behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.


 


9.7                                 Waiver.


 


(a)                                  Each
of the Guarantors waives any right (except as shall be required by applicable
law and cannot be waived) to require the Administrative Agent, any Lender or
any Hedging Agreement Provider to (i) proceed against the Borrower, any other
guarantor or any other party, (ii) proceed against or exhaust any security held
from the Borrower, any other guarantor or any other party, or (iii) pursue any
other remedy in the Administrative Agent’s, any Lender’s or any Hedging
Agreement Provider’s power whatsoever. 
Each of the Guarantors waives any defense based on or arising out of any
defense of the Borrower, any other guarantor or any other party other than
payment in full of the Credit Party Obligations, including without limitation
any defense based on or arising out of the disability of the Borrower, any
other guarantor or any other party, or the unenforceability of the Credit Party
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower other than payment in full of the Credit Party
Obligations.  The Administrative Agent or
any of the Lenders may, at their election, foreclose on any security held by
the Administrative Agent or a Lender by one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable (to the
extent such sale is permitted by applicable law), or exercise any other right
or remedy the Administrative Agent and any Lender may have against the Borrower
or any other party, or any security, without affecting or impairing in any way
the liability of any Guarantor hereunder except to the extent the Credit Party
Obligations have been paid in full.  Each
of the Guarantors, to the extent permitted by law, waives any defense arising
out of any such election by the Administrative Agent and each of the Lenders,
even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of the Guarantors against
the Borrower or any other party or any security.


 


(b)                                 Each
of the Guarantors waives all presentments, demands for performance, protests
and notices, including without limitation notices of nonperformance, notice of
protest, notices of dishonor, notices of acceptance of this Guaranty, and
notices of the existence, creation or incurring of new or additional Credit


 


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Party Obligations.  Each
Guarantor assumes all responsibility for being and keeping itself informed of
the Borrower’s financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Credit Party Obligations and the
nature, scope and extent of the risks which such Guarantor assumes and incurs
hereunder, and agrees that neither the Administrative Agent nor any Lender
shall have any duty to advise such Guarantor of information known to it
regarding such circumstances or risks.


 


(c)                                  Each
of the Guarantors hereby agrees it will not exercise any rights of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the U.S. Bankruptcy Code, or otherwise) to
the claims of the Lenders or the Hedging Agreement Provider against the
Borrower or any other guarantor of the Credit Party Obligations of the Borrower
owing to the Lenders or such Hedging Agreement Provider (collectively, the “Other
Parties”) and all contractual, statutory or common law rights of
reimbursement, contribution or indemnity from any Other Party which it may at
any time otherwise have as a result of this Guaranty until such time as the
Credit Party Obligations shall have been paid in full, no Credit Document or
Hedging Agreement with a Hedging Agreement Provider remains in effect and the
Commitments have been terminated.  Each
of the Guarantors hereby further agrees not to exercise any right to enforce
any other remedy which the Administrative Agent, the Lenders or any Hedging
Agreement Provider now have or may hereafter have against any Other Party, any
endorser or any other guarantor of all or any part of the Credit Party
Obligations of the Borrower and any benefit of, and any right to participate
in, any security or collateral given to or for the benefit of the Lenders
and/or the Hedging Agreement Providers to secure payment of the Credit Party
Obligations of the Borrower until such time as the Credit Party Obligations
shall have been paid in full, no Credit Document or Hedging Agreement with a
Hedging Agreement Provider remains in effect and the Commitments have been
terminated.


 


9.8                                 Limitation on Enforcement.


 


The Lenders and the Hedging Agreement Providers agree that this
Guaranty may be enforced only by the action of the Administrative Agent acting
upon the instructions of the Required Lenders or any such Hedging Agreement
Provider (only with respect to obligations under the applicable Hedging
Agreement entered into with such Hedging Agreement Provider) and that no Lender
or Hedging Agreement Provider shall have any right individually to seek to
enforce or to enforce this Guaranty, it being understood and agreed that such
rights and remedies may be exercised by the Administrative Agent for the
benefit of the Lenders under the terms of this Credit Agreement and for the
benefit of any Hedging Agreement Provider under any Hedging Agreement provided
by such Hedging Agreement Provider.  The
Lenders and the Hedging Agreement Providers further agree that this Guaranty
may not be enforced against any director, officer, employee or stockholder of
the Guarantors.


 


9.9                                 Confirmation of Payment.


 


The Administrative Agent and the Lenders will, upon request after
payment of the Credit Party Obligations under the Credit Documents which are
the subject of this Guaranty and


 


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termination of the Commitments
relating thereto, confirm to the Borrower, the Guarantors or any other Person
that the Credit Party Obligations under the Credit Documents have been paid in
full and the Commitments relating thereto terminated, subject to the provisions
of Section 9.2.


 


SECTION 10

MISCELLANEOUS


 


10.1                           Amendments and Waivers.


 


Neither this Credit Agreement, nor any of the
other Credit Documents, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this Section.  The Required Lenders may,
or, with the written consent of the Required Lenders, the Administrative Agent
may, from time to time, (a) enter into with the Borrower written
amendments, supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Credit Agreement or
the other Credit Documents or changing in any manner the rights of the Lenders
or of the Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders may specify in such instrument, any of the
requirements of this Credit Agreement or the other Credit Documents or any
Default or Event of Default and its consequences; provided, however,
that, subject to Section 7.3, no such waiver and no such amendment,
waiver, supplement, modification or release shall:


 


(i)                                     reduce the amount
or extend the scheduled date of maturity of any Loan or Note or any installment
thereon, or reduce the stated rate of any interest or fee payable hereunder
(except in connection with a waiver of interest at the increased post-default
rate) or extend the scheduled date of any payment thereof or increase the
amount or extend the expiration date of any Lender’s Commitment, in each case
without the written consent of each Lender directly affected thereby; or


 


(ii)                                  amend, modify or
waive any provision of this Section 10.1 or reduce the percentage
specified in the definition of Required Lenders, without the written consent of
all the Lenders; or


 


(iii)                               amend, modify or waive
any provision of Section 9 without the written consent of the then
Administrative Agent; or


 


(iv)                              release all or
substantially all of the Guarantors from their obligations under the Guaranty,
without the written consent of all the Lenders; or


 


(v)                                 amend, modify or waive
any provision of the Credit Documents requiring consent, approval or request of
the Required Lenders or all Lenders, without the written consent of the
Required Lenders or of all Lenders as appropriate; or


 


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(vi)                              amend or modify the
definition of Credit Party Obligations to delete or exclude any obligation or
liability described therein without the written consent of each Lender and each
Hedging Agreement Provider directly affected thereby; or


 


(vii)                           amend, modify or waive the
order in which Credit Party Obligations are paid in Section 2.12(b)
without the written consent of each Lender and each Hedging Agreement Provider
directly affected thereby;


 


provided, further,
that no amendment, waiver or consent affecting the rights or duties of the
Administrative Agent under any Credit Document shall in any event be effective,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required hereinabove to take such action.


 


Any such waiver, any such amendment,
supplement or modification and any such release shall apply equally to each of
the Lenders and shall be binding upon the Borrower, the Lenders, the other
Credit Parties, the Administrative Agent and all future holders of the Notes.  In the case of any waiver, the Borrower, the
other Credit Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the
outstanding Loans and Notes and other Credit Documents, and any Default or
Event of Default permanently waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.


 


The Borrower and the Lenders hereby authorize
the Administrative Agent to modify this Credit Agreement by unilaterally
amending or supplementing Schedule 2.1(a) from time to time in the
manner requested by the Borrower, the Administrative Agent or any Lender in
order to reflect any assignments or transfers of the Loans as provided for
hereunder; provided  further, however, that the
Administrative Agent shall promptly deliver a copy of any such modification to
the Borrower and each Lender.


 


Notwithstanding the fact that the consent of
all the Lenders is required in certain circumstances as set forth above, (A)
each Lender is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender acknowledges that
the provisions of Section 1126(c) of the Bankruptcy Code supersedes the
unanimous consent provisions set forth herein and (B) the Required Lenders may
consent to allow a Credit Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding.


 


The Borrower shall be permitted to replace with a replacement financial
institution acceptable to the Administrative Agent any Lender (other than
Wachovia Bank, National Association) that fails to consent to any proposed
amendment, modification, termination, waiver or consent with respect to any
provision hereof or of any other Credit Document that requires the unanimous
approval of all of the Lenders, the approval of all of the Lenders affected
thereby or the approval of a class of Lenders, in each case in accordance with
the terms of this Section 10.1, so long as the consent of the
Required Lenders shall have been obtained with respect to such amendment,
modification, termination, waiver or consent; provided that (1) such
replacement does not conflict with any Requirement of Law, (2) the replacement
financial institution shall purchase, at par, all Loans and other amounts owing
to such replaced Lender on or prior to the


 


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date of replacement, (3) the
replacement financial institution shall approve the proposed amendment,
modification, termination, waiver or consent, (4) the Borrower shall be liable
to such replaced Lender under Section 2.17 if any LIBOR Rate Loan owing
to such replaced Lender shall be purchased other than on the last day of the
Interest Period relating thereto, (5) the replaced Lender shall be obligated to
make such replacement in accordance with the provisions of Section 10.6
(provided that the Borrower shall be obligated to pay the registration and
processing fee referred to therein), (6) until such time as such replacement
shall be consummated, the Borrower shall pay to the replaced Lender all
additional amounts (if any) required pursuant to Section 2.15, 2.16
or 2.18(a), as the case may be, (7) the Borrower provides at least three
(3) Business Days’ prior notice to such replaced Lender, and (8) any such
replacement shall not be deemed to be a waiver of any rights that the Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender.  If any replaced Lender fails to
execute the agreements required under Section 10.6 in connection with an
assignment pursuant to this Section 10.1, the Borrower may, upon two (2)
Business Days’ prior notice to such replaced Lender, execute such agreements on
behalf of such replaced Lender.  A Lender
shall not be required to be replaced if, prior thereto, as a result of a waiver
by such Lender or otherwise, the circumstances entitling the Borrower to
require such replacement cease to apply.


 


10.2                           Notices.


 


(a)                                  All notices, requests
and demands to or upon the respective parties hereto to be effective shall be
in writing (including by telecopy or other electronic communications as
provided below), and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made (a) when delivered by hand, (b) when
transmitted via telecopy (or other facsimile device) to the number set out
herein, (c) the day following the day on which the same has been delivered
prepaid (or pursuant to an invoice arrangement) to a reputable national
overnight air courier service, or (d) the third Business Day following the day
on which the same is sent by certified or registered mail, postage prepaid, in
each case addressed as follows in the case of the Borrower, the other Credit
Parties and the Administrative Agent, and as set forth on Schedule 10.2
in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto and any future Lenders or holders of
the Notes:


 


	
  if to the Borrower:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HNI Corporation

  
	
   

  	
  414 East Third Street

  
	
   

  	
  Muscatine,
  Iowa 52761-0071

  
	
   

  	
  Attention:

  	
   

  	
  Melinda C. Ellsworth

  
	
   

  	
   

  	
   

  	
  Vice President, Treasurer

  and Investor Relations

  
	
   

  	
  Telephone:

  	
   

  	
  (563) 264-7406

  
	
   

  	
  Telecopy:

  	
   

  	
  (563) 264-7655

  



 


85





















 


	
  with a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  HNI Corporation

  
	
   

  	
  414 East Third Street

  
	
   

  	
  Muscatine, Iowa 52761-0071

  
	
   

  	
  Attention:

  	
   

  	
  Larry O. Davis

  Treasury Manager

  
	
   

  	
  Telephone:

  	
   

  	
  (563) 262-6999

  
	
   

  	
  Telecopy:

  	
   

  	
  (563) 264-7217

  
	
   

  	
   

  	
   

  	
   

  
	
  if to the Administrative Agent:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Wachovia Bank, National Association

  
	
   

  	
  201 South College Street

  
	
   

  	
  NC0680/CP8

  	
   

  	
   

  
	
   

  	
  Charlotte, North Carolina 28288-0608

  
	
   

  	
  Attention:

  	
   

  	
  Syndication Agency Services

  
	
   

  	
  Telephone:

  	
   

  	
  (704) 374-2698

  
	
   

  	
  Telecopy:

  	
   

  	
  (704) 383-0288

  
	
   

  	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Wachovia Bank, National Association

  
	
   

  	
  301 South College Street NC0760

  
	
   

  	
  One Wachovia Center, 6th Floor

  
	
   

  	
  Charlotte, North Carolina 28288-0760

  
	
   

  	
  Attention:

  	
   

  	
  Richard E. Anglin III

  
	
   

  	
  Telephone:

  	
   

  	
  (704) 383-3776

  
	
   

  	
  Telecopy:

  	
   

  	
  (704) 383-6647

  



 


(b)                                 Notices
and other communications to the Lenders or the Administrative Agent 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 pursuant to Section 2 if such Lender, as
applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Section by electronic communication.  The Administrative Agent or the Borrower 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


 


86





















 


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.


 


10.3                           No Waiver; Cumulative Remedies.


 


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


 


10.4                           Survival of Representations and Warranties.


 


All representations and warranties made
hereunder and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of
this Credit Agreement and the Notes and the making of the Loans; provided
that all such representations and warranties shall terminate on the date upon
which the Commitments have been terminated and all Credit Party Obligations have
been paid in full.


 


10.5                           Payment of Expenses and Taxes.


 


The Credit Parties jointly and severally
agree (a) to pay or reimburse the Administrative Agent and the Lead Arranger
for all their reasonable out-of-pocket costs and expenses incurred in connection
with the development, preparation, negotiation, printing and execution of, and
any amendment, supplement or modification to, this Credit Agreement and the
other Credit Documents and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, together with the reasonable fees and
disbursements of counsel to the Administrative Agent and the Lead Arranger, (b)
to pay or reimburse each Lender and the Administrative Agent for all its costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Credit Agreement and the other Credit Documents, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and to the Lenders, (c) on demand, to pay, indemnify, and
hold each Lender and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, the Credit Documents, (d) to
pay or reimburse each Lender and the Administrative Agent for any reasonable
costs, fees or expenses incurred in connection with any investigation
(including, without limitation, background checks) performed to determine
whether the Borrower or any of its Subsidiaries or


 


87





















 


any officer, director,
shareholder or affiliate of the Borrower or any of its Subsidiaries has
violated any Anti-Terrorism Laws or other similar law and (e) to pay,
indemnify, and hold each Lender and the Administrative Agent and their
Affiliates harmless from and against, any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs
(including, without limitation, settlement costs), expenses or disbursements of
any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of the Credit Documents and any
such other documents and the use, or proposed use, of proceeds of the Loans
(other than, in each case, with respect to actions by the Borrower against any
Indemnified Party in which the Borrower is the prevailing party) (all of the
foregoing, collectively, the “Indemnified Liabilities”); provided,
however, that the Borrower shall not have any obligation hereunder to
the Administrative Agent or any Lender with respect to Indemnified Liabilities
arising from the gross negligence or willful misconduct of the Administrative
Agent or any such Lender, as determined by a court of competent jurisdiction
pursuant to a final non-appealable judgment. 
The agreements in this Section 10.5 shall survive repayment of
the Loans, Notes and all other Credit Party Obligations.


 


10.6                           Successors and Assigns; Participations; Purchasing Lenders.


 


(a)                                  This
Credit Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, all future Lenders and holders
of the Notes and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights or obligations under this
Credit Agreement or the other Credit Documents without the prior written
consent of each Lender.


 


(b)                                 Any
Lender may, in the ordinary course of its commercial banking business and in
accordance with applicable law, at any time sell to one or more banks or other
entities (“Participants”) participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of such Lender, or
any other interest of such Lender hereunder. 
In the event of any such sale by a Lender of participating interests to
a Participant, such Lender’s obligations under this Credit Agreement to the
other parties to this Credit Agreement shall remain unchanged, such Lender
shall remain solely responsible for the performance thereof, such Lender shall
remain the holder of any such Note for all purposes under this Credit
Agreement, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Credit Agreement. 
No Lender shall transfer or grant any participation under which the
Participant shall have rights to approve any amendment to or waiver of this
Credit Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) extend the scheduled maturity of any Loan or Note
or any installment thereon in which such Participant is participating, or
reduce the stated rate or extend the time of payment of interest or fees
thereon (except in connection with a waiver of interest at the increased
post-default rate) or reduce the principal amount thereof, or increase the
amount of the Participant’s participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default
shall not constitute a change in the terms of such participation, and that an
increase in any Commitment or Loan shall be permitted without consent of any
Participant if the Participant’s participation is not increased as a result
thereof), (ii) release all or substantially all of the Guarantors from their
obligations under the Guaranty or (iii) consent to the assignment or


 


88





















 


transfer by the Borrower of any
of its rights and obligations under this Credit Agreement.  In the case of any such participation, the
Participant shall not have any rights under this Credit Agreement or any of the
other Credit Documents (the Participant’s rights against such Lender in respect
of such participation to be those set forth in the agreement executed by such
Lender in favor of the Participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation; provided that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 10.5 with
respect to its participation in the Commitments and the Loans outstanding from
time to time; provided  further, that no Participant shall be
entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.


 


(c)                                  Any
Lender may, in the ordinary course of its lending business and in accordance
with applicable law, at any time, sell or assign to any Lender or any Affiliate
or Related Fund thereof and, with the consent of the Administrative Agent and,
so long as no Default or Event of Default has occurred and is continuing, the
Borrower (in each case, which consent shall not be unreasonably withheld or
delayed), to one or more additional banks or financial institutions or entities
(“Purchasing Lenders”), all or any part of its rights and obligations
under this Credit Agreement and the Notes in minimum amounts of $5,000,000 with
respect to its Commitment and Loans (or, if less, the entire amount of such
Lender’s obligations), pursuant to a Commitment Transfer Supplement, executed
by such Purchasing Lender and such transferor Lender (and, to the extent
required above, the Administrative Agent and the Borrower), and delivered to
the Administrative Agent for its acceptance and recording in the Register; provided
that, except in the case of an assignment of the entire remaining amount of the
transferor Lender’s Commitment and the Loans at the time owing to it, the
principal outstanding balance of the Loans of the transferor Lender subsequent
to the effectiveness of the Commitment Transfer Supplement shall not be less
than $5,000,000, unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise consent
(each such consent not to be unreasonably withheld or delayed).  Upon such execution, delivery, acceptance and
recording, from and after the Transfer Effective Date specified in such
Commitment Transfer Supplement, (x) the Purchasing Lender thereunder shall be a
party hereto and, to the extent provided in such Commitment Transfer
Supplement, have the rights and obligations of a Lender hereunder with a
Commitment as set forth therein, and (y) the transferor Lender thereunder
shall, to the extent provided in such Commitment Transfer Supplement, be
released from its obligations under this Credit Agreement (and, in the case of
a Commitment Transfer Supplement covering all or the remaining portion of a
transferor Lender’s rights and obligations under this Credit Agreement, such
transferor Lender shall cease to be a party hereto; provided, however,
that such Lender shall still be entitled to any indemnification rights
hereunder).  Such Commitment Transfer
Supplement shall be deemed to amend this Credit Agreement to the extent, and
only to the extent, necessary to reflect the addition of such Purchasing Lender
and the resulting adjustment of Commitment Percentages arising from the
purchase by such Purchasing Lender of all or a portion of the rights and
obligations of such transferor Lender under this Credit Agreement and the
Notes.  On or prior to the Transfer
Effective Date specified in such Commitment Transfer Supplement, the Borrower
shall execute and deliver to the Administrative Agent in exchange for any Notes
delivered to the


 


89





















 


Administrative Agent pursuant
to such Commitment Transfer Supplement new Notes to the order of such
Purchasing Lender, to the extent requested by such Purchasing Lender, in an
amount equal to the Commitment assumed by it pursuant to such Commitment
Transfer Supplement and, unless the transferor Lender has not retained a
Commitment hereunder, new Notes, if requested, to the order of the transferor
Lender in an amount equal to the Commitment retained by it hereunder.  Such new Notes shall be dated the Closing
Date and shall otherwise be in the form of the Notes replaced thereby.  The Notes surrendered by the transferor
Lender shall be returned by the Administrative Agent to the Borrower marked “canceled”.


 


(d)                                 The
Administrative Agent shall maintain at its address referred to in Section 10.2
a copy of each Commitment Transfer Supplement delivered to it and a register
(the “Register”) for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time.  The entries in
the Register shall be conclusive, in the absence of manifest error, and the Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Credit Agreement.  The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.


 


(e)                                  Upon
its receipt of a duly executed Commitment Transfer Supplement, together with
payment to the Administrative Agent by the transferor Lender or the Purchasing
Lender, as agreed between them, of a registration and processing fee of $3,500
for each Purchasing Lender listed in such Commitment Transfer Supplement and
the Notes subject to such Commitment Transfer Supplement, the Administrative
Agent shall (i) accept such Commitment Transfer Supplement, (ii) record the
information contained therein in the Register and (iii) give prompt notice of
such acceptance and recordation to the Lenders and the Borrower.


 


(f)                                    The
Borrower authorizes each Lender to disclose to any Participant or Purchasing
Lender (each, a “Transferee”) and any prospective Transferee any and all
financial information in such Lender’s possession concerning the Borrower and
its Affiliates which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Credit Agreement or which has been delivered to such
Lender by or on behalf of the Borrower in connection with such Lender’s credit
evaluation of the Borrower and its Subsidiaries prior to becoming a party to
this Credit Agreement, in each case subject to Section 10.15.


 


(g)                                 At
the time of each assignment pursuant to this Section 10.6 to a Person
which is not already a Lender hereunder and which is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code) for federal income
tax purposes, the respective assignee Lender shall provide to the Borrower and
the Administrative Agent the appropriate Internal Revenue Service Forms (and,
if applicable, a 2.18 Certificate) described in Section 2.18.


 


(h)                                 Nothing
herein shall prohibit any Lender from pledging or assigning any of its rights
under this Credit Agreement (including, without limitation, any right to
payment of principal and interest under any Note) to any Federal Reserve Bank
in accordance with applicable laws.


 


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(i)                                     Any
sale or assignment pursuant to this Section 10.6 shall contain a representation
and warranty by the Transferee to the effect that none of the funds, monies,
assets or other consideration to be used by it to make the purchase or
assignment of or to fund any Loan, LOC Obligation or other extension of credit
under this Credit Agreement or other Credit Documents constitutes “plan assets”
as defined in ERISA and that the rights benefits and interests of the
Transferee in and under this Credit Agreement and other Credit Documents will
not be “plan assets” under ERISA.


 


10.7                           Adjustments; Set-off.


 


(a)                                  Each
Lender agrees that if any Lender (a “Benefited Lender”) shall at any
time receive any payment of all or part of its Loans, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7.1(e), or otherwise) in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender’s Loans, or interest thereon, such Benefited
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender’s Loan, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefited Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.  The
Borrower agrees that each Lender so purchasing a portion of another Lender’s
Loans may exercise all rights of payment (including, without limitation, rights
of set-off) with respect to such portion as fully as if such Lender were the
direct holder of such portion.


 


(b)                                 In
addition to any rights and remedies of the Lenders provided by law (including,
without limitation, other rights of set-off), each Lender shall have the right,
without prior notice to any Credit Party, any such notice being expressly
waived by the Credit Parties to the extent permitted by applicable law, upon
the occurrence of any Event of Default, to setoff and appropriate and apply any
and all deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any currency,
in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of any Credit Party, or any part
thereof in such amounts as such Lender may elect, against and on account of any
Credit Party Obligations owing to such Lender, as such Lender may elect,
whether or not such Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured.  The aforesaid right of set-off may be
exercised by such Lender against the Credit Party or against any trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver or execution, judgment or attachment creditor of any such Credit
Party, or against anyone else claiming through or against any such Credit Party
or any such trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the occurrence of any Event of Default.  Each Lender agrees promptly to notify the
applicable Credit Party and the


 


91





















 


Administrative Agent after any
such set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application.


 


10.8                           Table of Contents and Section Headings.


 


The table of contents and the Section and
subsection headings herein are intended for convenience only and shall be
ignored in construing this Credit Agreement.


 


10.9                           Counterparts.


 


This Credit Agreement may be executed by one
or more of the parties to this Credit Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same agreement.


 


10.10                     Effectiveness.


 


This Credit Agreement shall become effective
on the date on which all of the parties have signed a copy hereof (whether the
same or different copies) and shall have delivered the same to the
Administrative Agent (or counsel to the Administrative Agent) or, in the case
of the Lenders, shall have given to the Administrative Agent written,
telecopied or telex notice (actually received) at such office that the same has
been signed and mailed to it.


 


10.11                     Severability.


 


Any provision of this Credit Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.


 


10.12                     Integration.


 


This Credit Agreement and the other Credit
Documents represent the agreement of the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent, the Borrower or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Credit Documents.


 


10.13                     GOVERNING
LAW.


 


THIS CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS CREDIT
AGREEMENT AND THE OTHER CREDIT DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


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10.14                     Consent
to Jurisdiction and Service of Process.


 


All judicial proceedings brought against the
Borrower and/or any other Credit Party with respect to this Credit Agreement,
any Note or any of the other Credit Documents may be brought in the courts of the State of New York in New York County or of the United
States for the Southern District of New York, and, by execution and delivery of
this Credit Agreement, each of the Borrower and the other Credit Parties
accepts, for itself and in connection with its properties, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
irrevocably agrees to be bound by any final judgment rendered thereby in
connection with this Credit Agreement, any Note or any other Credit Document
from which no appeal has been taken or is available.  Each of the Borrower and the other Credit
Parties irrevocably agrees that all service of process in any such proceedings
in any such court may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
it at its address set forth in Section 10.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto, such
service being hereby acknowledged by each of the Borrower and the other Credit
Parties to be effective and binding service in every respect.  Each of the Borrower, the Administrative
Agent and the Lenders irrevocably waives any objection, including, without
limitation, any objection to the laying of venue based on the grounds of forum
non conveniens which it may now or hereafter have to the bringing of any such action
or proceeding in any such jurisdiction. 
Nothing herein shall affect any right that any party hereto may have to
serve process in any other manner permitted by law or shall limit the right of
any Lender to bring proceedings against the Borrower or the other Credit
Parties in the court of any other jurisdiction.


 


10.15                     Confidentiality.


 


The Administrative Agent and each of the
Lenders agrees that it will use its best efforts not to disclose without the
prior consent of the Borrower (other than to its employees, affiliates,
auditors or counsel or to another Lender) any non-public information with
respect to the Borrower and its Subsidiaries which is furnished pursuant to
this Credit Agreement, any other Credit Document or any documents contemplated
by or referred to herein or therein, except that any Lender may disclose any
such information (a) as has become generally available to the public other than
by a breach of this Section 10.15, (b) as may be required in any report,
statement or testimony submitted to any municipal, state or federal regulatory
body having or claiming to have jurisdiction over such Lender or to the Federal
Reserve Board or the Federal Deposit Insurance Corporation or the OCC or the
NAIC or similar organizations (whether in the United States or elsewhere) or
their successors, (c) as may be required in response to any summons or subpoena
or any law, order, regulation or ruling applicable to such Lender, provided
that such Lender will, to the extent permitted by law, promptly give notice to
the Borrower before any such disclosure so that the Borrower may seek to obtain
a protective order, (d) to any prospective Participant or assignee in
connection with any contemplated transfer pursuant to Section 10.6; provided
that such prospective transferee shall have agreed to be bound by the
confidentiality provisions set forth in this Section 10.15, (e) to any
actual or prospective counterparty (or its advisors) to any Hedging Agreement
relating to a Credit Party and its obligations; provided that such
Person(s) shall have agreed to be bound by the confidentiality 


 


93





















 


provisions set forth in this Section
10.15, (f) to Gold Sheets and other similar bank trade publications,
such information to consist solely of deal terms and other information
regarding the credit facilities evidenced by this Credit Agreement customarily
found in such publications or (g) in connection with any suit, action or
proceeding for the purpose of defending itself, reducing its liability, or
protecting or exercising any of its claims, rights, remedies or interests under
or in connection with the Credit Documents or any Hedging Agreement entered
into with a Hedging Agreement Provider.


 


10.16                     Acknowledgments.


 


The Borrower and the other Credit Parties
each hereby acknowledges that:


 


(a)                                  it
has been advised by counsel in the negotiation, execution and delivery of each
Credit Document;


 


(b)                                 neither
the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to the Borrower or any other Credit Party arising out of or in connection
with this Credit Agreement and the relationship between Administrative Agent
and Lenders, on one hand, and the Borrower and the other Credit Parties, on the
other hand, in connection herewith is solely that of debtor and creditor; and


 


(c)                                  no
joint venture exists among the Lenders or among the Borrower and the Lenders.


 


10.17                     Waivers
of Jury Trial.


 


THE BORROWER, THE OTHER CREDIT PARTIES, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


[Remainder of Page Intentionally
Left Blank]


 


94





















 


IN WITNESS WHEREOF, each of the parties hereto
has caused a counterpart of this Credit Agreement to be duly executed and
delivered as of the date first above written.


 


	
  BORROWER:

  	
  HNI CORPORATION,

  
	
   

  	
  an Iowa corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   Melinda C. Ellsworth

  	
   

  
	
   

  	
  Name:

  	
   

  	
   Melinda C. Ellsworth

  	
   

  
	
   

  	
  Title:

  	
   

  	
   Vice President, Treasurer and

  	
   

  
	
   

  	
   

  	
   and Investor Relations

  	
   

  
	
   

  	
   

  
	
  GUARANTORS:

  	
  THE HON COMPANY

  
	
   

  	
  ALLSTEEL INC.

  
	
   

  	
  HEARTH & HOME TECHNOLOGIES INC.

  
	
   

  	
  PAOLI INC.

  
	
   

  	
  RIVER BEND CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   Melinda C. Ellsworth

  	
   

  
	
   

  	
  Name:

  	
   

  	
   Melinda C. Ellsworth

  	
   

  
	
   

  	
  Title:

  	
   

  	
   Vice President, Treasurer and

  	
   

  
	
   

  	
   

  	
   and Investor Relations

  	
   

  
								



 





















 


	
  LENDERS:

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  individually in its capacity as a

  
	
   

  	
  Lender and in its capacity as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   Richard E. Anglin III

  	
   

  
	
   

  	
  Name:

  	
   

  	
   Richard E. Anglin III

  	
   

  
	
   

  	
  Title:

  	
   

  	
   Vice President

  	
   

  
							



 





















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  individually in its capacity as a

  
	
   

  	
  Lender and in its capacity as Syndication
  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   Sharon Burks Horos

  	
   

  
	
   

  	
  Name:

  	
   

  	
   Sharon Burks Horos

  	
   

  
	
   

  	
  Title:

  	
   

  	
   Vice President

  	
   

  
							



 





















 


	
   

  	
  WELLS FARGO BANK, N.A.,

  
	
   

  	
  individually in its capacity as a

  
	
   

  	
  Lender and in its capacity as Documentation
  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   Elizabeth M. Emde

  	
   

  
	
   

  	
  Name:

  	
   

  	
   Elizabeth M. Emde

  	
   

  
	
   

  	
  Title:

  	
   

  	
   Assistant Vice President

  	
   

  
							



 





















 


	
   

  	
  BNP PARIBAS,

  
	
   

  	
  individually in its capacity as a

  
	
   

  	
  Lender and in its capacity as Documentation
  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   Jo Ellen Bender

  	
   

  
	
   

  	
  Name:

  	
   

  	
   Jo Ellen Bender

  	
   

  
	
   

  	
  Title:

  	
   

  	
   Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   Gaye C. Plunkett

  	
   

  
	
   

  	
  Name:

  	
   

  	
   Gaye C. Plunkett

  	
   

  
	
   

  	
  Title:

  	
   

  	
   Vice President

  	
   

  
								



 





















 


	
   

  	
  HARRIS TRUST & SAVINGS BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   Derek R. Cook

  	
   

  
	
   

  	
  Name:

  	
   

  	
   Derek R. Cook

  	
   

  
	
   

  	
  Title:

  	
   

  	
   Vice President

  	
   

  
							



 





















 


	
   

  	
  NATIONAL CITY BANK OF THE MIDWEST,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   Kevin M. Knopf

  	
   

  
	
   

  	
  Name:

  	
   

  	
   Kevin M. Knopf

  	
   

  
	
   

  	
  Title:

  	
   

  	
   Vice President

  	
   

  
							



 





















 


	
   

  	
  SUNTRUST BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   Linda L. Dash

  	
   

  
	
   

  	
  Name:

  	
   

  	
   Linda L. Dash

  	
   

  
	
   

  	
  Title:

  	
   

  	
   Director