Exhibit 10.1


 


EXECUTION COPY


 


 


U.S. $300,000,000


 


AMENDED AND RESTATED
CREDIT AGREEMENT


 


Dated as of January 31, 2005


 


among


 


BECKMAN COULTER, INC.


 


as Borrower


 


THE INITIAL LENDERS
NAMED HEREIN


 


as Initial  Lenders


 


CITICORP USA, INC.


 


as Sole  Administrative  Agent


 


BANK OF AMERICA, N.A.


 


As Sole Syndication Agent


 


and


 


CITIGROUP GLOBAL
MARKETS INC.


 


and


 


BANC OF AMERICA
SECURITIES, LLC


 


as Joint  Lead  Arrangers  and
Joint  Bookrunners


 





















 


Table of Contents


 


	
  ARTICLE I
  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  
	
   

  	
   

  
	
  SECTION 1.01.
  Certain Defined Terms

  	
   

  
	
  SECTION
  1.02. Computation of Time Periods

  	
   

  
	
  SECTION 1.03.
  Accounting Terms

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  II AMOUNTS AND TERMS OF THE ADVANCES

  	
   

  
	
   

  	
   

  
	
  SECTION 2.01. The Advances

  	
   

  
	
  SECTION 2.02.
  Making the Advances

  	
   

  
	
  SECTION 2.03.
  Fees

  	
   

  
	
  SECTION
  2.04. Termination or Reduction of the Commitments

  	
   

  
	
  SECTION 2.05. Repayment

  	
   

  
	
  SECTION 2.06. Interest

  	
   

  
	
  SECTION
  2.07. Interest Rate Determination

  	
   

  
	
  SECTION 2.08.
  Conversion of Advances

  	
   

  
	
  SECTION 2.09.
  Optional Prepayments

  	
   

  
	
  SECTION 2.10. Increased
  Costs

  	
   

  
	
  SECTION 2.11. Illegality

  	
   

  
	
  SECTION 2.12.
  Payments and Computations

  	
   

  
	
  SECTION
  2.13. Taxes

  	
   

  
	
  SECTION 2.14.
  Sharing of Payments, Etc

  	
   

  
	
  SECTION 2.15. Use of
  Proceeds

  	
   

  
	
  SECTION
  2.16. Increase in the Aggregate Commitments

  	
   

  
	
  SECTION
  2.17. Extension of Termination Date

  	
   

  
	
  SECTION 2.18.
  Replacement of Lenders

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  III CONDITIONS TO EFFECTIVENESS AND LENDING

  	
   

  
	
   

  	
   

  
	
  SECTION
  3.01. Conditions Precedent to Effectiveness of Section 2.01

  	
   

  
	
  SECTION
  3.02. Conditions Precedent to Each Borrowing, Commitment Increase and
  Extension Date

  	
   

  
	
  SECTION
  3.03. Determinations Under Section 3.01

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  
	
  SECTION
  4.01. Representations and Warranties of the Borrower

  	
   

  
	
   

  	
   

  
	
  ARTICLE V
  COVENANTS OF THE BORROWER

  	
   

  
	
   

  	
   

  
	
  SECTION 5.01.
  Affirmative Covenants

  	
   

  
	
  SECTION 5.02.
  Negative Covenants

  	
   

  
	
  SECTION 5.03.
  Financial Covenants

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI EVENTS OF
  DEFAULT

  	
   

  
	
   

  	
   

  
	
  SECTION 6.01. Events
  of Default

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII THE AGENT

  	
   

  
	
   

  	
   

  
	
  SECTION 7.01.
  Authorization and Action

  	
   

  



 





















 


	
  SECTION 7.02.
  Agent’s Reliance, Etc

  	
   

  
	
  SECTION 7.03. CUSA
  and Affiliates

  	
   

  
	
  SECTION 7.04.
  Lender Credit Decision

  	
   

  
	
  SECTION 7.05.
  Indemnification

  	
   

  
	
  SECTION 7.06. Successor
  Agent

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  SECTION 8.01.
  Amendments, Etc

  	
   

  
	
  SECTION 8.02. Notices, Etc

  	
   

  
	
  SECTION 8.03. No
  Waiver; Remedies

  	
   

  
	
  SECTION 8.04. Costs
  and Expenses

  	
   

  
	
  SECTION 8.05. Right of
  Set-off

  	
   

  
	
  SECTION 8.06. Binding
  Effect

  	
   

  
	
  SECTION
  8.07. Assignments and Participations

  	
   

  
	
  SECTION 8.08.
  Confidentiality

  	
   

  
	
  SECTION 8.09. Governing
  Law

  	
   

  
	
  SECTION 8.10.
  Execution in Counterparts

  	
   

  
	
  SECTION 8.11.
  Jurisdiction, Etc

  	
   

  
	
  SECTION 8.12.
  Patriot Act Notice

  	
   

  
	
  SECTION 8.13.
  Waiver of Jury Trial

  	
   

  



 


	
  Schedules

  
	
   

  
	
  Schedule 1 - List of
  Applicable Lending Offices

  
	
   

  
	
  Schedule 5.02(a) -
  Existing Liens

  
	
   

  
	
  Exhibits

  
	
   

  
	
  Exhibit A - Form of
  Promissory Note

  
	
   

  
	
  Exhibit B - Form of Notice
  of Borrowing

  
	
   

  
	
  Exhibit C - Form of
  Assignment and Acceptance

  
	
   

  
	
  Exhibit D-1 - Form of
  Opinion of Assistant General Counsel of the Borrower

  
	
   

  
	
  Exhibit D-2 - Form of
  Opinion of Latham & Watkins LLP, Counsel for the Borrower

  
	
   

  
	
  Exhibit E – Form of
  Opinion of Borrower’s counsel (Commitment Increase)

  



 





















 


AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of January 31, 2005


 


Among BECKMAN COULTER, INC.,
a Delaware corporation (the “Borrower”), the banks, financial
institutions and other institutional lenders (the “Initial Lenders”)
listed on the signature pages hereof, CITICORP USA, INC. (“CUSA”), a Delaware
corporation, as sole administrative agent (the “Agent”) for the Lenders
(as hereinafter defined), BANK OF AMERICA, N.A., as sole syndication agent, and
CITIGROUP GLOBAL MARKETS INC. and BANC OF AMERICA SECURITIES, LLC, as joint
arrangers and joint lead bookrunners (each an “Arranger” and together the
“Arrangers”):


 


PRELIMINARY STATEMENTS:


 


(1)                                  The Borrower is party to a Credit Agreement
dated as of July 10, 2002 (as amended, supplemented or otherwise modified from
time to time to (but not including) the date of this Amended and Restated
Credit Agreement (this “Agreement”), the “Existing Credit Agreement”),
with the banks, financial institutions and other institutional lenders party
thereto, Citicorp USA, Inc., as agent for the lender parties, and Salomon Smith
Barney Inc. and Banc of America LLC, as joint lead arrangers and joint
bookrunners.


 


(2)                                  The parties to this Agreement desire to amend
the Existing Credit Agreement as set forth herein and to restate the Existing
Credit Agreement in its entirety as set forth below.


 


(3)                                  The Borrower has requested that the Lenders
make loans to it in an aggregate principal amount not exceeding $300,000,000
(subject to increase as provided herein) at any one time outstanding for
working capital and other general corporate purposes, and the Initial Lenders
are prepared to make such loans upon the terms and conditions hereof.  Accordingly, the parties hereto agree as
follows:


 


ARTICLE I


 


DEFINITIONS AND ACCOUNTING TERMS


 


SECTION 1.01.  Certain Defined
Terms.


 


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


 


“Advance”
means an advance by a Lender to the Borrower pursuant to Article II, and refers
to a Base Rate Advance or a Eurodollar Rate Advance (each of which shall be a “Type”
of Advance).


 


“Affected
Lender” has the meaning specified in Section 2.18.


 


“Affiliate”
means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person.  For purposes of this definition, the term
“control” (including the terms “controlling”, “controlled by” and “under common
control with”) of a Person means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.


 


“Agent’s
Account” means the account of the Agent maintained by the Agent at Citibank
with its office at 2 Penns Way, Suite 200, New Castle, Delaware 19720, Account
No. 36852248, Attention: Bank Loan Syndications.


 


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


 





















 


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


 


	
  Public Debt Rating

  S&P/Moody’s

  	
   

  	
  Applicable

  Margin

  	
   

  
	
  Level 1

  A- or A3 or higher

  	
   

  	
  0.275

  	
  %

  
	
  Level 2

  Lower than Level 1, but at least BBB+ or Baa1

  	
   

  	
  0.375

  	
  %

  
	
  Level 3

  Lower than Level 2, but at least BBB or Baa2

  	
   

  	
  0.450

  	
  %

  
	
  Level 4

  Lower than Level 3, but at least BBB- or Baa3

  	
   

  	
  0.575

  	
  %

  
	
  Level 5

  Lower than Level 4, but at least BB+ or Ba1

  	
   

  	
  0.625

  	
  %

  
	
  Level 6

  Lower than Level 5

  	
   

  	
  0.875

  	
  %

  



 


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


 


	
  Public Debt Rating

  S&P/Moody’s

  	
   

  	
  Applicable

  Percentage

  	
   

  
	
  Level 1

  A- or A3 or higher

  	
   

  	
  0.100

  	
  %

  
	
  Level 2

  Lower than Level 1, but at least BBB+ or Baa1

  	
   

  	
  0.125

  	
  %

  
	
  Level 3

  Lower than Level 2, but at least BBB or Baa2

  	
   

  	
  0.150

  	
  %

  
	
  Level 4

  Lower than Level 3, but at least BBB- or Baa3

  	
   

  	
  0.175

  	
  %

  
	
  Level 5

  Lower than Level 4, but at least BB+ or Ba1

  	
   

  	
  0.250

  	
  %

  
	
  Level 6

  Lower than Level 5

  	
   

  	
  0.375

  	
  %

  



 


“Applicable Utilization Fee” means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating of S&P and
Moody’s in effect on such date as set forth below:


 


 


	
  Public Debt Rating

  S&P/Moody’s

  	
   

  	
  Applicable

  Utilization Fee

  	
   

  
	
  Level 1

  A- or A3 or higher

  	
   

  	
  0.125

  	
  %

  
	
  Level 2

  Lower than Level 1, but at least BBB+ or Baa1

  	
   

  	
  0.125

  	
  %

  
	
  Level 3

  Lower than Level 2, but at least BBB or Baa2

  	
   

  	
  0.125

  	
  %

  
	
  Level 4

  Lower than Level 3, but at least BBB- or Baa3

  	
   

  	
  0.125

  	
  %

  
	
  Level 5

  Lower than Level 4, but at least BB+ or Ba1

  	
   

  	
  0.125

  	
  %

  
	
  Level 6

  Lower than Level 5

  	
   

  	
  0.25

  	
  %

  



 


2





















 


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


 


“Assuming
Lender” has the meaning specified in Section 2.16(d).


 


“Assumption
Agreement” has the meaning specified in Section 2.16(d)(iii).


 


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


 


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


 


(b)                                 the sum (adjusted to the nearest 1/4 of 1%
or, if there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of
(i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary market
morning offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly on each
Monday (or, if such day is not a Business Day, on the next succeeding Business
Day) for the three-week period ending on the previous Friday by Citibank on the
basis of such rates reported by certificate of deposit dealers to and published
by the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of recognized
standing selected by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such three-week period by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for Citibank
with respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in the United
States, plus (iii) the average during such three-week period of the
annual assessment rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar deposits of Citibank in
the United States; and


 


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


 


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


 


“Borrowing”
means a borrowing consisting of Advances of the same Type made on the same day
by the Lenders.


 


3





















 


“Business
Day” means a day of the year (other than a Saturday or Sunday) on which
banks are not required or authorized by law to close in New York,
New York and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank market.


 


“Citibank”
means Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America.


 


“Commitment”
means, as to any Lender, (a) if such Lender is an Initial Lender, the
amount set forth opposite such Lender’s name on the signature pages hereof, (b)
if such Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the amount set forth in such Assumption Agreement or (c) if
such Lender has entered into any Assignment and Acceptance, the amount set
forth for such Lender in the Register maintained by the Agent pursuant to
Section 8.07(c), in each case as such amount may be reduced pursuant to
Section 2.04 or increased pursuant to Section 2.16.


 


“Commitment Date” has the meaning specified in Section 2.16(b).


 


“Commitment
Increase” has the meaning specified in Section 2.16(a).


 


“Compliance
Certificate” has the meaning specified in Section 5.01(i)(i).


 


“Confidential
Information” means information about the Borrower and its Subsidiaries and
their existing and proposed operations, business plans, affairs, products and
financial condition not generally disclosed to, or known by, the public that
the Borrower furnishes to the Agent or any Lender pursuant to this Agreement.


 


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


 


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


 


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


 


“Debt”
of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than (i) trade payables
that are payable on customary terms and incurred in the ordinary course of such
Person’s business, and (ii) deferred compensation to any employee or director
of the Borrower or any of its Subsidiaries), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all obligations of such Person as lessee
under leases that have been or should be, in accordance with GAAP, recorded as
capital leases, (f) all obligations, contingent or otherwise, of such
Person in respect of acceptances, letters of credit or similar extensions of
credit, (g) all net obligations of such Person in respect of Hedge
Agreements, (h) all Debt of others referred to in clauses (a) through
(g) above or clause (i) below and other payment obligations (collectively,
“Guaranteed Debt”) guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (1) to pay or purchase such Guaranteed Debt or to
advance or supply funds for the payment or purchase of such Guaranteed Debt,
(2) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor to
make payment of such Guaranteed Debt or to assure the holder of such Guaranteed
Debt against loss, (3) to supply funds to or in any other manner invest in
the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered) or (4) otherwise to assure a creditor against loss, and
(i) all Debt referred to in clauses (a) through (h) above (including
Guaranteed Debt) secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by


 


4





















 


such Person, even though
such Person has not assumed or become liable for the payment of such Debt; provided,
however, that clauses (h) and (i) shall not include up to $75,000,000
(in the aggregate) of Debt of Persons other than the Borrower and its
Subsidiaries outstanding at any time if and to the extent that (i) such Debt
evidences a lease or purchase of goods or services by such Person from the
Borrower or any Subsidiary of the Borrower, (ii) such Debt would not otherwise
constitute Debt but for the fact that the Borrower or any Subsidiary of the
Borrower (or any property of the Borrower or any Subsidiary of the Borrower) is
subject to recourse liability for the payment or purchase of all or a portion
thereof in connection with the sale of such Debt and (iii) such recourse
liability does not exceed 15% of the sale price thereof.


 


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


 


“Defaulting
Lender” means, at any time, any Lender that, at such time, (a) has failed
to make any Advance required to be made by such Lender to the Borrower pursuant
to Section 2.01 at or prior to such time, or (b) has failed to pay any amount
required to be paid by such Lender to the Agent or any other Lender hereunder
at or prior to such time, including, without limitation, any amount required to
be paid by such Lender to (i) the Agent pursuant to Section 2.02(d) to
reimburse the Agent for the amount of any Advance made by the Agent for the
account of such Lender, (ii) any other Lender pursuant to Section 2.14 to
purchase any participation in Advances owing to such other Lender, and (iii)
the Agent pursuant to Section 7.05 to reimburse the Agent for such Lender’s
ratable share of any amount required to be paid by the Lenders to the Agent as
provided therein, or (c) shall take any action or be the subject of any action
or proceeding described in Section 6.01(e).


 


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


 


“EBITDA”
means, for any period, net income (or net loss) for such period plus the sum of
(a) Interest Expense for such period, (b) income and franchise tax
expense for such period, (c) depreciation expense for such period,
(d) amortization expense for such period, and (e) extraordinary charges
and special, one-time charges for such period but only to the extent not in
excess of 20% of EBITDA for such period calculated without giving effect to
this clause (e), in each case determined in accordance with GAAP.


 


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


 


“Eligible
Assignee” means (i) a Lender, (ii) an Affiliate of a Lender, and
(iii) any other financial institution having a combined capital and
surplus of at least $250,000,000 or other accredited investor (as defined in
Regulation D under the Securities Act), in each case, approved by the Agent
and, unless an Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 8.07, the Borrower, such
approval not to be unreasonably withheld or delayed (it being understood that
any objection by the Borrower to any Person reasonably considered by the
Borrower to be a competitor, or an Affiliate of a competitor, of the Borrower
shall be deemed to be not unreasonable); provided, however, that
neither the Borrower nor an Affiliate of the Borrower shall qualify as an
Eligible Assignee.


 


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


 


5





















 


“Environmental
Law” means any federal, state, local or foreign statute, law, ordinance,
rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the
environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials, in each case as
applicable to the Borrower or any Subsidiary of the Borrower or with respect to
the business or properties of the Borrower or any Subsidiary of the Borrower.


 


“Environmental
Permit” means any permit, approval, identification number, license or other
authorization required to be obtained by the Borrower or any Subsidiary of the
Borrower or required in respect of any business or properties of the Borrower
or any Subsidiary of the Borrower under any Environmental Law.


 


“Equipment
for Resale” means any instrument systems and related accessories and
components manufactured or assembled by or on behalf of the Borrower or any of
its Subsidiaries that are owned by the Borrower or such Subsidiary and held for
placement or placed (pursuant to leases, bailment arrangements or rental
agreements) in facilities of the Borrower’s or such Subsidiary’s customers
(including distributors, commission representatives, agents and their
customers).


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.


 


“ERISA
Affiliate” means any Person that for purposes of Title IV of ERISA is
a member of the Borrower’s controlled group, or under common control with the
Borrower, within the meaning of Section 414 of the Internal Revenue Code.


 


“ERISA
Event” means (a) the occurrence of a reportable event, within the meaning
of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to terminate
such Plan pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of the Borrower or
any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for the imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan pursuant
to Section 307 of ERISA; or (h) the institution, or the written
threat of institution, by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA.


 


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


 


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


 


“Eurodollar
Rate” means, for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing, the interest rate per annum obtained by
dividing (a) the offered rate in the London interbank market for deposits in
United States dollars for a term comparable to such Interest Period, as shown
on the Moneyline Telerate Markets page 3750 as of 11:00 a.m., London time, two


 


6





















 


Business Days prior to the
first day of such Interest Period, provided that (i) if more than one
offered rate as described above appears on such Moneyline Telerate Markets
page, the rate computed pursuant to this clause (a) shall be the arithmetic
average (rounded upward, if necessary, to the next higher 1/100 of 1%) of such
offered rates, (ii) if the Agent ceases generally to use such Moneyline
Telerate Markets page for determining interest rates based on eurodollar
deposit rates, a comparable internationally recognized interest rate reporting
service selected by the Agent shall be used by the Agent in lieu of such
Moneyline Telerate Markets page, and (iii) if no such offered rates as described
above appear on such Moneyline Telerate Markets page (or such comparable
reporting service), the rate computed pursuant to this clause (a) shall be the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per annum,
if such average is not such a multiple) of the rates per annum at which
deposits in U.S. dollars are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day
of such Interest Period in an amount substantially equal to such Reference
Bank’s Eurodollar Rate Advance (or, in the case of Citibank, CUSA’s Eurodollar
Rate Advance) comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period, by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period.  In the case of clause
(a)(iii) above, the Eurodollar Rate for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing shall be determined by the
Agent on the basis of applicable rates furnished to and received by the Agent
from the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of
Section 2.07.


 


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


 


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


 


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


 


“Existing
Credit Agreement” has the meaning specified in the Preliminary Statements.


 


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


 


“Federal
Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.


 


“Fitch”
means Fitch, Inc.


 


“Funded
Debt” of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments,
(c) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (d) all obligations of such Person as lessee
under leases that have been or should be, in


 


7





















 


accordance with GAAP,
recorded as capital leases, (e) all obligations, contingent or otherwise,
of such Person in respect of acceptances, letters of credit or similar
extensions of credit, (f) all Funded Debt of others referred to in
clauses (a) through (e) above or clause (g) below and other payment
obligations (collectively, “Guaranteed Funded Debt”) guaranteed directly
or indirectly in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (1) to pay or purchase such
Guaranteed Funded Debt or to advance or supply funds for the payment or
purchase of such Guaranteed Funded Debt, (2) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services, primarily for
the purpose of enabling the debtor to make payment of such Guaranteed Funded
Debt or to assure the holder of such Guaranteed Funded Debt against loss,
(3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or
(4) otherwise to assure a creditor against loss, and (g) all Funded
Debt referred to in clauses (a) through (f) above (including Guaranteed Funded
Debt) secured by (or for which the holder of such Funded Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Funded Debt; provided, however, that clauses (f)
and (g) shall not include up to $75,000,000 (in the aggregate) of Funded Debt
of Persons other than the Borrower and its Subsidiaries outstanding at any time
if and to the extent that (i) such Funded Debt evidences a lease or purchase of
goods or services by such Person from the Borrower or any Subsidiary of the
Borrower, (ii) such Funded Debt would not otherwise constitute Funded Debt but
for the fact that the Borrower or any Subsidiary of the Borrower (or any
property of the Borrower or any Subsidiary of the Borrower) is subject to
recourse liability for the payment or purchase of all or a portion thereof in
connection with the sale of such Funded Debt and (iii) such recourse liability
does not exceed 15% of the sale price thereof.


 


“GAAP”
means generally accepted accounting principles (subject to Section 1.03,
consistent with those applied in the preparation of any financial statements
referred to in Section 4.01(e) hereof) in the United States of America as in
effect on the date of this Agreement, including those set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements of the Financial Accounting
Standards Board or in such other statement by such other entity as approved by
a significant segment of the United States accounting profession.


 


“Granting
Lender” has the meaning specified in Section 8.07(h).


 


“Hazardous
Materials” means (a) petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials,
polychlorinated biphenyls and radon gas and (b) any other chemicals, materials
or substances designated, classified or regulated as hazardous or toxic or as a
pollutant or contaminant under any Environmental Law.


 


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


 


“Increase Date” has the meaning specified in Section 2.16(a).


 


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


 


“Information
Memorandum” means the information memorandum dated January 6, 2005 used by
the Agent and the Arrangers in connection with the syndication of the
Commitments.


 


“Interest
Expense” means, for any period, the sum of (i) interest expense, including,
without limitation and without duplication, (a) amortization of debt discount,
(b) amortization of fees (including, without limitation, fees payable in
respect of Hedge Agreements) payable in connection with the incurrence of Debt
to the extent included in interest expense, and (c) the portion of any liabilities
incurred in connection with capitalized leases allocable to interest expense,
in each case of the Borrower and its Subsidiaries on a Consolidated basis,
determined in accordance with GAAP for such period, and (ii) any dividends paid
or accrued in respect of any preferred stock of the Borrower during such
period.


 


8





















 


“Interest
Period” means, for each Eurodollar Rate Advance comprising part of the same
Borrowing, the period commencing on the date of such Eurodollar Rate Advance or
the date of the Conversion of any Base Rate Advance into such Eurodollar Rate
Advance and ending on the last day of the period selected by the Borrower
pursuant to the provisions below and, thereafter, each subsequent period commencing
on the last day of the immediately preceding Interest Period and ending on the
last day of the period selected by the Borrower pursuant to the provisions
below.  The duration of each such
Interest Period shall be one, two, three or six months, and subject to clause
(c) of this definition, nine or twelve months, as the Borrower may, upon notice
received by the Agent not later than 1:00 P.M. (New York City time)
on the third Business Day prior to the first day of such Interest Period, select;
provided, however, that:


 


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


 


(b)                                 Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same Borrowing shall be of
the same duration;


 


(c)                                  in the case of any such Borrowing, the
Borrower shall not be entitled to select an Interest Period having duration of
nine or twelve months unless, by 4:00 P.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, each Lender
notifies the Agent that such Lender will be providing funding for such
Borrowing with such Interest Period (the failure of any Lender to so respond by
such time being deemed for all purposes of this Agreement as an objection by
such Lender to the requested duration of such Interest Period); provided that,
if any or all of the Lenders object to the requested duration of such Interest
Period, the duration of the Interest Period for such Borrowing shall be one,
two, three or six months, as specified by the Borrower in the applicable Notice
of Borrowing as the desired alternative to an Interest Period of nine or twelve
months;


 


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


 


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


 


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


 


“Inventory”
shall have the meaning ascribed to such term under GAAP.


 


“Lenders”
means the Initial Lenders, each Assuming Lender that shall become a party
hereto pursuant to Section 2.16 or 2.17 and each Person that shall become a
party hereto pursuant to Section 8.07.


 


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


 


9





















 


“Material
Adverse Change” means any material adverse change (or any event or
condition which, solely with the passage of time, has a substantial likelihood
of causing or resulting in a Material Adverse Change) in the business,
financial condition or operations of the Borrower and its Subsidiaries taken as
a whole.


 


“Material
Adverse Effect” means a material adverse effect on (a) the business,
financial condition or operations of the Borrower and its Subsidiaries taken as
a whole, (b) the rights and remedies of the Agent or any Lender under this
Agreement or any Note or (c) the ability of the Borrower to perform its
obligations under this Agreement or any Note.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Multiemployer
Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.


 


“Multiple
Employer Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.


 


“Non-Consenting
Lender” has the meaning specified in Section 2.17(b).


 


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


 


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


 


“Other
Taxes” has the meaning specified in Section 2.13.


 


“Patriot Act” means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. 107-56, signed into law October 26, 2001.


 


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


 


“Permitted
Liens” means:  (a) Liens for taxes,
assessments and governmental charges or levies to the extent not required to be
paid under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen’s, mechanics’, landlords’, bailees’, carriers’, warehousmen’s,
workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary
course of business securing obligations that are not overdue for a period of
more than 60 days or, if so overdue, are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP; (c) pledges or deposits in the
ordinary course of business to secure non-delinquent obligations incurred in
the ordinary course of business (other than for borrowed money) or
non-delinquent obligations under workers’ compensation or unemployment laws or
similar legislation or to secure the performance of public regulatory
obligations which are not delinquent, bid, surety and appeal bonds, performance
bonds or other obligations of a like nature (other than for borrowed money),
deposits with utility companies or insurance carriers in the ordinary course of
business, and bankers’ liens or rights of setoff with respect to bank accounts;
(d) Uniform Commercial Code financing statements (or similar statements under
foreign laws) filed for precautionary purposes in connection with any true
lease of property which is not prohibited under this Agreement and under which
the Borrower or any of its Subsidiaries is lessee, provided that any
such financing statement does not cover any property other than the property
subject to such lease and the proceeds thereof; and Uniform Commercial Code
financing statements filed in connection with any Liens


 


10





















 


otherwise permitted under
this Agreement, provided that any such financing statements do not cover
any property other than the property subject to such Liens and the proceeds
thereof; (e) easements, rights of way and other non-monetary encumbrances
on title to real property that do not render title to the property encumbered
thereby unmarketable or materially adversely affect the use of such property
for its present purposes; and (f) any Liens arising as a result of a sale or
discount in the ordinary course of business by the Borrower or any Subsidiary
of the Borrower of customer leases or other receivables for cash in a amount
not less than the fair market value thereof (after taking into account
customary reserves for losses, yield protection, fees and similar matters), provided
that such Liens shall cover only the assets sold or the equipment subject to
such leases and the proceeds thereof.


 


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


 


“Plan”
means a Single Employer Plan or a Multiple Employer Plan.


 


“Public
Debt Rating” means, as of any date, the lowest rating that has been most
recently announced by either S&P or Moody’s, as the case may be, for any
class of non-credit enhanced long-term senior unsecured debt issued by the
Borrower.  For purposes of the foregoing,
(a) if only one of S&P and Moody’s shall have in effect a Public Debt
Rating, the comparable ratings of Fitch shall be substituted for the ratings of
S&P or Moody’s, as the case may be; (b) if neither S&P nor Moody’s
shall have in effect a Public Debt Rating, the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee will be set in
accordance with Level 6 under the definition of Applicable Margin, Applicable
Percentage or Applicable Utilization Fee, as the case may be; (c) if the
ratings established by S&P and Moody’s shall fall within different levels,
the Applicable Margin, the Applicable Percentage and the Applicable Utilization
Fee shall be based upon the higher rating unless the such ratings differ by two
or more levels, in which case the applicable level will be deemed to be one
level above the lower of such levels; (d) if any rating established by
S&P or Moody’s shall be changed, such change shall be effective as of the
date on which such change is first announced publicly by the rating agency
making such change; and (e) if S&P or Moody’s shall change the basis
on which ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody’s, as the case may be, shall refer to the then
equivalent rating by S&P or Moody’s, as the case may be.  Anything contained herein to the contrary
notwithstanding, for purposes of determining the Applicable Margin, the
Applicable Percentage or the Applicable Utilization Fee at any time, (i) if
either S&P or Moody’s shall no longer be in the business of issuing public
debt ratings, the comparable ratings of Fitch shall be substituted for the
ratings of S&P or Moody’s, as the case may be, and (ii) if neither S&P
nor Moody’s shall be in the business of issuing such ratings, the Applicable
Margin, the Applicable Percentage and the Applicable Utilization Fee will be
determined in accordance with clause (b) above.


 


“Reference
Banks” means Citibank, Bank of America, N.A. and JPMorgan Chase Bank, N.A.


 


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


 


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


 


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


 


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


 


“Significant
Subsidiary” means each Subsidiary now existing or hereafter acquired or
formed, and each successor thereto, which accounts for more than 5% of (i) the
Consolidated gross revenues of the Borrower and its Subsidiaries, (ii)
Consolidated EBITDA, or (iii) the Consolidated assets of the Borrower and its
Subsidiaries, in each case, as of the last day of the most recently completed
fiscal quarter of the Borrower with respect to which, pursuant to clauses (i)
or (ii) of Section 5.01(i), financial statements have been, or are required to
have been, delivered by the Borrower.


 


11





















 


“Single
Employer Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any ERISA Affiliate and no Person other than the Borrower and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.


 


“Solvent”
means, with respect to any Person on a particular date, that on such date (a) the
fair value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its debts
as they become absolute and matured, (c) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person’s ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person’s property
constitutes an unreasonably small capital. 
The amount of contingent liabilities at any time shall be computed as
the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.


 


“SPC”
has the meaning specified in Section 8.07(h).


 


“Specified
Officer” means any Responsible Officer, the Secretary and General Counsel
of the Borrower, and any other executive officer identified as such in the
Borrower’s annual report on Form 10-K filed pursuant to the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.


 


“Subsidiary”
of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of
(a) the issued and outstanding capital stock having ordinary voting power
to elect a majority of the Board of Directors of such corporation (irrespective
of whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person’s other Subsidiaries.


 


“Taxes”
has the meaning specified in Section 2.13.


 


“Termination
Date” means the earlier of (a) January 31, 2010, subject to the extension
thereof pursuant to Section 2.17 and (b) the date of termination in whole of
the Commitments pursuant to Section 2.04 or 6.01; provided, however,
that the Termination Date of any Lender that is a Non-Consenting Lender to any
requested extension pursuant to Section 2.17 shall be the Termination Date in
effect immediately prior to the applicable Extension Date for all purposes of
this Agreement.


 


“Type”
shall have the meaning ascribed to such term in the definition of the term
“Advance”.


 


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


 


12





















 


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


 


SECTION
1.03.  Accounting Terms.  All accounting terms not specifically defined
herein shall be construed in accordance with GAAP.  In the event any “Accounting Change” (as
defined below) shall occur and such changes affect the calculation of any
financial covenant set forth in Section 5.03 of this Agreement, then the
Borrower and the Lenders agree to enter into negotiations in order to amend
such provisions of this Agreement so as to equitably reflect such Accounting
Change with the desired result that the criteria for evaluating the financial
condition of Borrower and its Subsidiaries shall be the same after such
Accounting Change as if such Accounting Change had not been made, and until
such time as such an amendment shall have been executed and delivered by the
Borrower and Required Lenders, (A) such financial covenants, shall be
calculated as if such Accounting Change had not been made, and (B) the Borrower
shall include with each compliance certificate and the financial statements
required to be delivered hereunder, a reconciliation that shows the differences
between the financial statements delivered (which reflect such Accounting
Change) and the basis for calculating financial covenant compliance (without
reflecting such Accounting Change).  “Accounting
Change” means an accounting pronouncement issued or in effect on or after
December 31, 2003 which results in a change in accounting principles required
by generally accepted accounting principles and implemented by the Borrower.


 


ARTICLE II


 


AMOUNTS
AND TERMS OF THE ADVANCES


 


SECTION
2.01.  The Advances.  Each Lender severally agrees, on the terms
and conditions hereinafter set forth, to make Advances to the Borrower from
time to time on any Business Day during the period from the Effective Date
until the Termination Date in an aggregate amount not to exceed at any time
outstanding such Lender’s Commitment. 
Each Borrowing shall be in an aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and shall consist of Advances
of the same Type made on the same day by the Lenders ratably according to their
respective Commitments.  Within the
limits of each Lender’s Commitment, the Borrower may borrow under this
Section 2.01, prepay pursuant to Section 2.09 and reborrow under this
Section 2.01.


 


SECTION
2.02.  Making the Advances.
(a)  Each Borrowing shall be made on notice,
given not later than 1:00 P.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or on the same Business Day
of the proposed Borrowing in the case of a Borrowing consisting of Base Rate
Advances, by the Borrower to the Agent, which shall give to each Lender prompt
notice thereof by facsimile transmission or electronic mail message.  Each such notice of a Borrowing (a “Notice
of Borrowing”) shall be by telephone, confirmed promptly in writing, or
facsimile transmission or electronic mail message, in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Type of Advances comprising such Borrowing,
(iii) aggregate amount of such Borrowing, and (iv) in the case of a
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for
each such Advance.  The Agent shall
provide the Borrower with an acknowledgment of receipt of each Notice of
Borrowing specifying a Eurodollar Rate Advance on the next Business Day.  Each Lender shall, before 2:00 P.M.
(New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Agent at the Agent’s Account,
in same day funds, such Lender’s ratable portion of such Borrowing.  Promptly after the Agent’s receipt of such
funds and upon fulfillment of the applicable conditions set forth in
Article III, the Agent will make such funds available to the Borrower no
later than 4:00 P.M. (New York City time) at the Agent’s address referred to in
Section 8.02.


 


(b)  Anything
in Section 2.02 (a) above to the contrary notwithstanding, (i) the
Borrower may not select Eurodollar Rate Advances for any Borrowing if the aggregate
amount of such Borrowing is less than $5,000,000 or if the obligation of the
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.07 or 2.11 and (ii) the Eurodollar Rate Advances may not be
outstanding as part of more than ten separate Borrowings.


 


13





















 


(c)  Each
Notice of Borrowing shall be irrevocable and binding on the Borrower.  In the case of any Borrowing that the related
Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances,
the Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.


 


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


 


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


 


SECTION
2.03.  Fees.  (a)  Facility
Fee.  The
Borrower agrees to pay to the Agent for the account of each Lender a facility
fee on the aggregate average daily amount of such Lender’s Commitment from the
date hereof in the case of each Initial Lender and from the effective date
specified in the Assumption Agreement or the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the
Termination Date at a rate per annum equal to the Applicable Percentage in
effect from time to time, payable in arrears quarterly on the last day of each
March, June, September and December, commencing March 31, 2005, and on the
Termination Date.


 


(b)  Fees
of the Agent and the Arrangers.  The
Borrower shall pay to the Agent and each of the Arrangers for their respective
accounts such fees as may from time to time be agreed between the Borrower and
the Agent and the Arrangers.


 


SECTION 2.04.  Termination or
Reduction of the Commitments.  The Borrower shall have the right, upon at
least three Business Days’ notice to the Agent, to terminate in whole or permanently
reduce ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.


 


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


 


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


 


(i)                                     Base
Rate Advances.  During such periods
as such Advance is a Base Rate Advance, a rate per annum equal at all times to
the Base Rate in effect from time to time plus, at any time that the
aggregate principal amount of Advances outstanding exceeds 50% of the aggregate
amount of the Commitments, the Applicable Utilization Fee in effect from time
to time, payable in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such Base Rate
Advance shall be Converted or paid in full.


 


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(ii)                                  Eurodollar
Rate Advances.  During such periods
as such Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x) the
Eurodollar Rate for such Interest Period for such Advance plus
(y) the Applicable Margin in effect from time to time plus (z) at
any time that the aggregate principal amount of Advances outstanding exceeds
50% of the aggregate amount of the Commitments, the Applicable Utilization Fee
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.


 


(b)  Default
Interest.  Upon the occurrence and
during the continuance of an Event of Default under Section 6.01(a), the
Borrower shall pay interest on (i) the unpaid principal amount of each
Advance owing to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to
2.00% above the interest rate required to be paid on such Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2.00% above the interest rate required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.


 


SECTION 2.07.  Interest Rate
Determination. 
(a)  In the event that the
Eurodollar Rate is to be determined in accordance with clause (a)(iii) of the
definition thereof, each Reference Bank shall, upon request by the Agent,
furnish to the Agent timely information for the purpose of determining such
Eurodollar Rate.  In such case, if any
one or more of the Reference Banks shall not furnish such timely information to
the Agent for the purpose of determining any such interest rate, the Agent
shall determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks (so long as at least two Reference Banks shall
so furnish such information).  The Agent
shall give prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Agent for purposes of Section 2.06(a)(i)
or (ii), and the rate, if any, furnished by each Reference Bank for the purpose
of determining the interest rate under Section 2.06(a)(ii).


 


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


 


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


 


(d)  On
the date on which the aggregate unpaid principal amount of Eurodollar Rate
Advances comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $5,000,000, such Advances shall automatically Convert
into Base Rate Advances.


 


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


 


(f)  If
fewer than two Reference Banks shall timely furnish information to the Agent
for determining the Eurodollar Rate for any Eurodollar Rate Advances (in the
event that clause (a)(iii) of the definition of Eurodollar Rate shall apply):


 


15





















 


(i)                                     the
Agent shall forthwith notify the Borrower and the Lenders that the interest
rate cannot be determined for such Eurodollar Rate Advances,


 


(ii)                                  each
such Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance (or if such Advance is then a
Base Rate Advance, will continue as a Base Rate Advance), and


 


(iii)                               the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.


 


SECTION 2.08.  Conversion of
Advances. 
The Borrower may on any Business Day, upon notice given to the Agent not
later than 1:00 P.M. (New York City time) on the third Business Day
prior to the date of the proposed Conversion and subject to the provisions of
Sections 2.07 and 2.11, Convert all Advances of one Type comprising the
same Borrowing into Advances of the other Type; provided, however, that any Conversion
of Eurodollar Rate Advances into Base Rate Advances shall be made only on the
last day of an Interest Period for such Eurodollar Rate Advances, any
Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an
amount not less than the minimum amount specified in Section 2.02(b) and
no Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b). 
Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the
Advances to be Converted, and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for each such
Advance.  Each notice of Conversion shall
be irrevocable and binding on the Borrower.


 


SECTION 2.09.  Optional
Prepayments. 
The Borrower may, upon same day notice not later than 12:00 noon (New
York City time), with respect to Base Rate Advances or at least three Business
Days’ notice with respect to Eurodollar Rate Advances to the Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amount of
the Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial
prepayment shall be in an aggregate principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) in the event of
any such prepayment of a Eurodollar Rate Advance, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(c).


 


SECTION
2.10.  Increased Costs.  (a) 
If, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation after the date hereof or (ii) the
compliance with any guideline or request issued or made after the date hereof
by any central bank or other governmental authority having jurisdiction over a
Lender (whether or not having the force of law), there shall be any increase in
the cost to such Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances (excluding for purposes of this Section 2.10 any such
increased costs resulting from (A) Taxes or Other Taxes (as to which Section
2.13 shall govern) and (B) changes in the basis of taxation of overall net
income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has
its Applicable Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, within five days after written demand by such
Lender together with a calculation of the amount demanded in reasonable detail
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, however, that the Borrower shall not be
liable under this Section 2.10(a) for the payment of any such amounts incurred
or accrued more than 90 days prior to the date on which notice of the event or
occurrence giving rise to the obligation to make such payment is given to the
Borrower hereunder; provided, further, that if the event or
occurrence giving rise to such obligation is retroactive, then the 90-day
period referred to above shall be extended to include the period of retroactive
effect thereof; provided  further that (1) if the Borrower objects
in good faith to any payment demanded under this Section 2.10(a) on or before
the date such payment is due, then the Borrower and the Lender demanding such
payment shall enter into discussions to review the amount due and the
Borrower’s obligation to pay such amount to such Lender shall be deferred for
30 days after the original demand for payment and (2) if the Borrower and such
Lender do not otherwise reach agreement on the amount due during such 30 day
period, the Borrower shall pay to such Lender at the end of such 30 day period
the amount certified by such Lender to be due. 
Subject to the last proviso in the preceding sentence, a certificate as
to such amounts submitted to the Borrower and the Agent by any Lender shall be
conclusive and 


 


16





















 


binding for all purposes,
absent manifest error.  If any Lender
shall request any payment from the Borrower under this Section 2.10(a) in
respect of any increased costs, such Lender agrees, upon request by the Borrower,
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurodollar Lending Office if
the making of such a designation would avoid or reduce any such increased costs
and would not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender.


 


(b)  If, due to either (i) the introduction of or
any change in or in the interpretation of any law or regulation after the date
hereof or (ii) the compliance after the date hereof with any guideline or
request issued or made after the date hereof by any central bank or other
governmental authority having jurisdiction over a Lender (whether or
not having the force of law), there shall be any increase in the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender as a result of or based upon the existence of such
Lender’s commitment to lend hereunder and other commitments of such type, then,
within five days after written demand by such Lender together with a
calculation of the amount demanded in reasonable detail (with a copy of such
demand to the Agent), the Borrower shall pay to the Agent for the account of
such Lender from time to time as specified by such Lender, additional amounts sufficient
to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender’s
commitment to lend hereunder; provided, however, that the
Borrower shall not be liable under this Section 2.10(b) for the payment of any
such amounts incurred or accrued more than 90 days prior to the date on which
notice of the event or occurrence giving rise to the obligation to make such
payment is given to the Borrower hereunder; provided, further,
that if the event or occurrence giving rise to such obligation is retroactive,
then the 90-day period referred to above shall be extended to include the
period of retroactive effect thereof; provided  further that (1)
if the Borrower objects in good faith to any payment demanded under this
Section 2.10(b) on or before the date such payment is due, then the Borrower
and the Lender demanding such payment shall enter into discussions to review
the amount due and the Borrower’s obligation to pay such amount to such Lender
shall be deferred for 30 days after the original demand for payment and (2) if
the Borrower and such Lender do not otherwise reach agreement on the amount due
during such 30 day period, the Borrower shall pay to such Lender at the end of
such 30 day period the amount certified by such Lender to be due.  Subject to the last proviso in the preceding
sentence, a certificate as to such amounts submitted to the Borrower and the
Agent by such Lender shall be conclusive and binding for all purposes, absent
manifest error.


 


(c)  Any
determination under this Section 2.10 in respect of CUSA shall
be made as though Citibank were a party to this Agreement in place of CUSA.


 


SECTION
2.11.  Illegality.  Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation, after the date
hereof, makes it unlawful, or any central bank or other governmental authority
having jurisdiction over a Lender asserts after the date hereof that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar
Rate Advances hereunder, then, on notice thereof and demand therefor by such
Lender to the Borrower through the Agent, (a) each Eurodollar Rate Advance
will automatically, upon the later of such demand and the date required by
applicable law, Convert into a Base Rate Advance and (b) the obligation of
the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist; provided,
however, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurodollar Lending Office if
the making of such a designation would allow such Lender or its Eurodollar
Lending Office to continue to perform its obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and would
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender.


 


SECTION 2.12.  Payments and
Computations.(a) 
The Borrower shall make each payment hereunder and under the Notes,
irrespective of any right of counterclaim or set-off, not later than
12:00 noon (New York City time) on the day when due in U.S. dollars
to the Agent at the Agent’s Account in same day funds.  The Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to
Section 2.10, 2.13 or 8.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment
of any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in 


 


17





















 


accordance with the terms of
this Agreement.  Upon any Assuming Lender
becoming a Lender hereunder as a result of a Commitment Increase pursuant to
Section 2.16 or an extension of the Termination Date pursuant to Section 2.17,
and upon the Agent’s receipt of such Lender’s Assumption Agreement and
recording of the information contained therein in the Register, from and after
the applicable Increase Date or Extension Date, as the case may be, the Agent
shall make all payments hereunder and under any Notes issued in connection
therewith in respect of the interest assumed thereby to the Assuming Lender.
Upon its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and Acceptance,
the Agent shall make all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.


 


(b)  The
Borrower hereby authorizes each Lender, if and to the extent payment owed to
such Lender is not made when due hereunder or under the Note held by such
Lender, to charge from time to time against any or all of the Borrower’s
accounts with such Lender any amount so due.


 


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


 


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


 


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


 


SECTION
2.13.  Taxes.
(a)  Except as provided in Section
2.13(f), any and all payments by the Borrower hereunder or under the Notes
shall be made, in accordance with Section 2.12, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding,
in the case of each Lender and the Agent, taxes imposed on its overall net
income, and franchise taxes imposed in lieu thereof, by the jurisdiction under
the laws of which such Lender or the Agent is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed in lieu thereof, by the
jurisdiction of such Lender’s Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities in respect of payments hereunder or under
the Notes being hereinafter referred to as “Taxes”).  If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Agent, (i) except as provided in Section 2.13(f), the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.13) such Lender or the Agent receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other governmental
authority in accordance with applicable law.


 


18





















 


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


 


(c)  The
Borrower shall indemnify each Lender and the Agent for and hold it harmless
against the full amount of Taxes or Other Taxes and for the full amount of
taxes of any kind imposed or asserted by any jurisdiction on amounts payable
under this Section 2.13, imposed on or paid by such Lender or the Agent, as the
case may be, and any liability (including penalties, additions to tax, interest
and expenses) arising therefrom or with respect thereto.  These indemnification payments shall be made
within 30 days from the date on which such Lender or the Agent makes written
demand therefor, accompanied by a calculation in reasonable detail of the
amount demanded and evidence of the Taxes, Other Taxes or taxes of any kind
imposed by any jurisdiction on amounts payable under this Section 2.13 imposed
or paid by the Agent or any Lender.


 


(d)  Within
30 days after the date of any payment of Taxes, by the Borrower pursuant to
this Section 2.13, the Borrower shall furnish to the Agent, at its address
referred to in Section 8.02, evidence reasonably satisfactory to the Agent of
such payment.


 


(e)  Each
Lender organized under the laws of a jurisdiction outside the United States, on
or prior to the date of its execution and delivery of this Agreement in the
case of each Initial Lender, and on the date of the Assignment and Acceptance
or Assumption Agreement pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as reasonably requested in
writing by the Borrower (but only so long as such Lender remains lawfully able
to do so), shall provide each of the Agent and the Borrower with two original Internal
Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that such
Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes.  In addition to the forms described in the
immediately preceding sentence, each Lender organized under the laws of a
jurisdiction outside the United States shall, upon the request of the Borrower
or the Agent in writing, (i) provide each of the Agent and the Borrower with
two further copies of such forms or other appropriate certification of such
forms on or before the date that any such form expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent form
delivered to the Borrower, and (ii) obtain such extensions of the time for
the filing and renew such forms and certifications thereof as may be reasonably
requested by the Borrower or the Agent. If the form (or forms) provided by a
Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however,
that, if at the date of the Assignment and Acceptance or Assumption Agreement
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) of this Section
2.13 in respect of United States withholding tax with respect to interest paid
at such date, then, to such extent, the term Taxes shall include (in addition
to withholding taxes that may be imposed in the future or other amounts
otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date.  For purposes of this subsection (e), the term
“United States” shall have the meaning specified in Section 7701 of the
Internal Revenue Code.


 


(f)  For any period with respect to which a Lender
has failed to provide the Borrower with the appropriate form described in
Section 2.13(e) or failed to seek an extension of the time for filing such
successor form as required in writing to do so by the Agent or the Borrower in
accordance with Section 2.13(e) (other than if such failure is due to a change
in law occurring subsequent to the date on which a form originally was required
to be provided, or if such form otherwise is not required under subsection (e)
above), such Lender shall not be entitled to indemnification under Section
2.13(a) or (c) with respect to Taxes imposed by the United States by reason of
such failure; provided, however, that, should a Lender become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps (at such Lender’s expense) as the Lender
shall reasonably request to assist the Lender to recover such Taxes.


 


19





















 


(g)  In the event that an additional payment is made under
Section 2.13(a) or (c) for the account of any Lender or Agent, such Lender or
Agent, as applicable, shall determine whether it has received or been granted a
Tax Benefit (as defined hereinafter), and if such Lender or Agent, as
applicable, in its sole discretion, determines that it has finally and
irrevocably received or been granted a credit against or release or remission
for, or repayment of, any tax paid or payable by or for it in respect of or
calculated with reference to such payment or the deduction or withholding
giving rise to such payment (a “Tax Benefit”), such Lender or Agent
shall, to the extent that it determines that it can do so without prejudice to
the retention of the amount of such credit, relief, remission or repayment pay
to the Borrower such amount as such Lender shall, in its sole discretion, have
determined to be attributable to such Tax Benefit and which will leave such
Lender (after such payment) in no worse position than it would have been in if
the Borrower had not been required to make such payment, deduction or
withholding.  Nothing herein contained
shall interfere with the right of a Lender to arrange its tax affairs in
whatever manner it thinks fit nor oblige any Lender or Agent to claim any tax
credit or to disclose any information relating to its tax affairs or any
computations in respect thereof or require any Lender or Agent to do anything
that would prejudice its ability to benefit from any other credits, reliefs,
remissions or repayments to which it may be entitled.


 


(h)  If the Borrower is required to pay any amount
to any Lender or the Agent pursuant to subsection (a), (b), or (c) of this
Section 2.13, then such Lender or the Agent shall use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office so as to eliminate
(or, if elimination is not reasonably possible, to minimize) any such
additional payment by the Borrower which may thereafter accrue, if such change
in the sole judgment of such Lender or the Agent, as the case may be, is not
otherwise disadvantageous to such Lender or the Agent.


 


(i)  Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower and each
Lender and Agent contained in this Section 2.13 shall survive the repayment of
the Advances and the other obligations hereunder or under the Notes and the
termination of the Commitments hereunder.


 


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


 


SECTION
2.15.  Use of Proceeds.  The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely for
working capital and other general corporate purposes of the Borrower and its
domestic Subsidiaries in the United States of America.


 


SECTION 2.16.  Increase in the
Aggregate Commitments.  (a) The Borrower may, at any time but in any
event not more than once in any calendar year prior to the Termination Date, by
notice to the Agent, request that the aggregate amount of the Commitments be
increased by an amount of $50,000,000 or an integral multiple thereof (each a “Commitment
Increase”), effective as of a date that is at least 90 days prior to the
scheduled Termination Date then in effect (the “Increase Date”) as
specified in the related notice to the Agent; provided, however,
that (i) in no event shall the aggregate amount of the Commitments at any time
exceed $500,000,000, (ii) on the date of any request by the Borrower for a
Commitment Increase and on the related Increase Date, the applicable conditions
set forth in Section 3.02 shall be satisfied, and (iii) on the Commitment Date
(as defined below) and after giving effect to the Commitment Increase, the
Borrower’s Public Debt Ratings shall be at least BBB- by S&P or Baa3 by
Moody’s.


 


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(b)                                 The
Agent shall promptly notify the Lenders of a request by the Borrower for a
Commitment Increase, which notice shall include (i) the proposed amount of such
requested Commitment Increase, (ii) the proposed Increase Date, and (iii) the
date by which Lenders wishing to participate in the Commitment Increase must
commit to an increase in the amount of their respective Commitments (the “Commitment
Date”).  Each Lender that is willing
to participate in such requested Commitment Increase (each an “Increasing
Lender”) shall, in its sole discretion, give written notice to the Agent on
or prior to the Commitment Date of the amount by which it is willing to
increase its Commitment.  If the Lenders
notify the Agent that they are willing to increase the amount of their
respective Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be
allocated among the Lenders willing to participate therein in proportion to the
amounts offered by such Lenders or as otherwise agreed among each such Lender,
the Borrower and the Agent.


 


(c)                                  Promptly
following each Commitment Date, the Agent shall notify the Borrower as to the
amount, if any, by which the Lenders are willing to participate in the
requested Commitment Increase.  If the
aggregate amount by which the Lenders are willing to participate in any
requested Commitment Increase on any such Commitment Date is less than the
requested Commitment Increase, then the Borrower may extend offers to one or
more Eligible Assignees to participate in any portion of the requested
Commitment Increase that has not been committed to by the Lenders as of the
applicable Commitment Date; provided, however, that the
Commitment of each such Eligible Assignee shall be in an amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof.


 


(d)                                 On
each Increase Date, each Eligible Assignee that accepts an offer to participate
in a requested Commitment Increase in accordance with Section 2.16(b) (each
such Eligible Assignee and each Eligible Assignee that agrees to an extension
of the Termination Date in accordance with Section 2.17(c) being referred to
herein as an “Assuming Lender”) shall become a Lender party to this
Agreement as of such Increase Date and the Commitment of each Increasing Lender
for such requested Commitment Increase shall be increased by the applicable
amount determined in accordance with Section 2.16(b) as of such Increase Date; provided,
however, that the Agent shall have received on or before such Increase
Date the following, each dated such date:


 


(i)                                     certified
copies of resolutions of the Board of Directors of the Borrower approving the
Commitment Increase and the corresponding modifications to this Agreement;


 


(ii)                                  an
opinion of counsel for the Borrower (which may be in-house counsel), in
substantially the form of Exhibit E hereto;


 


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


 


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


 


On each Increase Date, upon fulfillment of the
conditions set forth in the immediately preceding sentence of this Section
2.16(d), and subject to the conditions specified in Section 2.16(a), the Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by facsimile
transmission or electronic mail message, of the occurrence of the Commitment
Increase to be effected on such Increase Date and shall record in the Register
the relevant information with respect to each Increasing Lender and each
Assuming Lender on such date.


 


SECTION 2.17.  Extension of
Termination Date. 
(a) At least 45 days but not more than 60 days prior to any anniversary
of the Effective Date, the Borrower, by written notice to the Agent, may
request an extension of the then scheduled Termination Date for a period of one
year.  The Agent shall promptly notify
each Lender of such request, and each Lender shall in turn, in its sole
discretion, not more than 30 or less than 20 days prior to such anniversary
date, notify the Borrower and the Agent in writing as to whether such Lender
will consent to such extension.  If any
Lender shall fail to notify the Agent and the Borrower in writing of its
consent to any such


 


21





















 


request for extension of the
Termination Date at least 20 days prior to such anniversary date, such Lender
shall be deemed to be a Non-Consenting Lender with respect to such
request.  The Agent shall notify the
Borrower not later than 15 days prior to the applicable anniversary date of the
decision of the Lenders regarding the Borrower’s request for an extension of
the Termination Date.


 


(b)                                 If
all the Lenders consent in writing to any such request in accordance with
Section 2.17(a), the Termination Date in effect at such time shall, effective
as at such Termination Date (the “Extension Date”), be extended for one
year; provided that on each Extension Date the applicable conditions set
forth in Article III shall be satisfied. 
If less than all of the Lenders consent in writing to any such request
in accordance Section 2.17(a), the Termination Date in effect at such time
shall, effective as at the applicable Extension Date and subject to Section
2.17(d), be extended as to those Lenders that so consented (each a “Consenting
Lender”) but shall not be extended as to any other Lender (each a “Non-Consenting
Lender”).  To the extent that the
Termination Date is not extended as to any Lender pursuant to this Section 2.17
and the Commitment of such Lender is not assumed in accordance with Section
2.17(c) on or prior to the applicable Extension Date, the Commitment of Lender
shall automatically terminate in whole on such unextended Termination Date
(and, for the avoidance of doubt, all outstanding principal of, and accrued
interest on, indebtedness due such Lender under this Agreement, together with
all fees and other amount payable hereunder, shall be paid in full to the Agent
for the benefit of such Non-Consenting Lender on such unextended Termination
Date) without any further notice or other action by the Borrower, such Lender
or any other Person; provided that such Lender’s rights under Sections
2.10, 2.13 and 8.04, and its obligations under Section 7.05, shall survive the
Termination Date for such Lender as to matters occurring prior to such
date.  It is understood and agreed that
no Lender shall have any obligation whatsoever to agree to any request made by
the Borrower for any requested extension of the Termination Date.


 


(c)                                  If
less than all of the Lenders consent to any such request pursuant to Section
2.17(a), the Agent shall promptly so notify the Consenting Lenders, and each
Consenting Lender may, in its sole discretion, give written notice to the Agent
not later than 10 days prior to the Termination Date of the amount of the
Non-Consenting Lenders’ Commitments for which it is willing to accept an
assignment.  If the Consenting Lenders
notify the Agent that they are willing to accept assignments of Commitments in an
aggregate amount that exceeds the amount of the Commitments of the
Non-Consenting Lenders, such Commitments shall be allocated among the
Consenting Lenders willing to accept such assignments in proportion to the
amounts offered by such Lenders or as otherwise agreed among each such Lender,
the Borrower and the Agent.  If after
giving effect to the assignments of Commitments described above there remains
any Commitments of Non-Consenting Lenders, the Borrower may arrange for one or
more Consenting Lenders or other Eligible Assignees as Assuming Lenders to
assume, effective as of the Extension Date, any Non-Consenting Lender’s
Commitment and all of the obligations of such Non-Consenting Lender under this
Agreement thereafter arising, without recourse to or warranty by, or expense
to, such Non-Consenting Lender; provided, however, that the
amount of the Commitment of any such Assuming Lender as a result of such
substitution shall in no event be less than $5,000,000 unless the amount of the
Commitment of such Non-Consenting Lender is less than $1,000,000, in which case
such Assuming Lender shall assume all of such lesser amount; and provided,
further that:


 


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


 


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


 


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


 


22





















 


provided,
further that such Non-Consenting Lender’s rights under Sections 2.10,
2.13 and 8.04, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution.  At least three Business Days prior to any
Extension Date, (A) each such Assuming Lender, if any, shall have delivered to
the Borrower and the Agent an Assumption Agreement, duly executed by such
Assuming Lender, such Non-Consenting Lender, the Borrower and the Agent, (B)
any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Agent as to the increase in the amount of
its Commitment and (C) each Non-Consenting Lender being replaced pursuant to
this Section 2.17 shall have delivered to the Agent any Note or Notes held by
such Non-Consenting Lender.  Upon the
payment or prepayment of all amounts referred to in clauses (i), (ii) and (iii)
of the immediately preceding sentence, each such Consenting Lender or Assuming
Lender, as of the Extension Date, will be substituted for such Non-Consenting
Lender under this Agreement and shall be a Lender for all purposes of this
Agreement, without any further acknowledgment by or the consent of the other
Lenders, and the obligations of each such Non-Consenting Lender hereunder
shall, by the provisions hereof, be released and discharged.


 


(d)                                 If
(after giving effect to any assignments or assumptions pursuant to Section
2.17(c)) Lenders having Commitments equal to at least 50% of the Commitments in
effect immediately prior to the Extension Date consent in writing to a
requested extension (whether by execution or delivery of an Assumption
Agreement or otherwise), not later than one Business Day prior to such
Extension Date, the Agent shall so notify the Borrower, and, subject to the
satisfaction of the applicable conditions in Article III, the Termination Date
then in effect shall be extended for the additional one-year period as
described in Section 2.17(a), and all references in this Agreement, and in the
Notes, if any, to the “Termination Date” shall, with respect to each
Consenting Lender and each Assuming Lender for such Extension Date, refer to
the Termination Date as so extended. 
Promptly following each Extension Date, the Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) of the extension of the
scheduled Termination Date in effect immediately prior thereto and shall
thereupon record in the Register the relevant information with respect to each
such Consenting Lender and each such Assuming Lender.


 


SECTION 2.18. 
Replacement of Lenders.  If any Lender (a) requests the payment of
additional amounts under Sections 2.10 or 2.13, (b) is unable to make
Eurodollar Rate Advances in accordance with Section 2.11, (c) is a Defaulting
Lender, or (d) refuses to consent to a proposed amendment, waiver or other
modification which requires the consent of all Lenders and has been approved by
Required Lenders (any such Lender, an “Affected Lender”), then Borrower
may, at its option replace such Lender with an Eligible Assignee (which may be
another Lender or an Affiliate of a Lender) which executes and delivers to the
Affected Lender an Assignment and Acceptance with respect to the Commitments of
the Affected Lender, and in such case the Affected Lender shall execute and
deliver to such replacement lender an Assignment and Acceptance and, in
consideration of the purchase, at par, without premium or penalty, of the Note
of such Affected Lender and the assumption of its obligations hereunder, assign
to the replacement lender its Commitments and outstanding Advances hereunder.
In the event of an assignment under this Section, the processing fee referred
to in Section 8.07 hereof shall be paid by the Borrower, provided, that
no such fee shall be paid if the assignment is to an existing Lender.


 


ARTICLE III


 


CONDITIONS
TO EFFECTIVENESS AND LENDING


 


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


 


(a)  There shall have occurred
no Material Adverse Change since December 31, 2003.


 


(b)  There shall exist no action, suit,
investigation, litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, governmental agency or
arbitrator that (i) would have a Material Adverse Effect or
(ii) would be reasonably likely to affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the transactions
contemplated hereby.


 


23





















 


(c)  Nothing shall have come to the attention of
the Lenders during the course of their due diligence investigation to lead them
to believe that the Information Memorandum was or has become misleading,
incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such access to
the management, records, books of account, contracts and properties of the
Borrower and its Subsidiaries as they shall have requested.


 


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


 


(e)  The Borrower shall have notified the Agent in
writing as to the proposed Effective Date.


 


(f)  The Borrower shall have paid all accrued fees
and expenses of the Agent, the Arrangers and the Lenders (including the accrued
fees and expenses of counsel to the Agent for which an invoice has been
received prior to the Effective Date).


 


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


 


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


 


(ii)                                  No
event has occurred and is continuing that constitutes a Default.


 


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


 


(i)                                     Duly
executed counterparts of this Agreement and Notes payable to the order of each
of the Lenders, respectively.


 


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


 


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


 


(iv)                              A
favorable opinion of each of (A) the Assistant General Counsel to the Borrower,
and (B) Latham & Watkins LLP, counsel for the Borrower, in substantially
the forms of Exhibits D-1 and D-2 hereto, respectively.


 


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


 


(vi)                              Such
other information, certificates and documents as the Agent may reasonably
request on behalf of itself or any Lender.


 


24





















 


(i)                                     All
outstanding principal of, and accrued interest on, the indebtedness outstanding
under the Existing Credit Agreement, together with all fees and other amounts
payable thereunder, shall have been paid in full or will be paid in full upon
disbursement of the initial Advances hereunder.


 


SECTION 3.02. 
Conditions Precedent to Each Borrowing, Commitment
Increase and Extension Date.  The obligation of each Lender to make an
Advance on the occasion of each Borrowing, each Commitment Increase pursuant to
Section 2.16 and each extension of Commitments pursuant to Section 2.17 shall
be subject to the conditions precedent that the Effective Date shall have
occurred, and on the date of such Borrowing, or on the applicable Increase Date
or Extension Date, as the case may be, (a) the following statements shall
be true (and each of the giving of the applicable Notice of Borrowing, request
for Commitment Increase or request for Commitment Extension, and the acceptance
by the Borrower of the proceeds of such Borrowing, or such increase or
extension, as the case may be, shall constitute a representation and warranty
by the Borrower that on the date of such Borrowing, or on such Increase Date or
Extension Date, as the case may be, such statements are true):


 


(i)                                     the
representations and warranties contained in Section 4.01 (except, in the
case of Borrowings, the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f)(i) thereof) are true and
correct on and as of the date of such Borrowing, before and after giving effect
to such Borrowing and to the application of the proceeds therefrom, or on and
as of such Increase Date or Extension Date, as the case may be, as though made
on and as of such date (except to the
extent such representations and warranties relate to an earlier date, in which
case as though made on and as of such earlier date); and


 


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


 


(b) in the case of a Commitment Increase, the Agent
shall have received from the Borrower, in exchange for surrendered Notes, new
Notes payable to the order of each Lender with an increased Commitment in the
amount of its respective Commitment, and (c) the Agent shall have received such
other approvals, opinions or documents as any Lender through the Agent may
reasonably request.


 


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


 


ARTICLE IV


 


REPRESENTATIONS
AND WARRANTIES


 


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


 


(a)  The Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.


 


(b)  The execution, delivery and performance by
the Borrower of this Agreement and the Notes, and the consummation of the
transactions contemplated hereby, are within the Borrower’s corporate powers,
have been duly authorized by all necessary corporate action, and do not
(i) contravene the Borrower’s charter or by-laws, (ii) violate any
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award binding on the Borrower or any property of the Borrower or (iii)
conflict


 


25





















 


with or result in a breach of any contractual
restriction binding on or affecting the Borrower, except, in the case of (ii)
or (iii) above, to the extent that such contravention could not reasonably be
expected to have a Material Adverse Effect.


 


(c)  No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body or any other third party is required for the due execution, delivery and
performance by the Borrower of this Agreement or the Notes.


 


(d)  This Agreement has been, and each of the
Notes when delivered hereunder will have been, duly executed and delivered by
the Borrower.  This Agreement is, and
each of the Notes when delivered hereunder will be, the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with their respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to or affecting the rights or remedies of creditors
generally and the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or at law.


 


(e)  The Consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 2003, and the related
Consolidated statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of KPMG LLP,
independent public accountants, copies of which have been delivered or made
available to the Lenders, fairly present in all material respects the
Consolidated financial position of the Borrower and its Subsidiaries as at such
date and the Consolidated results of the operations and cash flows of the
Borrower and its Subsidiaries for the period ended on such date.  Since December 31, 2003, there has been
no Material Adverse Change.


 


(f)  There is no pending or, to the knowledge of
any Specified Officer, threatened action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action, against
the Borrower or any of its Subsidiaries or affecting the properties of the
Borrower or any of its Subsidiaries before any court, governmental agency or
arbitrator that (i) would have a Material Adverse Effect or
(ii) would be reasonably likely to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby.


 


(g)  The Borrower is not engaged in the business
of extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System (“Regulation U”)), and no proceeds of any Advance
will be used to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin stock.


 


(h)  Neither the Borrower nor any of its
Subsidiaries is an “investment company”, or an “affiliated person” of, or “promoter”
or “principal underwriter” for, an “investment company”,
as such terms are defined in the Investment Company Act of 1940, as
amended.  Neither the making of any
Advances, nor the application of the proceeds or repayment thereof by the
Borrower will violate any provision of such Act or any rule, regulation or
order of the Securities and Exchange Commission thereunder.


 


(i)  Neither the Information Memorandum, as
supplemented by the Borrower to the Lenders (or to the Agent for distribution
to the Lenders) in writing prior to the date hereof, nor any other written
factual information, exhibit or report furnished by the Borrower in writing to
the Agent or any Lender in connection with the negotiation of this Agreement or
pursuant to the terms of this Agreement, contains, as of the date furnished,
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements made therein, taken as a whole, not misleading
in the light of the circumstances under which the Information Memorandum or
such other information, exhibit or report was delivered.


 


(j)  The Borrower and its Subsidiaries taken as a
whole are and, after the receipt and application of each of the Advances in
accordance with the terms of this Agreement, will be Solvent.


 


26





















 


ARTICLE V


 


COVENANTS
OF THE BORROWER


 


SECTION 5.01. 
Affirmative Covenants


 


So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will:


 


(a)  Compliance with Laws, Etc.  Comply, and cause each of its Subsidiaries to
comply with all applicable laws, rules, regulations and orders, such compliance
to include, without limitation, compliance with Regulation U, ERISA,
Environmental Laws and the Patriot Act, if failure to so comply could
reasonably be expected to have a Material Adverse Effect.


 


(b)  Payment of Taxes, Etc.  Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim (A) that is being contested
in good faith and by proper proceedings and as to which appropriate reserves
are being maintained or (B) if the failure to pay or discharge any such tax,
assessment, charge or claim could not reasonably be expected to have a Material
Adverse Effect.


 


(c)  Maintenance of Insurance.  Maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Borrower or such Subsidiary operates.


 


(d)  Preservation of Corporate Existence, Etc.  Preserve and maintain, and cause each of its
Significant Subsidiaries to preserve and maintain, (i) its corporate existence
and (ii) its rights (charter and statutory), permits, licenses, approvals,
privileges and franchises in each jurisdiction where necessary or where failure
to do so could reasonably be expected to have a Material Adverse Effect; provided,
however, that the Borrower and its Subsidiaries may consummate any
merger, consolidation, liquidation, dissolution or winding up permitted under
Section 5.02(b) and provided, further that neither the
Borrower nor any of its Subsidiaries shall be required to preserve any right or
franchise if the officers authorized by the Board of Directors of the Borrower
or such Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such Subsidiary, as
the case may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower or the Lenders.


 


(e)  Visitation Rights.  At any reasonable time during normal business
hours and from time to time, on reasonable prior notice to the Borrower, permit
the Agent or any of the Lenders or any agents or representatives thereof, to
examine and make copies of and abstracts from the records and books of account
of, and visit the properties of, the Borrower, and to discuss the affairs,
finances and accounts of the Borrower with any of its officers or directors
and, in the company of a Responsible Officer or his designee, with their
independent certified public accountants; provided, however, that when a
Default exists, the Agent or any Lender (or any of their respective representatives
or independent contractors), may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.


 


(f)  Keeping of Books.  Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct (in all
material respects) entries shall be made of all financial transactions and the
assets and business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.


 


27





















 


(g)  Maintenance of Properties, Etc.  Maintain and preserve, and cause each of its
Subsidiaries to maintain and preserve, all of its material properties that are
useful or necessary in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.


 


(h)  Transactions with Affiliates.  Conduct, and cause each of its Subsidiaries
to conduct, all transactions otherwise permitted under this Agreement with any
of their Affiliates on terms that are fair and reasonable and no less favorable
to the Borrower or such Subsidiary than it would obtain in a comparable arm’s-length
transaction with a Person not an Affiliate; provided, however,
that this Section 5.01(h) shall not apply to transactions between or among the
Borrower and its Subsidiaries.


 


(i)  Reporting Requirements.  Furnish to the Lenders:


 


(i)                                     as
soon as available and in any event within 50 days after the end of each of the
first three quarters of each fiscal year of the Borrower, the Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such
quarter and Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly certified (subject to
year-end audit adjustments) by a Responsible Officer as having been prepared in
accordance with generally accepted accounting principles, together with a
certificate of a Responsible Officer as to compliance with the terms of this
Agreement and setting forth, in a form reasonably satisfactory to the Agent,
the calculations necessary to demonstrate compliance with Section 5.03 (a “Compliance
Certificate”), provided that in the event of any change in generally
accepted accounting principles used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP;


 


(ii)                                  as
soon as available and in any event within 95 days after the end of each fiscal
year of the Borrower, a copy of the annual audit report for such year for the
Borrower and its Subsidiaries, containing the Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal year, in each case accompanied by an opinion of
KPMG LLP or other independent public accountants acceptable to the Required
Lenders that the Consolidated financial statements fairly present in all
material respects the financial position and results of operations and cash
flows of the Borrower and its Subsidiaries in conformity with generally
accepted accounting principles (without
qualification as to going concern or scope of audit), together with a
Compliance Certificate, provided that in the event of any change
in generally accepted accounting principles used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;


 


(iii)                               as
soon as possible and in any event within two Business Days after any
Responsible Officer obtains knowledge of the occurrence of any Default
continuing on the date of such statement, a statement of a Responsible Officer
setting forth details of such Default or other event and the action that the
Borrower has taken and proposes to take with respect thereto;


 


(iv)                              promptly
after the sending or filing thereof, copies of all quarterly and annual reports
and proxy solicitations that the Borrower sends to its public securityholders,
and copies of all reports on Form 8-K that the Borrower or any Subsidiary files
with the Securities and Exchange Commission;


 


(v)                                 promptly
after, and in any event within two Business Days after a Specified Officer
obtains knowledge of, the commencement thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator affecting the
Borrower or any of its Subsidiaries of the type described in
Section 4.01(f); and


 


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(vi)                              such other information respecting the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to time reasonably
request.


 


SECTION 5.02.  Negative
Covenants


 


So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will not:


 


(a)                                  Liens,
Etc.  Create or suffer to exist, or
permit any of its Subsidiaries to create or suffer to exist, any Lien on or
with respect to any of its properties, whether now owned or hereafter acquired,
or assign, or permit any of its Subsidiaries to assign, any right to receive
income (except by a Subsidiary in favor of the Borrower or any of its
Subsidiaries), other than:


 


(i)                                     Permitted
Liens,


 


(ii)                                  purchase
money Liens (including capital leases) upon or in any real or personal property
(tangible or intangible) acquired or held by the Borrower or any Subsidiary to
secure the purchase price of such property or to secure Debt incurred solely
for the purpose of financing the acquisition, construction or improvement of
such property, or Liens existing on such property at the time of its
acquisition (other than any such Liens created in contemplation of such
acquisition that were not incurred to finance the acquisition of such property)
or extensions, renewals or replacements of any of the foregoing for the same or
a lesser amount, provided, however, that no such Lien shall
extend to or cover any properties of any character other than the property
being acquired, constructed or improved and the proceeds thereof and no such
extension, renewal or replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed or replaced and the
proceeds thereof, provided, further that the aggregate principal
amount of the indebtedness secured by the Liens referred to in this
clause (ii) shall not exceed 100% of the fair market value of property so
acquired at the time of acquisition.


 


(iii)                               the Liens existing on the Effective Date and described on
Schedule 5.02(a) hereto,


 


(iv)                              Liens
on property of a Person existing at the time such Person is merged into or
consolidated with the Borrower or any Subsidiary of the Borrower or becomes a
Subsidiary of the Borrower or on assets acquired by the Borrower or any
Subsidiary of the Borrower existing at the time that such assets are acquired; provided
that such Liens were not created in contemplation of such merger, consolidation
or acquisition and do not extend to any assets other than those of the Person
so merged into or consolidated with the Borrower or such Subsidiary or acquired
by the Borrower or such Subsidiary, and proceeds thereof,


 


(v)                                 possessory rights of customers of the Borrower and its Subsidiaries in
Equipment for Resale arising under leases, bailment arrangements and rental
agreements entered into in the ordinary course of business of the Borrower or
such Subsidiary,


 


(vi)                              Liens upon specific items of Inventory and
the proceeds thereof securing the obligations of the Borrower or any of its
Subsidiaries in respect of bankers’ acceptances issued or created for the
account of the Borrower or such Subsidiary to facilitate the purchase, shipment
or storage of such Inventory,


 


(vii)                           Liens
arising in connection with trade letters of credit issued to secure the
purchase of Inventory in the ordinary course of business of the Borrower and
its Subsidiaries, provided that such Liens shall cover only the
documents in respect of which such letters of credit were issued, the goods
covered thereby and the insurance proceeds of such goods,


 


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(viii)                        Liens
arising out of judgments or awards (other than any judgment described in
Section 6.01(f) or (g) hereof and constituting an Event of Default thereunder)
in respect of which, within 30 days after the imposition thereof, the Borrower
or any of its Subsidiaries shall in good faith be prosecuting an appeal or
proceedings for review and shall have secured a subsisting stay of execution
pending such appeal or proceedings for review, provided it shall have set aside
on its books adequate reserves, in accordance with GAAP, with respect to such
judgment or award,


 


(ix)                                security and other deposits made by the Borrower or any
Subsidiary of the Borrower under the terms of any lease or sublease of property
entered into by the Borrower or any such Subsidiary in the ordinary course of
business,


 


(x)                                   voluntary Liens in favor of the PBGC arising in connection with any insufficiency
resulting from the actions of, and with respect to any Plan of the Borrower or
any ERISA Affiliate, securing obligations not exceeding $75,000,000,


 


(xi)                                other Liens securing Debt in an aggregate principal amount
not to exceed $75,000,000 at any time outstanding,


 


(xii)                             sales
or discounts in the ordinary course of business by the Borrower or any
Subsidiary of the Borrower of customer leases or other receivables for cash in
an amount not less than the fair market value thereof (after taking into
account customary reserves for losses, yield protection, fees and similar
matters), and


 


(xiii)                          the
replacement, extension or renewal of any Lien permitted by clause (iii) or
(iv) above upon or in the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the amount by more than
the sum of accrued and unpaid interest and normal and customary costs, fees and
expenses payable in connection therewith or change in any direct or contingent
obligor) of the Debt secured thereby.


 


(b)  Mergers, Etc.  Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any of its Subsidiaries
to do so, except that (i) any Subsidiary of the Borrower may merge or
consolidate with or into, or dispose of assets to, any other Subsidiary of the
Borrower, (ii) any Subsidiary of the Borrower may merge into or dispose of
assets to the Borrower, (iii) the Borrower may merge with any other Person so
long as the Borrower is the surviving corporation, and (iv) any Subsidiary of
the Borrower may merge into or dispose of its assets to any other Person so
long as such merger or disposition does not involve all or substantially all of
the assets of the Borrower and its Subsidiaries taken as a whole; provided,
in each case, that no Default shall have occurred and be continuing at the time
of such proposed transaction or would result therefrom.  Any voluntary liquidation, dissolution or
winding up of any Subsidiary of the Borrower shall be deemed to be a merger for
purposes of this subsection.


 


(c)  Accounting Changes.  Make or permit, or permit any of its
Subsidiaries to make or permit, any significant change in accounting policies
or reporting practices, except as required or permitted by generally accepted
accounting principles or any applicable law, rule or regulation, except that
any Subsidiary may change its fiscal year to that of the Borrower.


 


(d)  Change in
Nature of Business.  Permit the
material business activities, taken as a whole, of the Borrower and its
Subsidiaries to be altered in any substantial and material way.


 


(e)  Speculative Transactions.  Engage, or permit any of its Subsidiaries to
engage, in any transaction involving commodity options or futures contracts or
any similar speculative transactions except to hedge the exposure of the
Borrower or its Subsidiaries to the underlying commodity, interest rate or
foreign currency.


 


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(f)  Subsidiary Debt.  Permit its Subsidiaries to incur Debt to a
Person other than the Borrower or any of its Subsidiaries in excess of
$250,000,000, in the aggregate, at any time outstanding.


 


SECTION 5.03.   Financial CovenantsSo long as
any Advance shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will:


 


(a)  Leverage Ratio.  Maintain, at the end of each fiscal quarter
of the Borrower, a ratio of Consolidated Funded Debt as of such date to
Consolidated EBITDA for the four fiscal quarters ending on such date of not
greater than 3.25:1.00.


 


(b)  Interest Coverage Ratio.  Maintain, at the end of each fiscal quarter
of the Borrower, a ratio of Consolidated EBITDA to Interest Expense of not less
than 3.5:1.0 for the four fiscal quarters ending on such date.


 


ARTICLE VI


 


EVENTS OF DEFAULT


 


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


 


(a)  The Borrower shall fail to pay any principal
of any Advance when the same becomes due and payable; or the Borrower shall
fail to pay any interest on any Advance or make any other payment of fees or
other amounts payable under this Agreement or any Note within three Business
Days after the same becomes due and payable; or


 


(b)  Any representation or warranty made or deemed
made by the Borrower herein or by the Borrower (or any of its officers) in
connection with this Agreement shall prove to have been incorrect in any
material respect when made or deemed made; or


 


(c)  (i) The Borrower shall fail to perform or
observe any term, covenant or agreement contained in Section 5.01(d), (e)
or (i)(iii), 5.02 or 5.03, (ii) the Borrower shall fail to perform or
observe any other term, covenant or agreement contained in Section 5.01(i)
(other than clause (iii) thereof) if such failure shall remain unremedied for
three Business Days after the earlier of (A) knowledge thereof by any Specified
Officer and (B) the date on which written notice thereof shall have been given
to the Borrower by the Agent or any Lender; or (iii) the Borrower shall
fail to perform or observe any other term, covenant or agreement contained in
this Agreement on its part to be performed or observed if such failure shall
remain unremedied for 30 days after the earlier of (A) knowledge thereof by any
Specified Officer and (B) the date on which written notice thereof shall have
been given to the Borrower by the Agent or any Lender; or


 


(d)  The Borrower or any of its Subsidiaries shall
fail to pay any principal of or premium or interest on any Debt that is
outstanding in a principal or notional amount of at least $75,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, and as a result thereof the
maturity of such Debt is accelerated; or any such Debt shall be declared to be
due and payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity thereof (except for (x)
any secured debt that becomes due by reason of the sale or other disposition of
the asset securing such debt provided such debt is repaid at the


 


31





















 


time of such sale
or disposition and (y) any debt of a Subsidiary that becomes due by reason of
the sale or other disposition of such Subsidiary provided such debt is repaid
at the time of such sale or disposition); or


 


(e)  The Borrower or any of its Significant
Subsidiaries shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or shall make
a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Significant Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors (except for any such liquidation or
winding up of any Significant Subsidiary of the Borrower permitted under this
Agreement), or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall
occur; or the Borrower or any of its Significant Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
subsection (e); or


 


(f)  Judgments or orders for the payment of money
in excess of $75,000,000 in the aggregate shall be rendered against the
Borrower or any of its Significant Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; provided, however,
that any such judgment or order shall not be an Event of Default under this
Section 6.01(f) to the extent that and for so long as (i) the amount
of such judgment or order is covered by a valid and binding policy of insurance
between the defendant and the insurer covering payment thereof and
(ii) such insurer, which shall be rated at least “A” by A.M. Best Company,
has been notified of, and has not declined the claim made for payment of, the
amount of such judgment or order; or


 


(g)  Any non-monetary judgment or order shall be
rendered against the Borrower or any of its Subsidiaries that is reasonably
likely to have a Material Adverse Effect, and there shall be any period of 10
consecutive Business Days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall not be in effect;
or


 


(h)  (i) Any Person or two or more Persons
acting in concert shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of Voting Stock of
the Borrower (or other securities convertible into such Voting Stock)
representing 40% or more of the combined voting power of all Voting Stock of
the Borrower; or (ii) during any period of up to 12 consecutive months,
commencing before or after the date of this Agreement, individuals who at the
beginning of such 12-month period were directors of the Borrower shall cease
for any reason to constitute a majority of the board of directors of the
Borrower; or (iii) any Person or two or more Persons acting in concert
shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or their
acquisition of the power to exercise, directly or indirectly, a controlling
influence over the management or policies of the Borrower; or


 


(i)  The Borrower or any of its ERISA Affiliates
shall incur, or, in the reasonable opinion of the Required Lenders, shall be
reasonably likely to incur liability in excess of $75,000,000 in the aggregate
as a result of one or more of the following: 
(i) the occurrence of any ERISA Event; (ii) the partial or
complete withdrawal of the Borrower or any of its ERISA Affiliates from a
Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan; or


 


(j)  The Borrower asserts, or a final
non-appealable determination is rendered by a court of competent jurisdiction
to the effect, that this Agreement or any of the Notes is invalid or
unenforceable.


 


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then, and in any such event, the Agent (i) shall
at the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the Advances, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for
relief with respect to the Borrower under the Federal Bankruptcy Code,
(A) the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Advances, all such interest and all such amounts
shall automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.


 


ARTICLE VII


 


THE AGENT


 


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


 


SECTION 7.02.  Agent’s
Reliance, Etc.  Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful
misconduct.  Without limitation of the
generality of the foregoing, the Agent: 
(i) may treat the payee of any Note as the holder thereof until the
Agent receives and accepts an Assumption Agreement entered into by an Assuming
Lender as provided in Section 2.16 or 2.17, as the case may be, or an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel
for the Borrower), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender and shall
not be responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement;
(iv) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or the existence at
any time of any Default or to inspect the property (including the books and
records) of the Borrower; (v) shall not be responsible to any Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document furnished
pursuant hereto; and (vi) shall incur no liability under or in respect of
this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by facsimile transmission or electronic
mail message) believed by it to be genuine and signed or sent by the proper
party or parties.


 


SECTION 7.03.   CUSA and Affiliates.  With respect to its
Commitment, the Advances made by it and the Note issued to it, CUSA shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated, include CUSA in its individual
capacity.  CUSA and its Affiliates may
accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if CUSA
were not the Agent and without any duty to account therefor to the
Lenders.  The Agent shall have no duty to
disclose any information


 


33





















 


obtained or received by it or
any of its Affiliates relating to the Borrower or any of its Subsidiaries to
the extent such information was obtained or received in any capacity other than
as Agent.


 


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


 


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


 


SECTION 7.06.  Successor Agent.  The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at
any time with or without cause by the Required Lenders.  Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent, provided
that the appointment of any such successor Agent shall be subject to the consent
of the Borrower (not to be unreasonably withheld or delayed) so long as no
Event of Default has occurred and is continuing.  If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent’s giving of notice of resignation or
the Required Lenders’ removal of the retiring Agent, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$500,000,000.  Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement.  After any retiring Agent’s resignation or
removal hereunder as Agent, the provisions of this Article VII shall inure
to its benefit as to any actions taken or omitted to be taken by it while it
was Agent under this Agreement.


 


ARTICLE VIII


 


MISCELLANEOUS


 


SECTION 8.01.  Amendments, Etc.  No
amendment or waiver of any provision of this Agreement or the Notes, nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required
Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing
and signed by all the Lenders, do any of the following:  (a) waive any of the conditions
specified in Section 3.01, (b) except as otherwise provided herein,
increase the Commitments of the Lenders or any Lender’s percentage thereof,
(c) reduce the principal of, or interest on, the Notes or any fees or
other


 


34





















 


amounts payable hereunder, (d)
except as otherwise provided herein, postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Lenders, that
shall be required for the Lenders or any of them to take any action hereunder
or (f)  amend this Section 8.01; and provided, further
that (x) no amendment, waiver or consent shall, unless in writing and signed by
the Agent in addition to the Lenders required above to take such action, affect
the rights or duties of the Agent under this Agreement or any Note and (y)
Section 2.15 may be amended or waived to permit the proceeds of the Advances to
be used for working capital and other general corporate purposes of the
Borrower and any of its Subsidiaries with the consent of the Agent.


 


SECTION 8.02.   Notices, Etc.  (a)  Except as set forth in Section 8.02(d) below,
all notices, requests, demands, and other communications relating this
Agreement which any party is required or desires to give to the other shall be
in writing, shall be sent by United States mail, commercial delivery service,
facsimile transmission or electronic mail and shall be addressed to the party
to receive the notice as specified in this Section.  Any party may change its address for notices
by sending a Notice pursuant to this Section 8.02.


 


(b)  Notices to
be sent to the Borrower via United States mail, delivery service or facsimile
transmission shall be addressed to the Borrower at its address at P.O. Box
3100, 4300 N. Harbor Blvd., Fullerton, CA 92834-3100, Attention: Treasurer
(Facsimile no.:  (714) 773-6840), with a
copy to the same address, Attention: General Counsel (Facsimile no.:  (714) 773-7936).  Notices to be delivered to any Initial Lender
shall be addressed to the Initial Lender at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender,
at its Domestic Lending Office specified in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Agent, at its address at 2 Penns Way, Suite 200, New Castle, Delaware 19720,
Attention: Bank Loan Syndications (Facsimile no.: (212) 994-0961).  Each party shall designate an address for the
delivery of electronic mail messages at the written request of any other party.


 


(c)  Notices
sent by United States Mail shall be sent by first class mail, registered or
certified, postage prepaid, and properly addressed and shall be deemed to have
been given on the date actually received or the fifth day after mailing,
whichever is earlier.  Notices sent by
commercial delivery service shall be sent using a service that provides
traceability of packages and shall be deemed given on the date actually
received or on the third business day after the date they are picked up by the
delivery service.  Notices given by
facsimile transmission shall be deemed given on the next business day after the
date transmitted, provided a confirming signed original is mailed to the party
to whom the notice is addressed on the date it is transmitted.  Electronic mail messages shall be deemed
given to the addressee of such message only upon receipt of a reply electronic
mail message confirming receipt, except that in the case of any Communications
(as defined in clause (d) below) delivered in accordance with clause (d) below,
notification from Interlinks that such Communications have been posted to
Intralinks shall serve as a reply electronic mail message for purposes of this
clause (c); provided, however, that an automated “out of office”
or similar reply message shall not be deemed to confirm receipt.


 


(d)  So long as
CUSA or any of its Affiliates is the Agent, materials required to be delivered
pursuant to Section 5.01(i)(i), (ii) and (iv) shall be
delivered to the Agent in an electronic medium in a format acceptable to the
Agent and the Lenders by e-mail at oploanswebadmin@citigroup.com, and such
delivery shall satisfy the obligations of the Borrower to deliver such
materials to the Lenders.  The Borrower
agrees that the Agent may make such materials, and with the prior consent of
the Borrower any other written information, documents, instruments and other
material relating to the Borrower, any of its Subsidiaries or any other
materials or matters relating to this Agreement, the Notes or any of the
transactions contemplated hereby (collectively, the “Communications”)
available to the Lenders by posting such notices on Intralinks or a substantially
similar electronic system (the “Platform”).  The Borrower acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided “as is” and “as available” and
(iii) neither the Agent nor any of its Affiliates warrants the accuracy,
adequacy or completeness of the Communications or the Platform and each
expressly disclaims liability for errors or omissions in the Communications or
the Platform.  No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the
Agent or any of its Affiliates in connection with the Platform.


 


35





















 


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


 


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


 


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


 


(b)  The
Borrower agrees to indemnify and hold harmless the Agent, each Arranger and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an “Indemnified Party”) from and
against any and all liabilities, obligations, claims, damages, losses,
penalties, actions, judgments, suits, costs, disbursements and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this
Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, except to the extent such liability, obligation,
claim, damage, loss, penalty, action, judgment, suit, cost, disbursement or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s gross negligence or
willful misconduct, in each case regardless of whether the event giving rise to
such liability shall have occurred prior to, on or after the date hereof.  In the case of an investigation, litigation
or other proceeding to which the indemnity in this Section 8.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors,
equityholders or creditors or an Indemnified Party or any other Person, whether
or not any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated.  Notwithstanding any other provisions to the
contrary herein, no obligation to indemnify and hold harmless any Indemnified
Party under this Section arises from a failure by such Indemnified Party to
comply with any laws, regulations, rules or orders that may apply to its
business, or a failure by such Indemnified Party to possess the capacity to
participate in the transactions contemplated by this Agreement or to take all
actions necessary to authorize its participation in such transactions.  The Borrower also agrees not to assert any
claim for special, indirect, consequential or punitive damages against the
Agent, any Lender, any of their Affiliates, or any of their respective directors,
officers, employees, attorneys and agents, on any theory of liability arising
out of or otherwise relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances.


 


(c)  If
any payment of principal of, or Conversion of, any Eurodollar Rate Advance is
made by the Borrower to or for the account of a Lender other than on the last
day of the Interest Period for such Advance, as a


 


36





















 


result of a payment or
Conversion pursuant to Section 2.07(d) or (e), 2.09 or 2.11, acceleration
of the maturity of the Notes pursuant to Section 6.01 or for any other
reason, the Borrower shall, within seven days following demand by such Lender
accompanied by a calculation in reasonable detail of the amount demanded (with
a copy of such demand to the Agent), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such
payment or Conversion, including, without limitation, any loss (including loss
of anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.


 


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


 


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


 


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


 


SECTION 8.07. 
Assignments and Participations.  (a) 
Each Lender may assign to one or more Persons all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the Advances owing to it and the Note or Notes
held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender
or an assignment of all of a Lender’s rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee, and
(iv) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note subject to such assignment and a processing
and recordation fee of $3,500.  Upon such
execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and
(y) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under
Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to
an event arising prior to such assignment) and be released from its obligations
under this Agreement (other than its obligations under Section 7.05 to the
extent any claim thereunder relates to an event arising prior to such
assignment) (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto).


 


37





















 


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


 


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


 


(d)  Upon
its receipt of an Assignment and Acceptance executed by an assigning Lender and
an assignee representing that it is an Eligible Assignee, together with any
Note or Notes subject to such assignment, the Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the form of
Exhibit C hereto, (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.  Within five Business Days after its receipt
of such notice, the Borrower, at its own expense, shall execute and deliver to
the Agent in exchange for the surrendered Note a new Note to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it pursuant
to such Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder, a new Note to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder.  Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of
Exhibit A hereto.


 


(e)  Each
Lender may sell participations to one or more banks or other entities (other
than the Borrower or any of its Affiliates) approved by the Borrower (unless an
Event of Default has occurred and is continuing at the time any participation
is effected), such approval not to be unreasonably withheld or delayed (it
being understood that any objection by the Borrower to any Person reasonably
considered by the Borrower to be a competitor, or an Affiliate of a competitor,
of the Borrower shall be deemed to be not unreasonable); in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and
the Note or Notes held by it); provided, however, that
(i) such Lender’s obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce


 


38





















 


the principal of, or interest
on, the Notes or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation, or postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.


 


(f)  Any
Lender may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 8.07, disclose to the
assignee or participant or proposed assignee or participant, in each case, that
is an Eligible Assignee or has otherwise been approved by the Borrower, or an
SPC, any information relating to the Borrower furnished to such Lender by or on
behalf of the Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant or SPC shall agree
to preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender in accordance with Section 8.08.


 


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


 


(h)  Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle sponsored, administered or
managed by the Granting Lender (a “SPC”), identified as such in writing
from time to time by the Granting Lender to the Agent and the Borrower, the
option to provide to the Borrower all or any part of any Advance that such
Granting Lender would otherwise be obligated to make to the Borrower pursuant
to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Advance, (ii) no SPC shall, solely by reason
of any such grant or any Advance made by such SPC thereunder, be deemed to be a
Lender hereunder, and (iii) the Granting Lender shall not be relieved of any of
its obligations under this Agreement by reason of any such grant and, if an SPC
elects not to exercise such option or otherwise fails to provide all or any
part of such Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof. 
The making of an Advance by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Advance were made by
such Granting Lender.  Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the
Granting Lender).  In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any
other person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof with respect to any claim arising out of, or
relating to, this Agreement or any Note or the performance or non-performance
of any obligation thereunder.  In
addition, notwithstanding anything to the contrary contained in this Section
8.07(h), any SPC may (A) with notice to, but without (except as provided below)
the prior written consent of, the Borrower and the Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any
Advances to the Granting Lender or, with the consent of the Borrower and the
Agent, to any financial institutions providing liquidity and/or credit support
to or for the account of such SPC to support the funding or maintenance of
Advances and (B) disclose on a confidential basis (subject to the same terms as
set forth in Section 8.08 with respect to the disclosure of any Confidential
Information to assignees and participants) any non-public information relating
to its Advances to any rating agency, commercial paper dealer or provider of
any surety, guarantee or credit or liquidity enhancement to such SPC.  For the avoidance of doubt, notwithstanding
anything in this Section 8.07(h) to the contrary, no SPC nor any institution
providing liquidity and/or credit support to, or for the account of, such SPC
shall be entitled to the benefits of a Lender under this Agreement, including,
but not limited to, the benefits under Sections 2.10 or 2.13 or any
indemnification provisions, and the Granting Lender shall for all purposes,
including any consent, approval or waiver hereunder, continue to be the Lender
entitled to all the rights and benefits of a Lender under this Agreement, and
bound by the obligations of a Lender hereunder, provided that in any case any
such SPC (or any assignee thereof) shall be entitled to receive payments due in
respect of any Advance made by such SPC hereunder.  The Granting Lender hereby agrees to
indemnify and hold harmless the Borrower from any additional cost or expense
incurred by the Borrower in connection with the transactions contemplated by
this Section 8.07(h) with respect to any grant made by such Granting Lender to
any SPC.  This section may not be amended
without the written consent of the SPC.


 


39





















 


SECTION 8.08.  Confidentiality.  Neither the Agent nor any Lender shall
disclose any Confidential Information to any other Person without the consent
of the Borrower, other than (a) to the Agent’s or such Lender’s Affiliates
and their officers, directors, employees, agents and advisors and, as
contemplated by Section 8.07(f), to actual or prospective assignees and
participants and SPCs, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process; provided that
unless specifically prohibited by applicable law or court order each Lender and
the Agent shall use reasonable efforts to endeavor to notify the Borrower of
any request of any governmental authority (other than any such request in connection
with an examination of the financial condition or operation of such Lender or
the Agent) for disclosure of any confidential information prior to disclosure
thereof and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking. Before the Agent or any
Lender discloses any Confidential Information to any actual or prospective
assignees and participants or SPCs, the Agent or Lender wishing to disclose the
Confidential Information shall obtain the written agreement of the proposed
recipient to keep the information confidential. 
Each such written agreement shall state that it is for the benefit of
and may be enforced by Borrower and a copy of the written agreement signed by
the proposed recipient shall be sent to Borrower.


 


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


 


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


 


SECTION 8.11.  Jurisdiction,
Etc.  (a)  Each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United
States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and determined
in any such New York State court or, to the extent permitted by law, in
such federal court.  Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or
the Notes in the courts of any jurisdiction.


 


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


 


SECTION 8.12.  Patriot Act Notice.  Each Lender and the Agent (for itself and not
on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
or the Agent, as applicable, to identify the Borrower in accordance with the
Patriot Act.  The Borrower shall provide,
to the extent commercially reasonable, such information and take such actions
as are reasonably requested by the Agent or any Lenders in order to assist the
Agent and the Lenders in maintaining compliance with the Patriot Act.


 


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


 


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


 


40





















 


	
   

  	
  BECKMAN COULTER, INC.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ PAUL GLYER

  	
   

  
	
   

  	
   

  	
  Name:
  Paul Glyer

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITICORP USA, INC.,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ JASON ZEROLL

  	
   

  
	
   

  	
   

  	
  Name:
  Jason Zeroll

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


Initial Lenders


 


Commitment


 


	
  $50,000,000

  	
  CITICORP USA, INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ JASON ZEROLL

  	
   

  
	
   

  	
   

  	
  Name:
  Jason Zeroll

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
  $50,000,000

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ PETER D. GRIFFITH

  	
   

  
	
   

  	
   

  	
  Name:
  Peter D. Griffith

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
  $25,000,000

  	
  ABN AMRO BANK N.V.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ ERIC OPPENHEIMER

  	
   

  
	
   

  	
   

  	
  Name:
  Eric Oppenheimer

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ KEVIN LEGALLO

  	
   

  
	
   

  	
   

  	
  Name:
  Kevin LeGallo

  
	
   

  	
   

  	
  Title:
  Associate

  



 


41





















 


	
  $25,000,000

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ STEPHEN C. PRICE

  	
   

  
	
   

  	
   

  	
  Name:
  Stephen C. Price

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
  $25,000,000

  	
  MELLON BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ DAVID B. WIRL

  	
   

  
	
   

  	
   

  	
  Name:
  David B. Wirl

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
  $25,000,000

  	
  MORGAN STANLEY BANK

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ DANIEL TWENGE

  	
   

  
	
   

  	
   

  	
  Name:
  Daniel Twenge

  
	
   

  	
   

  	
  Title:
  Vice President, Morgan Stanley Bank

  
	
   

  	
   

  
	
  $25,000,000

  	
  COOPERATIVE CENTRALE
  RAIFFEISEN-BOERENLEENBANK BA “RABOBANK INTERNATIONAL”, NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ J. DAVID THOMAS

  	
   

  
	
   

  	
   

  	
  Name:
  J. David Thomas

  
	
   

  	
   

  	
  Title:
  Executive Director

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ BRETT DELFINO

  	
   

  
	
   

  	
   

  	
  Name:
  Brett Delfino

  
	
   

  	
   

  	
  Title:
  Executive Director

  
	
   

  	
   

  
	
  $25,000,000

  	
  THE BANK OF NOVA SCOTIA

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ CAROLYN A. CALLOWAY

  	
   

  
	
   

  	
   

  	
  Name:
  Carolyn A. Calloway

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
  $25,000,000

  	
  UBS LOAN FINANCE LLC

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ JOSELIN FERNANDES

  	
   

  
	
   

  	
   

  	
  Name:
  Joselin Fernandes

  
	
   

  	
   

  	
  Title:
  Associate Director Banking Products

  Services, US

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ DORIS MESA

  	
   

  
	
   

  	
   

  	
  Name:
  Doris Mesa

  
	
   

  	
   

  	
  Title:
  Associate Director Banking Products

  Services, US

  
	
   

  	
   

  
	
  $25,000,000

  	
  WELLS FARGO BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /S/ PAUL K. STIMPFL

  	
   

  
	
   

  	
   

  	
  Name:
  Paul K. Stimpfl

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
  $300,000,000.00

  	
  Total of the Commitments

  	
   

  
					



 


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