Exhibit
10(xv)


 


EXECUTION COPY


 


Published CUSIP Number:                           




 





$400,000,000


 


CREDIT
AGREEMENT


 


Dated as of
January 25, 2005


 


among


 


MCCORMICK
& COMPANY, INCORPORATED

as the Borrower,


 


BANK OF
AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and

L/C Issuer,


 


and


 


SUNTRUST
BANK

and

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Co-Syndication Agents,


 


and


 


WELLS
FARGO BANK, N.A.,  

and

BNP PARIBAS

as Co-Documentation Agents


 


and


 


The Other Lenders
Party Hereto


 


BANC OF
AMERICA SECURITIES LLC,

as Joint Lead
Arranger and Sole Book Manager,


 


and


 


SUNTRUST
ROBINSON HUMPHREY


 


and

WACHOVIA CAPITAL MARKETS LLC,

as Joint Lead Arrangers


 




 





 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS

  	
   

  
	
  1.01

  	
  Certain Defined
  Terms

  	
   

  
	
  1.02

  	
  Other
  Interpretive Provisions

  	
   

  
	
  1.03

  	
  Accounting
  Terms

  	
   

  
	
  1.04

  	
  Exchange
  Rates; Currency Equivalents.

  	
   

  
	
  1.05

  	
  Additional
  Alternative Currencies.

  	
   

  
	
  1.06

  	
  Change
  of Currency.

  	
   

  
	
  1.07

  	
  Rounding

  	
   

  
	
  1.08

  	
  Times
  of Day

  	
   

  
	
  1.09

  	
  Letter
  of Credit Amounts

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE CREDITS

  	
   

  
	
  2.01

  	
  Committed
  Loans

  	
   

  
	
  2.02

  	
  Borrowings,
  Conversions and Continuations of Committed Loans.

  	
   

  
	
  2.03

  	
  Bid
  Loans.

  	
   

  
	
  2.04

  	
  Letters
  of Credit.

  	
   

  
	
  2.05

  	
  Swing
  Line Loans.

  	
   

  
	
  2.06

  	
  Prepayments.

  	
   

  
	
  2.07

  	
  Termination
  or Reduction of Commitments

  	
   

  
	
  2.08

  	
  Repayment
  of Loans.

  	
   

  
	
  2.09

  	
  Interest.

  	
   

  
	
  2.10

  	
  Fees

  	
   

  
	
  2.11

  	
  Computation
  of Interest and Fees

  	
   

  
	
  2.12

  	
  Evidence
  of Debt.

  	
   

  
	
  2.13

  	
  Payments
  Generally; Administrative Agent’s Clawback.

  	
   

  
	
  2.14

  	
  Sharing
  of Payments by Lenders

  	
   

  
	
  2.15

  	
  Increase
  in Commitments.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  
	
  3.01

  	
  Taxes.

  	
   

  
	
  3.02

  	
  Illegality

  	
   

  
	
  3.03

  	
  Inability
  to Determine Rates

  	
   

  
	
  3.04

  	
  Increased
  Costs.

  	
   

  
	
  3.05

  	
  Compensation
  for Losses

  	
   

  
	
  3.06

  	
  Mitigation
  Obligations; Replacement of Lenders.

  	
   

  
	
  3.07

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
   

  
	
  4.01

  	
  Conditions
  of Initial Credit Extensions

  	
   

  
	
  4.02

  	
  Conditions
  to All Credit Extensions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  5.01

  	
  Organization,
  etc

  	
   

  



 


i





















 


	
  5.02

  	
  Due
  Authorization, Non-Contravention etc

  	
   

  
	
  5.03

  	
  Government
  Approval Regulation, etc

  	
   

  
	
  5.04

  	
  Validity,
  etc

  	
   

  
	
  5.05

  	
  Financial
  Information

  	
   

  
	
  5.06

  	
  No
  Material Adverse Change

  	
   

  
	
  5.07

  	
  Litigation,
  Labor Controversies, etc

  	
   

  
	
  5.08

  	
  Subsidiaries

  	
   

  
	
  5.09

  	
  Ownership
  of Properties

  	
   

  
	
  5.10

  	
  Taxes

  	
   

  
	
  5.11

  	
  Pension
  and Welfare Plans

  	
   

  
	
  5.12

  	
  Environmental
  Warranties

  	
   

  
	
  5.13

  	
  Regulations
  U and X

  	
   

  
	
  5.14

  	
  Accuracy
  of Information

  	
   

  
	
  5.15

  	
  Compliance
  with Law; Absence of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
  6.01

  	
  Financial
  Information Reports, Notices, etc

  	
   

  
	
  6.02

  	
  Compliance
  with Laws, etc

  	
   

  
	
  6.03

  	
  Maintenance
  of Properties

  	
   

  
	
  6.04

  	
  Insurance

  	
   

  
	
  6.05

  	
  Books
  and Records

  	
   

  
	
  6.06

  	
  Environmental
  Covenant

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  NEGATIVE AND FINANCIAL COVENANTS

  	
   

  
	
  7.01

  	
  Transactions
  with Affiliates

  	
   

  
	
  7.02

  	
  Indebtedness

  	
   

  
	
  7.03

  	
  Liens

  	
   

  
	
  7.04

  	
  Mergers,
  Asset Dispositions, etc

  	
   

  
	
  7.05

  	
  EBIT
  to Interest Expense Ratio

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  EVENTS OF DEFAULT

  	
   

  
	
  8.01

  	
  Event
  of Default

  	
   

  
	
  8.02

  	
  Remedies
  Upon Event of Default

  	
   

  
	
  8.03

  	
  Application
  of Funds

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  THE AGENT

  	
   

  
	
  9.01

  	
  Appointment
  and Authority

  	
   

  
	
  9.02

  	
  Rights
  as a Lender

  	
   

  
	
  9.03

  	
  Exculpatory
  Provisions

  	
   

  
	
  9.04

  	
  Reliance
  by Administrative Agent

  	
   

  
	
  9.05

  	
  Delegation
  of Duties

  	
   

  
	
  9.06

  	
  Resignation
  of Administrative Agent

  	
   

  
	
  9.07

  	
  Non-Reliance
  on Administrative Agent and Other Lenders

  	
   

  
	
  9.08

  	
  No
  Other Duties, Etc

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  MISCELLANEOUS

  	
   

  
	
  10.01

  	
  Amendments,
  Etc

  	
   

  



 


ii





















 


	
  10.02

  	
  Notices;
  Effectiveness; Electronic Communication

  	
   

  
	
  10.03

  	
  No
  Waiver; Cumulative Remedies

  	
   

  
	
  10.04

  	
  Expenses;
  Indemnity; Damage Waiver

  	
   

  
	
  10.05

  	
  Payments
  Set Aside

  	
   

  
	
  10.06

  	
  Successors
  and Assigns.

  	
   

  
	
  10.07

  	
  Treatment
  of Certain Information; Confidentiality

  	
   

  
	
  10.08

  	
  Right
  of Setoff

  	
   

  
	
  10.09

  	
  Interest
  Rate Limitation

  	
   

  
	
  10.10

  	
  Counterparts;
  Integration; Effectiveness

  	
   

  
	
  10.11

  	
  Survival
  of Representations and Warranties

  	
   

  
	
  10.12

  	
  Severability

  	
   

  
	
  10.13

  	
  Replacement
  of Lenders

  	
   

  
	
  10.14

  	
  Governing
  Law; Jurisdiction; Etc.

  	
   

  
	
  10.15

  	
  Waiver
  of Jury Trial

  	
   

  
	
  10.16

  	
  USA
  PATRIOT Act Notice

  	
   

  
	
  10.17

  	
  Judgment
  Currency

  	
   

  
	
  10.18

  	
  Entire
  Agreement

  	
   

  



 


iii





















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  Schedule
  1.01

  	
  Mandatory
  Cost Formulae

  
	
  Schedule
  2.01

  	
  Commitments
  and Applicable Percentages

  
	
  Schedule
  5.07

  	
  Litigation

  
	
  Schedule
  5.08

  	
  Subsidiaries

  
	
  Schedule
  5.11

  	
  ERISA
  Matters

  
	
  Schedule
  5.12

  	
  Environmental
  Matters

  
	
  Schedule
  7.03

  	
  Permitted
  Liens

  
	
  Schedule
  10.02

  	
  Lending
  Offices; Addresses for Notices

  
	
  Schedule
  10.06

  	
  Processing
  and Recordation Fees

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Exhibit
  A

  	
  Form of
  Committed Loan Notice

  
	
  Exhibit
  B-1

  	
  Form of Bid
  Request

  
	
  Exhibit
  B-2

  	
  Form of
  Competitive Bid

  
	
  Exhibit
  C

  	
  Form of Swing
  Line Loan Notice

  
	
  Exhibit
  D

  	
  Form of Note

  
	
  Exhibit
  E

  	
  Form of
  Compliance Certificate

  
	
  Exhibit
  F

  	
  Form of
  Assignment and Assumption

  



 


iv





















 


CREDIT
AGREEMENT


 


This CREDIT AGREEMENT is
entered into as of January 25, 2005 among MCCORMICK
& COMPANY, INCORPORATED, a Maryland corporation (the “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), and BANK
OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.


 


The Borrower has requested that the Lenders provide a revolving credit
facility and the Lenders are willing to do so on the terms and conditions set
forth herein.


 


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


 


ARTICLE I

DEFINITIONS


 


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


 


“Absolute Rate” means a fixed rate of interest
expressed in multiples of 1/100th of one basis point.


 


“Absolute Rate Loan” means a Bid Loan that
bears interest at a rate determined with reference to an Absolute Rate.


 


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


 


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


 


“Administrative Questionnaire” means an
Administrative Questionnaire in a form supplied by the Administrative Agent.


 


“Affiliate” of any Person means any other
Person which, directly or indirectly, controls, is controlled by or is under
common control with such Person (excluding any trustee under, or any committee
with responsibility for administering, any Plan).  A Person shall be deemed to be “controlled by”
any other Person if such other Person possesses, directly or indirectly, power


 


(a)           to
vote 25% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing general partners; or


 


(b)           to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise;


 





















 


provided, however, that notwithstanding the foregoing, for
purposes of Section 10.06(b), an “Affiliate” shall be a Person engaged
in the business of banking who is controlled by, or under common control with,
a Lender.


 


“Aggregate Commitments” means the Commitments
of all the Lenders.


 


“Agreement” means this Credit Agreement as the
same may be amended, supplemented, amended and restated or otherwise modified
from time to time.


 


“Alternative Currency” means each of Euro,
Sterling and Yen and each other currency (other than Dollars) that is approved
in accordance with Section 1.05.


 


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


 


“Applicable Law” shall mean, in respect of any
Person, all provisions of constitutions, statutes, rules, regulations and
orders of governmental bodies or regulatory agencies applicable to such Person,
and all orders and decrees of all courts and arbitrators in proceedings or
actions to which the Person in question is a party or by which it is bound.


 


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


 


“Applicable Rate” means, from time to time, the
following basis points (b.p.) per annum, based upon the Debt Rating as set
forth below:


 


Applicable Rate (b.p.)


 


	
  Pricing

  Level

  	
   

  	
  Debt Ratings

  S&P/Moody’s

  	
   

  	
  Applicable

  Margin for

  Eurocurrency

  Rate Loan/

  Letter of

  Credit Fee

  	
   

  	
  Utilization

  Fee

  	
   

  	
  Facility

  	
   

  	
  Base Rate +

  	
   

  
	
  1

  	
   

  	
  >
  AA- / Aa3

  	
   

  	
  14.0

  	
   

  	
  5.0

  	
   

  	
  6.0

  	
   

  	
  0

  	
   

  
	
  2

  	
   

  	
  A+ / A1

  	
   

  	
  15.5

  	
   

  	
  5.0

  	
   

  	
  7.0

  	
   

  	
  0

  	
   

  
	
  3

  	
   

  	
  A / A2

  	
   

  	
  17.0

  	
   

  	
  5.0

  	
   

  	
  8.0

  	
   

  	
  0

  	
   

  
	
  4

  	
   

  	
  A- / A3

  	
   

  	
  26.0

  	
   

  	
  10.0

  	
   

  	
  9.0

  	
   

  	
  0

  	
   

  
	
  5

  	
   

  	
  <
  BBB+ / Baa1

  	
   

  	
  37.5

  	
   

  	
  12.5

  	
   

  	
  12.5

  	
   

  	
  0

  	
   

  



 





















 


“Debt Rating” means, as of any date of
determination, the rating as determined by
S&P and Moody’s (collectively, the “Debt Ratings”) of the Borrower’s
non-credit-enhanced, senior unsecured long-term debt; provided that if a
Debt Rating is issued by each of the foregoing rating agencies, then the higher
of such Debt Ratings shall apply (with the Debt Rating for Pricing Level 1
being the highest and the Debt Rating for Pricing Level 5 being the lowest),
unless there is a split in Debt Ratings of more than one level, in which case
the Pricing Level that is one Pricing Level lower than the higher Debt Rating
shall apply.


 


Initially, the Applicable Rate shall be determined
based upon the Debt Rating specified in the certificate delivered pursuant to Section
4.01(f)(iv).  Thereafter, each change
in the Applicable Rate resulting from a publicly announced change in the Debt
Rating shall be effective, in the case of an upgrade, during the period
commencing on the date of the public announcement thereof and ending on the
date immediately preceding the effective date of the next such change and, in
the case of a downgrade, during the period commencing on the date of the public
announcement thereof and ending on the date immediately preceding the effective
date of the next such change.


 


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


 


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


 


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


 


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


 


“Attributable Value” means, as to any
particular Sale-Leaseback Transaction under which any Person is at the time
liable, at any date as of which the amount thereof is to be determined (a) in
the case of any such transaction involving a Capitalized Lease, the amount on
such date of


 





















 


the Capitalized Lease
Obligation thereunder, or (b) in the case of any other such transaction, the
then present value of the minimum rental obligation under such transaction
during the remaining term thereof (after giving effect to any extensions at the
option of the lessor), computed by discounting the respective rental or other
payments at the actual interest factor included in such payment or, if such interest
factor cannot be readily determined, at the rate of 9.75% per annum, compounded
annually, or calculated in such other manner as may be required by GAAP in
effect at the time.  The amount of any
rental or other payment required to be made under any such transaction not
involving a Capitalized Lease may exclude amounts required to be paid by the
lessee (or equivalent party) on account of maintenance, repairs, insurance,
Taxes, assessments, utilities, operating and labor costs and similar charges.  In the case of any such transaction not
involving a Capitalized Lease which is terminable by the lessee (or equivalent
party) upon payment of a penalty, such rental or other payment may include the
amount of such penalty, in which case no rental or other payment shall be
considered as required to be paid under such transaction subsequent to the
first date on which it may be so terminated.


 


“Authorized Officer” means, relative to the
Borrower, those of its officers whose signatures and incumbency shall have been
certified to the Administrative Agent and the Lenders pursuant to Section
4.01(b) or any successor thereto.


 


“Availability Period” means the period from and
including the Closing Date to the earliest of (a) the Maturity Date, (b) the
date of termination of the Aggregate Commitments pursuant to Section 2.07,
and (c) the date of termination of the commitment of each Lender to make Loans
and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant
to Section 8.02.


 


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


 


“Bank of America Fee Letter” means the letter
agreement, dated as of December 10, 2004, among the Borrower, the
Administrative Agent and Banc of America Securities LLC.


 


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


 


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


 


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


 


“Bid Borrowing” means a borrowing consisting of
simultaneous Bid Loans of the same Type from each of the Lenders whose offer to
make one or more Bid Loans as part of such borrowing has been accepted under
the auction bidding procedures described in Section 2.03.


 





















 


“Bid Loan” has the meaning specified in Section
2.03(a).


 


“Bid Loan Lender” means, in respect of any Bid
Loan, the Lender making such Bid Loan to the Borrower.


 


“Bid Request” means a written request for one
or more Bid Loans substantially in the form of Exhibit B-1.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 





















 


“Capitalized Leases” means all monetary
obligations of the Borrower or any of its Subsidiaries under any leasing or
similar arrangements which, in accordance with GAAP, would be classified as
capitalized leases.


 


“Capitalized Lease Obligation” means, at any
time, the present value of the minimum net lease payments during the term of a
Capitalized Lease, computed as provided in the Statement of Financial
Accounting Standards No. 13, as amended from time to time.


 


“Cash Collateralize” has the meaning specified
in Section 2.04(g).


 


“CERCLA” means the Comprehensive Environmental
Response, Compensation and Liability Act of 1990, as amended.


 


“CERCLIS” means the Comprehensive Environmental
Response Compensation Liability Information System List.


 


“Change in Control” means (a) the acquisition
by any Person, or two or more Persons acting in concert, of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 51% or more of the
outstanding shares of voting stock of the Borrower after giving effect to
certain provisions of the Borrower’s Certificate of Incorporation with respect
to the conversion of non-voting stock to voting stock; provided,  however,
that acquisition by the Borrower’s pension plan or profit sharing plan of 51%
or more of the outstanding shares of the Borrower’s voting stock shall not
constitute a Change in Control; or (b) during any period of 12 consecutive
months, a majority of the members of the board of directors of the Borrower
cease to be composed of individuals (i) who were members of the board of
directors on the first day of such period, (ii) whose election or nomination to
the board of directors was approved by individuals referred to in clause (i)
above constituting at the time of such election or nomination at least a
majority of the board of directors or (iii) whose election or nomination to the
board of directors was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at least a
majority of the board of directors.


 


“Change in Law” means the occurrence, after the
date of this Agreement, of any of the following: (a) the adoption or
taking effect of any law, rule, regulation or treaty, (b) any change in
any law, rule regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or
issuance of any request, guideline or directive (whether or not having the
force of law) by any Governmental Authority.


 


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


 


“Code” means the Internal Revenue Code of 1986,
and all rules and regulations promulgated thereunder.


 


“Commitment” means, as to each Lender, its
obligation to (a) make Committed Loans to the Borrower pursuant to Section
2.01, (b) purchase participations in L/C Obligations, and (c) purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the Dollar amount set forth opposite such Lender’s
name on Schedule


 





















 


2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.


 


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


 


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


 


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


 


“Competitive Bid” means a written offer by a
Lender to make one or more Bid Loans, substantially in the form of Exhibit
B-2, duly completed and signed by a Lender.


 


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


 


“Consolidated Net Tangible Assets” means all assets of the Borrower and its
Subsidiaries appearing on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with GAAP minus goodwill and other
intangible assets other than prepaid allowances.


 


“Contingent Liability” means any agreement,
undertaking or arrangement by which any Person guarantees, endorses or
otherwise becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to supply
funds to, or otherwise to invest in, a debtor, or otherwise to assure a
creditor against loss) the indebtedness, obligation or any other liability of
any other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person.  The
amount of any Person’s obligation under any Contingent Liability shall (subject
to any limitation set forth therein) be deemed to be the outstanding principal
amount (or maximum amount, if larger) of the debt, obligation or other
liability guaranteed thereby.


 


“Controlled Group” means all members of a
controlled group of corporations and all members of a controlled group of
trades or businesses (whether or not incorporated) under common control which,
together with the Borrower, are treated as a single employer under Section
414(b) or 414(c) of the Code or Section 4001 of ERISA.


 


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


 


“Debt Rating” has the meaning set forth in the
definition of “Applicable Rate.”


 


“Debtor Relief Laws” means the Bankruptcy Code
of the United States, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium,


 





















 


rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.


 


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


 


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


 


“Defaulting Lender” means any Lender that (a)
has failed to fund any portion of the Committed Loans, participations in L/C
Obligations or participations in Swing Line Loans required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within
one Business Day of the date when due, unless the subject of a good faith
dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy
or insolvency proceeding.


 


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


 


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


 


“EBIT” means, for any period, the sum of the amounts
for such period of (a) Net Income (excluding any one-time non-recurring
charges), (b) Interest Expense and (c) charges for federal, state, local and
foreign income taxes, all determined in accordance with GAAP.


 


“Eligible Assignee” means (a) a Lender; (b) an
Affiliate of a Lender; (c) an Approved Fund, and (d) any other Person
(other than a natural person) approved by (i) the Administrative Agent, the L/C
Issuer and the Swing Line Lender, and (ii) unless an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries; and provided  further, however,
that an Eligible Assignee shall include only a Lender, an Affiliate of a Lender
or another Person, which, through its Lending Offices, is capable of lending
the applicable Alternative Currencies to the Borrower without the imposition of
any Taxes or additional Taxes, as the case may be.


 


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


 





















 


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


 


“Environmental Claims” means all claims,
however asserted, by any Governmental Authority or other Person alleging
potential liability or responsibility for violation of any Environmental Law or
for release or injury to the environment.


 


“Environmental Laws” means all applicable
federal, state or local statutes, laws, ordinances, codes, rules and
regulations (including consent decrees and administrative orders issued to the
Borrower or any Subsidiary) relating to the protection of public health and
safety from adverse impacts of Hazardous Materials in the environment.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in effect from time
to time.  References to sections of ERISA
also refer to any successor sections.


 


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


 


“Eurocurrency Base Rate” has the meaning
specified in the definition of “Eurocurrency Rate”.


 


“Eurocurrency Bid Margin” means the margin
above or below the Eurocurrency Base Rate to be added to or subtracted from the
Eurocurrency Base Rate, which margin shall be expressed in multiples of 1/100th
of one basis point.


 


“Eurocurrency Margin Bid Loan” means a Bid Loan
that bears interest at a rate based upon the Eurocurrency Base Rate.  All Eurocurrency Margin Bid Loans must be
denominated in Dollars.


 


“Eurocurrency Rate” means for any Interest
Period with respect to a Eurocurrency Rate Loan, a rate per annum determined by
the Administrative Agent pursuant to the following formula:


 




	
  Eurocurrency Rate =

  	
   

  	
  Eurocurrency Base Rate

  
	
   

  	
  1.00 –
  Eurocurrency Reserve Percentage

  






 


Where,


 


“Eurocurrency Base Rate” means, for such
Interest Period:


 


(a)           the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent
from time to time) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, for deposits in the relevant
currency (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period; or


 





















 


(b)           if
such rate is not available at such time for any reason, then the “Eurocurrency
Base Rate” for such Interest Period shall be the rate per annum determined by
the Administrative Agent to be the rate at which deposits in the relevant
currency for delivery on the first day of such Interest Period in Same Day
Funds in the approximate amount of the Eurocurrency Rate Loan being made,
continued or converted by Bank of America (or, in the case of a Bid Loan, the
applicable Bid Loan Lender) and with a term equivalent to such Interest Period
would be offered by Bank of America’s (or such Bid Loan Lender’s) London Branch
(or other Bank of America branch or Affiliate) to major banks in the London or
other offshore interbank market for such currency at their request at
approximately 11:00 a.m. (London time) two Business Days prior to (or, in the
case of Eurocurrency Rate Loans denominated in Sterling, the same Business Day
as) the commencement of such Interest Period; or


 


(c)           for
any Interest Period with respect to any Eurocurrency Rate Loan advanced by a
Lender required to comply with the relevant requirements of the Bank of England
and the Financial Services Authority of the United Kingdom, the sum of (i) the
rate determined in accordance with clauses (a) or (b) of this definition and
(ii) the Mandatory Cost for such Interest Period.


 


“Eurocurrency Reserve Percentage” means, for
any day during any Interest Period, the reserve percentage (expressed as a
decimal, carried out to five decimal places) in effect on such day, whether or
not applicable to any Lender, under regulations issued from time to time by the
FRB for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as “Eurocurrency liabilities”).  The Eurocurrency Rate for each outstanding
Eurocurrency Rate Loan shall be adjusted automatically as of the effective date
of any change in the Eurocurrency Reserve Percentage.


 


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


 


“Eurocurrency Rate Loan” means a Eurocurrency
Rate Committed Loan or a Eurocurrency Margin Bid Loan.


 


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


 


“Excluded Taxes” means, with respect to the
Administrative Agent, any Lender, the L/C Issuer or any other recipient of any
payment to be made by or on account of any obligation of the Borrower
hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes),
by the jurisdiction (or any political subdivision thereof) under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable Lending Office is
located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which the Borrower is located
and (c) in the case of a


 





















 


Foreign Lender (other
than an assignee pursuant to a request by the Borrower under Section 10.13),
any withholding tax that is imposed on amounts payable to such Foreign Lender
at the time such Foreign Lender becomes a party hereto (or designates a new
Lending Office) or is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply with Section
3.01(e), except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a).


 


“Existing Credit Agreements” means (a) that
certain $225,000,000 5 Year Credit Agreement among the Borrower, Wachovia Bank,
National Association, as administrative agent, and the other financial
institutions party thereto, dated as of June 19, 2001 (as amended and modified
from time to time) and (b) that certain $125,000,000 364 Day Credit Agreement
among the Borrower, Wachovia Bank, National Association, as administrative
agent, and the other financial institutions party thereto, dated as of June 19,
2001 (as amended and modified from time to time).


 


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


 


“Fee Letter” means the Bank of America Fee
Letter dated December 10, 2004.


 


“Fiscal Quarter” means any quarter of a Fiscal
Year.


 


“Fiscal Year” means any period of twelve
consecutive calendar months ending on November 30; references to a Fiscal Year
with a number corresponding to any calendar year (e.g., the “2000 Fiscal
Year”) refer to the Fiscal Year ending on the November 30 occurring during such
calendar year.


 


“Foreign Lender” means any Lender that is
organized under the laws of a jurisdiction other than that in which the
Borrower is resident for tax purposes. 
For purposes of this definition, the United States, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.


 


“FRB” means the Board of Governors of the
Federal Reserve System of the United States, and any Governmental Authority
succeeding to any of its principal functions.


 


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


 





















 


“GAAP” is defined in Section 1.03.


 


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


 


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


 


“Hazardous Material” means


 


(a)           any
“hazardous substance”, as defined by CERCLA;


 


(b)           any
“hazardous waste”, as defined by the Resource Conservation and Recovery Act, as
amended;


 


(c)           any
petroleum product; or


 


(d)           any
pollutant or contaminant or hazardous, dangerous or toxic chemical, material or
substance within the meaning of any other applicable federal, state or local
law, regulation, ordinance or requirement (including consent decrees and
administrative orders issued to the Borrower or any Subsidiary) relating to or
imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, all as amended or hereafter amended.


 


“Impermissible Qualification” means, relative
to the opinion or certification of any independent public accountant as to any
financial statement of the Borrower, any qualification or exception to such
opinion or certification


 


(a)           which
is of a “going concern” or similar nature;


 


(b)           which
relates to the limited scope of examination of matters relevant to such
financial statement; or


 


(c)           which
relates to the treatment or classification of any item in such financial
statement and which, as a condition to its removal, would require an adjustment
to such item the effect of which would be to cause the Borrower to be in
default of any of its obligations under Section 7.05.


 


“Indebtedness” of any Person means, without
duplication, any obligation (whether present or future, actual or contingent,
secured or unsecured, as principal or surety or otherwise) for the payment or
repayment of money which would be regarded as indebtedness in accordance with
GAAP, including all Contingent Liabilities of such Person in respect of any
such obligations.


 





















 


For all purposes of this Agreement, the Indebtedness
of any Person shall include the Indebtedness of any partnership in which such
Person is a general partner; provided, however, that the Indebtedness of
any Person shall not include any obligation of a partnership in which such
Person is a general partner to the extent that such obligation (including any
Contingent Liability) is limited by its terms.


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


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


 


“Interest Expense” means, for any period, all
as determined in accordance with GAAP, total interest expense, whether paid or
accrued (without duplication) (including the interest component of Capitalized
Lease Obligations), of the Borrower and its Subsidiaries on a consolidated
basis, including, without limitation, all bank fees, commissions, discounts and
other fees and charges owed with respect to letters of credit, but excluding,
however, amortization of discount, interest paid in property other than cash or
any other interest expense not payable in cash.


 


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


 


“Interest Period” means (a) as to each
Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency
Rate Loan is disbursed or (in the case of any Eurocurrency Rate Committed Loan)
converted to or continued as a Eurocurrency Rate Loan and ending on the date
one, two, three or six months thereafter, as selected by the Borrower in its
Committed Loan Notice or Bid Request, as the case may be, or, in the case of
Eurocurrency Rate Committed Loans, nine or twelve months if requested by the
Borrower and consented to by all the Lenders; and (b) as to each Absolute Rate
Loan, a period of not less than 14 days and not more than 180 days as selected
by the Borrower in its Bid Request; provided that:


 


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


 


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


 


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


 


“IRS” means the Internal Revenue Service, and
any Governmental Authority succeeding to any of its principal functions under
the Code.


 





















 


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


 


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


 


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


 


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


 


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


 


“L/C Issuer” means Bank of America in its
capacity as issuer of Letters of Credit hereunder, or any successor issuer of
Letters of Credit hereunder.


 


“L/C Obligations” means, as at any date of
determination, the aggregate amount available to be drawn under all outstanding
Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all
L/C Borrowings.  For purposes of computing
the amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.09.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of
the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


 


“Laws” means, collectively, all international,
foreign, federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and publicly available administrative or
judicial precedents or authorities, and all applicable administrative orders,
licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.


 


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


 


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


 


“Letter of Credit” means any letter of credit
issued hereunder.  A Letter of Credit may
only be issued in Dollars.


 





















 


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


 


“Letter of Credit Expiration Date” means the
day that is seven days prior to the Maturity Date then in effect (or, if such
day is not a Business Day, the next preceding Business Day).


 


“Letter of Credit Fee” has the meaning
specified in Section 2.04(i).


 


“Letter of Credit Sublimit” means an amount
equal to lesser of (a) $25,000,000 and (b) the Aggregate Commitments.  The Letter of Credit Sublimit is part of, and
not in addition to, the Aggregate Commitments.


 


“Lien” means any security interest, mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property to secure
payment of a debt or performance of an obligation or other priority or
preferential arrangement of any kind or nature whatsoever.


 


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


 


“Loan Documents” means this Agreement, each
Note, each Issuer Document and the Fee Letters.


 


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


 


“Material Adverse Effect” means any event which
will, or is reasonably likely to, have a material adverse effect on (a) the
financial condition, assets, liabilities, operations or business of the
Borrower and its Subsidiaries taken as a whole or (b) the Borrower’s ability to
perform and comply with its monetary obligations under this Agreement, the
Notes and each other Loan Document.


 


“Maturity Date” means January 25, 2010.


 


“Moody’s” means Moody’s Investors Service, Inc.
and any successor thereto.


 


“Net Income” means, for any period, with
respect to the Borrower and its Subsidiaries, income from continuing operations
of the Borrower and its Subsidiaries during such period, determined in
accordance with GAAP.


 


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


 


“Obligations” means all advances to, and debts,
liabilities, obligations, covenants and duties of, the Borrower arising under
or in connection with any Loan Document, Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against
the Borrower or any Affiliate thereof of


 





















 


any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such
proceeding.


 


“OFAC” means the U.S. Department of the
Treasury’s Office of Foreign Assets Control.


 


“Organic Document” means, (a) relative to the
Borrower, its certificate of incorporation, its by-laws and all shareholder
agreements, voting trusts and similar arrangements applicable to any of its
authorized shares of capital stock and (b) relative to any Subsidiary, its
applicable corporate, partnership, joint venture or limited liability company
organizational and governing documents and all arrangements applicable to any
of its equity, ownership or membership interests.


 


“Organization Documents” means, for any
corporation, the certificate or articles of incorporation, the bylaws, any
certificate of determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and all
applicable resolutions of the board of directors (or any committee thereof) of
such corporation.


 


“Other Taxes” means any present or future
stamp, court or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or from
the execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Documents.


 


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


 


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


 


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


 


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


 





















 


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


 


“Pension Plan” means a “pension plan,” as such
term is defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA
(other than a multiemployer plan as defined in Section 4001(a)(3) of ERISA),
and to which the Borrower or any corporation, trade or business that is, along
with the Borrower, a member of a Controlled Group, may have liability,
including any liability by reason of having been a substantial employer under
Section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under Section 4069 of ERISA.


 


“Person” means any individual, trustee,
corporation, general partnership, limited partnership, limited liability company,
joint stock company, firm, business association, trust, unincorporated
organization, bank, joint venture, government, governmental authority or any
other entity, whether acting in an individual, fiduciary or other capacity.


 


“Plan” means any Pension Plan or Welfare Plan.


 


“Principal Subsidiary” means a Subsidiary (a)
whose total assets or net sales (each such amount expressed on a consolidated
basis in the case of a Subsidiary which itself has Subsidiaries) represent,
respectively, not less than 15% of either the consolidated total assets or
consolidated net sales of the Borrower and its Subsidiaries, all as calculated
annually by reference to the immediately preceding Fiscal Year-end financial
data (consolidated or unconsolidated, as the case may be) of such Subsidiary
and the then latest Fiscal Year-end audited consolidated financial statements
of the Borrower, or (b) to which is transferred all or substantially all of the
assets or undertakings of a Principal Subsidiary.  A certificate by an Authorized Officer of the
Borrower as to whether a Subsidiary is or is not or was or was not a Principal
Subsidiary at a specified date shall, in the absence of manifest error, be
conclusive and binding.


 


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


 


“Release” means a “release,” as such
term is defined in CERCLA.


 


“Resource Conservation and Recovery Act” means
the Resource Conservation and Recovery Act, 42 U.S.C.  Section 6901, et  seq., as in
effect from time to time.


 


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


 


“Required Lenders” means, as of any date of
determination, Lenders having at least 51% of the Aggregate Commitments or, if
the commitment of each Lender to make Loans and the obligation of the L/C
Issuer to make L/C Credit Extensions have been terminated pursuant to Section
8.02, Lenders holding in the aggregate at least 51% of the Total
Outstandings (with the


 





















 


aggregate amount of each
Lender’s risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded
for purposes of making a determination of Required Lenders.


 


“Responsible Officer” means the chief executive officer, the
chief operating officer, the president, the chief financial officer, the
controller or the treasurer of the Borrower, or any other officer having
substantially the same authority and responsibility.


 


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


 


“Sale-Leaseback Transaction” means any arrangement, directly or
indirectly, with any Person whereby a seller or transferor shall sell or
otherwise transfer any real or personal property if, as part of the same
transaction or series of transactions, the seller or transferor shall then or
thereafter lease as lessee, or similarly acquire the right to possession or use
of, such sold or transferred property, or property which it intends to use
substantially to the same extent or for the same purpose as such sold or
transferred property, in any such case under any lease, agreement or other
arrangement, whether or not involving a Capitalized Lease, with the Person to
whom such property was sold or transferred (other than any such lease,
agreement or arrangement having a term, including renewals, not exceeding three
years) which obligates the seller or transferor to pay rent as lessee or make
any other payment to such Person for such possession or use.


 


“S&P” means Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc. and any successor thereto.


 


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


 


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


 


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


 


“Spot Rate” for a currency means the rate determined by the
Administrative Agent to be the rate quoted by the Person acting in such
capacity as the spot rate for the purchase by such Person of such currency with
another currency through its principal foreign exchange trading office at
approximately 10:00 a.m. on the date two Business Days prior to the date as of
which the foreign exchange computation is made; provided that the Administrative Agent may obtain


 





















 


such spot rate from
another financial institution designated by the Administrative Agent if the
Person acting in such capacity does not have as of the date of determination a
spot buying rate for any such currency.


 


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


 


“Subsidiary” means, with respect to any Person, any corporation,
partnership, joint venture, limited liability company or other business entity
of which more than 50% of the outstanding capital stock or other interests
having ordinary voting power to elect a majority of the board of directors or
other governing body of such entity (irrespective of whether at the time
securities or interests of any other class or classes of such entity shall or
might have voting power upon the occurrence of any contingency) is at the time,
directly or indirectly, beneficially owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person.  Unless otherwise
indicated, when used in this Agreement, the term “Subsidiary” shall refer to a
Subsidiary of the Borrower.


 


“Swing Line” means the revolving credit facility made available
by the Swing Line Lender pursuant to Section 2.05.


 


“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant
to Section 2.05.


 


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


 


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


 


“Swing Line Loan Notice” means a notice of a Swing Line
Borrowing pursuant to Section 2.05(b), which, if in writing, shall be
substantially in the form of Exhibit C.


 


“Swing Line Sublimit” means an amount equal to the lesser of (a)
$25,000,000 and (b) the Aggregate Commitments. 
The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.


 


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


 


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


 


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


 





















 


“Type” means (a) with respect to a Committed Loan, its character
as a Base Rate Loan or a Eurocurrency Rate Loan, and (b) with respect to a Bid
Loan, its character as an Absolute Rate Loan or a Eurocurrency Margin Bid Loan.


 


“United States” and “U.S.” each means the United States
of America.


 


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


 


Welfare Plan” means a “welfare plan,” as such
term is defined in Section 3(l) of ERISA.


 


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


 


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


 


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


 


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


 


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


 


1.03        Accounting Terms.  Unless otherwise specified, all
accounting terms used herein or in any other Loan Document shall be
interpreted, all accounting determinations and


 





















 


computations hereunder or thereunder (including under Sections 7.02
and 7.04) shall be made in accordance with generally accepted accounting
principles (“GAAP”) as in effect on the Closing Date of this Agreement, and all
financial statements required to be delivered hereunder or thereunder shall be
prepared in accordance with GAAP as in effect on the date of, or for the period
covered by, such financial statements, and applied in the preparation of the
financial statements referred to in Section 6.01.


 


1.04        Exchange
Rates; Currency Equivalents.


 


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


 


(b)           Wherever in this
Agreement in connection with a Committed Borrowing or the conversion,
continuation or prepayment of a Eurocurrency Rate Loan an amount, such as a
required minimum or multiple amount, is expressed in Dollars, but such
Committed Borrowing or Eurocurrency Rate Loan is denominated in an Alternative
Currency, such amount shall be the relevant Alternative Currency Equivalent of
such Dollar amount (rounded to the nearest unit of such Alternative Currency,
with 0.5 of a unit being rounded upward), as determined by the Administrative
Agent.


 


1.05        Additional
Alternative Currencies.


 


(a)           The Borrower may
from time to time request that Eurocurrency Rate Loans be made in a currency
other than those specifically listed in the definition of “Alternative
Currency;” provided that such requested currency is a lawful currency
(other than Dollars) that is readily available and freely transferable and
convertible into Dollars.  Any such
request shall be subject to the approval of the Administrative Agent and the
Lenders.


 


(b)           Any such request
shall be made to the Administrative Agent not later than 10:00 a.m., 10
Business Days prior to the date of the desired Credit Extension (or such other
time or date as may be agreed by the Administrative Agent in its sole
discretion), and the Administrative Agent shall promptly notify each Lender
thereof.  Each Lender shall notify the
Administrative Agent, not later than 10:00 a.m., ten Business Days after
receipt of such request whether it consents, in its sole discretion, to the
making of Eurocurrency Rate Loans.


 


(c)           Any failure by a
Lender to respond to such request within the time period specified in the
preceding sentence shall be deemed to be a refusal by such Lender to permit
Eurocurrency Rate Loans to be made in such requested currency.  If the Administrative Agent and all the
Lenders consent to making Eurocurrency Rate Loans in such requested currency,
the Administrative Agent shall so notify the Borrower and such currency shall
thereupon be deemed


 





















 


for all purposes
to be an Alternative Currency hereunder for purposes of any Committed
Borrowings of Eurocurrency Rate Loans. If the Administrative Agent shall fail
to obtain consent to any request for an additional currency under this Section
1.05, the Administrative Agent shall promptly so notify the Borrower.


 


1.06        Change of
Currency.


 


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


 


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


 


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


 


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


 


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


 


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


 





















 


ARTICLE II

THE CREDITS


 


2.01        Committed Loans. 
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed Loan”) to
the Borrower in Dollars or in one or more Alternative Currencies from time to
time, on any Business Day during the Availability Period, in an aggregate
amount not to exceed at any time outstanding the amount of such Lender’s
Commitment; provided, however, that after giving effect to any
Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, (ii) the aggregate Outstanding Amount of the Committed Loans of
any Lender, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Commitment.  Within the limits of each
Lender’s Commitment, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.01, prepay under Section
2.06, and reborrow under this Section 2.01.  Committed Loans may be Base Rate Loans or
Eurocurrency Rate Loans, as further provided herein.


 


2.02        Borrowings,
Conversions and Continuations of Committed Loans.


 


(a)           Each Committed Borrowing, each
conversion of Committed Loans from one Type to the other, and each continuation
of Eurocurrency Rate Committed Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by
telephone.  Each such notice must be
received by the Administrative Agent not later than 10:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Committed Loans denominated in Dollars or of
any conversion of Eurocurrency Rate Committed Loans denominated in Dollars to
Base Rate Committed Loans, (ii) four Business Days (or five Business Days in
the case of a Special Notice Currency) prior to the requested date of any
Borrowing or continuation of Eurocurrency Rate Committed Loans denominated in
Alternative Currencies, and (iii) on the requested date of any Borrowing of
Base Rate Committed Loans; provided, however, that if the
Borrower wishes to request Eurocurrency Rate Committed Loans having an Interest
Period other than one, two, three or six months in duration as provided in the
definition of “Interest Period,” the applicable notice must be received by the
Administrative Agent not later than 10:00 a.m. (i) four Business Days prior to
the requested date of such Borrowing, conversion or continuation of
Eurocurrency Rate Committed Loans denominated in Dollars, or (ii) five Business
Days (or six Business Days in the case of a Special Notice Currency) prior to
the requested date of such Borrowing, conversion or continuation of
Eurocurrency Rate Committed Loans denominated in Alternative Currencies,
whereupon the Administrative Agent shall give prompt notice to the Lenders of
such request and determine whether the requested Interest Period is acceptable
to all of them.  Not later than 10:00
a.m., (i) three Business Days before the requested date of such Borrowing,
conversion or continuation of Eurocurrency Rate Committed Loans denominated in
Dollars, or (ii) four Business Days (or five Business Days in the case of a
Special Notice Currency) prior to the requested date of such Borrowing,
conversion or continuation of Eurocurrency Rate Committed Loans denominated in
Alternative Currencies, the Administrative Agent shall notify the Borrower
(which notice may be by telephone) whether or not the requested Interest Period
has been consented to by all the Lenders. 
Each telephonic notice by the Borrower pursuant to this Section
2.02(a) must be confirmed promptly by delivery to the Administrative Agent
of a written


 





















 


Committed Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower.  Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is
requesting a Committed Borrowing, a conversion of Committed Loans from one Type
to the other, or a continuation of Eurocurrency Rate Committed Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Committed Loans
to be borrowed, converted or continued; provided that the principal
amount of Committed Loans to be borrowed, converted or continued shall be in a
minimum aggregate principal amount of $10,000,000 or the Dollar Equivalent
thereof, or a whole multiple of $1,000,000 or its Dollar Equivalent in excess
thereof, (iv) the Type of Committed Loans to be borrowed or to which existing
Committed Loans are to be converted, (v) if applicable, the duration of the
Interest Period with respect thereto, and (vi) the currency of the Committed
Loans to be borrowed.  If the Borrower
fails to specify a currency in a Committed Loan Notice requesting a Borrowing,
then the Committed Loans so requested shall be made in Dollars.  If the Borrower fails to specify a Type of
Committed Loan in a Committed Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable Committed
Loans shall be made as, or converted to, Base Rate Loans; provided, however,
that in the case of a failure to timely request a continuation of Committed
Loans denominated in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest Period of
one month.  Any such automatic conversion
to Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurocurrency Rate Committed
Loans.  If the Borrower requests a Borrowing
of, conversion to, or continuation of Eurocurrency Rate Committed Loans in any
such Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.  No Committed Loan may be converted into or
continued as a Committed Loan denominated in a different currency, but instead
must be prepaid in the original currency of such Committed Loan and reborrowed
in the other currency.


 


(b)           Following receipt of
a Committed Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount (and currency) of its Applicable Percentage of the
applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans or
continuation of Committed Loans denominated in a currency other than Dollars,
in each case as described in the preceding subsection.  In the case of a Committed Borrowing, each
Lender shall make the amount of its Committed Loan available to the
Administrative Agent in Same Day Funds at the Administrative Agent’s Office for
the applicable currency not later than 12:00 noon, in the case of any Committed
Loan denominated in Dollars, and not later than the Applicable Time specified
by the Administrative Agent in the case of any Committed Loan in an Alternative
Currency, in each case on the Business Day specified in the applicable
Committed Loan Notice.  Upon satisfaction
of the applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date
the Committed Loan Notice with respect to such Borrowing denominated in Dollars


 





















 


is given by the
Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing, first, shall be applied to the payment in full of any such
L/C Borrowings, and second, shall be made available to the Borrower as
provided above.


 


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


 


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


 


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


 


2.03        Bid Loans.


 


(a)           General.  Subject to the terms and conditions set forth
herein, each Lender agrees that the Borrower may from time to time request the
Lenders to submit offers to make loans in Dollars (each such loan, a “Bid
Loan”) to the Borrower prior to the Maturity Date pursuant to this Section
2.03; provided, however, that after giving effect to any Bid
Borrowing the Total Outstandings shall not exceed the Aggregate
Commitments.  There shall not be more
than ten different Interest
Periods in effect with respect to Bid Loans at any time.


 


(b)           Requesting
Competitive Bids.  The Borrower may
request the submission of Competitive Bids by delivering a Bid Request to the
Administrative Agent not later than 11:00 a.m. (i) one Business Day prior to
the requested date of any Bid Borrowing that is to consist of Absolute Rate
Loans, or (ii) four Business Days prior to the requested date of any Bid
Borrowing that is to consist of Eurocurrency Margin Bid Loans.  Each Bid Request shall specify (i) the
requested date of the Bid Borrowing (which shall be a Business Day), (ii) the
aggregate principal amount of Bid Loans requested (which must be $5,000,000 or
a whole multiple of $1,000,000 in excess thereof), (iii) the Type of Bid Loans
requested, and (iv) the duration of the Interest Period with respect thereto
(which for Eurocurrency Rate Loans shall be for maturities of one, two, three
or six months, and for Base Rate Loans shall be a period of 14 to 180 days),
and shall be signed by a Responsible Officer of the Borrower.  No Bid Request shall contain a request for
(i) more than one Type of Bid Loan or (ii) Bid Loans having more than three
different Interest


 





















 


Periods.  Unless the Administrative Agent otherwise
agrees in its sole and absolute discretion, the Borrower may not submit a Bid
Request if it has submitted another Bid Request within the prior five Business
Days.


 


(c)           Submitting
Competitive Bids.


 


(i)            The Administrative Agent shall
promptly notify each Lender of each Bid Request received by it from the
Borrower and the contents of such Bid Request.


 


(ii)           Each Lender may (but shall have no
obligation to) submit a Competitive Bid containing an offer to make one or more
Bid Loans in response to such Bid Request. 
Such Competitive Bid must be delivered to the Administrative Agent not
later than 9:30 a.m. (A) on the requested date of any Bid Borrowing that is to
consist of Absolute Rate Loans, and (B) three Business Days prior to the
requested date of any Bid Borrowing that is to consist of Eurocurrency Margin
Bid Loans; provided, however, that any Competitive Bid submitted
by Bank of America in its capacity as a Lender in response to any Bid Request
must be submitted to the Administrative Agent not later than 9:15 a.m. on the
date on which Competitive Bids are required to be delivered by the other
Lenders in response to such Bid Request. 
Each Competitive Bid shall specify (A) the proposed date of the Bid
Borrowing; (B) the principal amount of each Bid Loan for which such Competitive
Bid is being made, which principal amount (x) may be equal to, greater than or
less than the Commitment of the bidding Lender, (y) must be $5,000,000 or a
whole multiple of $1,000,000 in excess thereof, and (z) may not exceed the
principal amount of Bid Loans for which Competitive Bids were requested; (C) if
the proposed Bid Borrowing is to consist of Absolute Rate Bid Loans, the
Absolute Rate offered for each such Bid Loan and the Interest Period applicable
thereto; (D) if the proposed Bid Borrowing is to consist of Eurocurrency Margin
Bid Loans, the Eurocurrency Bid Margin with respect to each such Eurocurrency
Margin Bid Loan and the Interest Period applicable thereto; and (E) the
identity of the bidding Lender.


 


(iii)          Any Competitive Bid shall be
disregarded if it (A) is received after the applicable time specified in
subsection (ii) above, (B) is not substantially in the form of a
Competitive Bid as specified herein, (C) contains qualifying, conditional or
similar language, (D) proposes terms other than or in addition to those set
forth in the applicable Bid Request, or (E) is otherwise not responsive to such
Bid Request.  Any Lender may correct a
Competitive Bid containing a manifest error by submitting a corrected
Competitive Bid (identified as such) not later than the applicable time
required for submission of Competitive Bids. 
Any such submission of a corrected Competitive Bid shall constitute a
revocation of the Competitive Bid that contained the manifest error.  The Administrative Agent may, but shall not
be required to, notify any Lender of any manifest error it detects in such
Lender’s Competitive Bid.


 


(iv)          Subject only to the provisions of Sections
3.02, 3.03 and 4.02 and subsection (iii) above, each
Competitive Bid shall be irrevocable.


 


(d)           Notice to
Borrower of Competitive Bids.  Not later
than 10:00 a.m. (i) on the requested date of any Bid Borrowing that is to
consist of Absolute Rate Loans, or (ii) three


 





















 


Business Days
prior to the requested date of any Bid Borrowing that is to consist of
Eurocurrency Margin Bid Loans, the Administrative Agent shall notify the
Borrower of the identity of each Lender that has submitted a Competitive Bid
that complies with Section 2.03(c) and of the terms of the offers
contained in each such Competitive Bid.


 


(e)           Acceptance of
Competitive Bids.  Not later than
10:30 a.m. (i) on the requested date of any Bid Borrowing that is to consist of
Absolute Rate Loans, and (ii) three Business Days prior to the requested date
of any Bid Borrowing that is to consist of Eurocurrency Margin Bid Loans, the
Borrower shall notify the Administrative Agent of its acceptance or rejection
of the offers notified to it pursuant to Section 2.03(d).  The Borrower shall be under no obligation to
accept any Competitive Bid and may choose to reject all Competitive Bids.  In the case of acceptance, such notice shall
specify the aggregate principal amount of Competitive Bids for each Interest
Period that is accepted.  The Borrower
may accept any Competitive Bid in whole or in part; provided that:


 


(i)            the aggregate principal amount of
each Bid Borrowing may not exceed the applicable amount set forth in the
related Bid Request;


 


(ii)           the principal amount of each Bid Loan
must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof;


 


(iii)          the acceptance of offers may be made only
on the basis of ascending Absolute Rates or Eurocurrency Bid Margins within
each Interest Period; and


 


(iv)          the Borrower may not accept any offer
that is described in Section 2.03(c)(iii) or that otherwise fails to
comply with the requirements hereof.


 


(f)            Procedure for
Identical Bids.  If two or more
Lenders have submitted Competitive Bids at the same Absolute Rate or
Eurocurrency Bid Margin, as the case may be, for the same Interest Period, and
the result of accepting all of such Competitive Bids in whole (together with
any other Competitive Bids at lower Absolute Rates or Eurocurrency Bid Margins,
as the case may be, accepted for such Interest Period in conformity with the
requirements of Section 2.03(e)(iii)) would be to cause the aggregate
outstanding principal amount of the applicable Bid Borrowing to exceed the
amount specified therefor in the related Bid Request, then, unless otherwise
agreed by the Borrower, the Administrative Agent and such Lenders, such
Competitive Bids shall be accepted as nearly as possible in proportion to the
amount offered by each such Lender in respect of such Interest Period, with
such accepted amounts being rounded to the nearest whole multiple of
$1,000,000.


 


(g)           Notice to Lenders
of Acceptance or Rejection of Bids. 
The Administrative Agent shall promptly notify each Lender having
submitted a Competitive Bid whether or not its offer has been accepted and, if
its offer has been accepted, of the amount of the Bid Loan or Bid Loans to be
made by it on the date of the applicable Bid Borrowing.  Any Competitive Bid or portion thereof that
is not accepted by the Borrower by the applicable time specified in Section
2.03(e) shall be deemed rejected.


 


(h)           Notice of
Eurocurrency Base Rate.  If any Bid
Borrowing is to consist of Eurocurrency Margin Loans, the Administrative Agent
shall determine the Eurocurrency Base


 





















 


Rate for the
relevant Interest Period, and promptly after making such determination, shall
notify the Borrower and the Lenders that will be participating in such Bid
Borrowing of such Eurocurrency Base Rate.


 


(i)            Funding of Bid
Loans.  Each Lender that has received
notice pursuant to Section 2.03(g) that all or a portion of its
Competitive Bid has been accepted by the Borrower shall make the amount of its
Bid Loan(s) available to the Administrative Agent in immediately available
funds at the Administrative Agent’s Office not later than 12:00 noon on the
date of the requested Bid Borrowing. 
Upon satisfaction of the applicable conditions set forth in Section
4.02, the Administrative Agent shall make all funds so received available
to the Borrower in like funds as received by the Administrative Agent.


 


(j)            Notice of Range
of Bids.  After each Competitive Bid
auction pursuant to this Section 2.03, the Administrative Agent shall
notify each Lender that submitted a Competitive Bid in such auction of the
ranges of bids submitted (without the bidder’s name) and accepted for each Bid
Loan and the aggregate amount of each Bid Borrowing.


 


2.04        Letters
of Credit.


 


(a)           The
Letter of Credit Commitment.


 


(i)            Subject to the terms and conditions
set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of
the Lenders set forth in this Section 2.04, (1) from time to time on any
Business Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit denominated in Dollars for the
account of the Borrower, and to amend or extend Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrower and any
drawings thereunder; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (x) the Total Outstandings
shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans, shall not exceed such Lender’s Commitment, and (z) the Outstanding
Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit.  Each request by the Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence.  Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Borrower
may, during the foregoing period, obtain Letters of Credit to replace Letters
of Credit that have expired or that have been drawn upon and reimbursed.


 


(ii)           The L/C Issuer shall not issue any
Letter of Credit, if:


 





















 


(A)          subject to Section 2.04(b)(iii),
the expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or last extension, unless the Required
Lenders have approved such expiry date; or


 


(B)           the expiry date of such requested
Letter of Credit would occur after the Letter of Credit Expiration Date, unless
all the Lenders have approved such expiry date.


 


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


 


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


 


(B)           the issuance of such Letter of Credit
would violate one or more of the internal policies of the L/C Issuer regarding
letters of credit generally;


 


(C)           except as otherwise agreed by the
Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial
stated amount less than $1,000,000;


 


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


 


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


 


(F)           a default of any Lender’s obligations
to fund under Section 2.04(c) exists or any Lender is at such time a
Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Borrower or such Lender to eliminate the L/C Issuer’s
risk with respect to such Lender.


 


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


 


(v)           The L/C Issuer shall be under no
obligation to amend any Letter of Credit if (A) the L/C Issuer would have no
obligation at such time to issue such Letter of Credit


 





















 


in its amended
form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.


 


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


 


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


 


(i)            Each Letter of Credit shall be
issued or amended, as the case may be, upon the request of the Borrower
delivered to the L/C Issuer (with a copy to the Administrative Agent) in the
form of a Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of the Borrower. 
Such Letter of Credit Application must be received by the L/C Issuer and
the Administrative Agent not later than 10:00 a.m. at least two Business Days
prior to the proposed issuance date or date of amendment as the case may be, or
such later date and time as the Administrative Agent and the L/C Issuer may
agree in a particular instance in their sole discretion, prior to the proposed
issue date or the date of amendment as the case may be.  In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify
in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary in
case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (G) such
other matters as the L/C Issuer may require. 
In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as the L/C Issuer
may require.  Additionally, the Borrower
shall furnish to the L/C Issuer and the Administrative Agent such other
documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.


 


(ii)           Promptly after receipt of any Letter
of Credit Application, the L/C Issuer will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received a
copy of such Letter of Credit Application from the Borrower and, if not, the
L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written
notice from any Lender, the Administrative Agent or the Borrower, at least one
Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more


 





















 


applicable conditions
contained in Article IV shall not then be satisfied, then, subject to
the terms and conditions hereof, the L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the Borrower or enter into the
applicable amendment, as the case may be, in each case in accordance with the
L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter
of Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk participation in
such Letter of Credit in an amount equal to the product of such Lender’s
Applicable Percentage times the amount of such Letter of Credit.


 


(iii)          If the Borrower so requests in any
applicable Letter of Credit Application, the L/C Issuer may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “Auto-Extension Letter of Credit”); provided
that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent
any such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the “Non-Extension Notice Date”)
in each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued.  Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such extension if (A)
the L/C Issuer has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of Section
2.04(a)(ii), 2.04(a)(iii) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is
five Business Days before the Non-Extension Notice Date (1) from the Administrative
Agent that the Required Lenders have elected not to permit such extension or
(2) from the Administrative Agent, any Lender or the Borrower that one or more
of the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing the L/C Issuer not to permit such
extension.


 


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


 


(c)           Drawings
and Reimbursements; Funding of Participations.


 


(i)            Upon receipt from the beneficiary of
any Letter of Credit of any notice of a drawing under such Letter of Credit,
the L/C Issuer shall notify the Borrower and the Administrative Agent
thereof.  Not later than 10:00 a.m.
on the date of any payment by the L/C Issuer under a Letter of Credit (each
such date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such
drawing.  If the Borrower fails to so
reimburse the L/C Issuer by such


 





















 


time, the Administrative
Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such
Lender’s Applicable Percentage thereof. 
In such event, the Borrower shall be deemed to have requested a
Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Base
Rate Loans, but subject to the amount of the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.04(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.


 


(ii)           Each Lender shall upon any notice
pursuant to Section 2.04(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer, at the Administrative
Agent’s Office in an amount equal to its Applicable Percentage of the
Unreimbursed Amount not later than 12:00 noon on the Business Day specified in
such notice by the Administrative Agent, whereupon, subject to the provisions
of Section 2.04(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Committed Loan to the Borrower in such
amount.  The Administrative Agent shall
remit the funds so received to the L/C Issuer.


 


(iii)          With respect to any Unreimbursed
Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans
because the conditions set forth in Section 4.02 cannot be satisfied or
for any other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is
not so refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section
2.04(c)(ii) shall be deemed payment in respect of its participation in such
L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.04.


 


(iv)          Until each Lender funds its Committed
Loan or L/C Advance pursuant to this Section 2.04(c) to reimburse the
L/C Issuer for any amount drawn under any Letter of Credit, interest in respect
of such Lender’s Applicable Percentage of such amount shall be solely for the
account of the L/C Issuer.


 


(v)           Each Lender’s obligation to make
Committed Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn
under Letters of Credit, as contemplated by this Section 2.04(c), shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c)
is subject to the conditions set forth in Section 4.02 (other than
delivery


 





















 


by the Borrower of a
Committed Loan Notice).  No such making
of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by the
L/C Issuer under any Letter of Credit, together with interest as provided
herein.


 


(vi)          If any Lender fails to make available
to the Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.04(c) by the time specified in Section 2.04(c)(ii), the
L/C Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect.  A certificate of the L/C Issuer submitted to
any Lender (through the Administrative Agent) with respect to any amounts owing
under this subsection (vi) shall be conclusive absent manifest error.


 


(d)           Repayment
of Participations.


 


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


 


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


 


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


 


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


 





















 


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


 


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


 


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


 


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


 


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


 


(f)            Role of L/C
Issuer.  Each Lender and the Borrower
agree that, in paying any drawing under a Letter of Credit, the L/C Issuer
shall not have any responsibility to obtain any document (other than any sight
draft, certificates and documents expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any such document
or the authority of the Person executing or delivering any such document.  None of the L/C Issuer, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable to any Lender for (i)
any action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any action
taken or omitted in the absence of gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document.  The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided, however, that this assumption is
not intended to, and shall not, preclude the Borrower’s pursuing such rights
and remedies as it may have against the beneficiary or transferee at law or
under any other agreement.  None of the
L/C Issuer, the Administrative Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of


 





















 


the L/C Issuer
shall be liable or responsible for any of the matters described in Section
2.04(e)(i) through (v); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross negligence
or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.


 


(g)           Cash Collateral.  Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations.  Sections 2.06 and 8.02(c) set
forth certain additional requirements to deliver Cash Collateral
hereunder.  For purposes of this Section
2.04, Section 2.06 and Section 8.02(c), “Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance satisfactory to the Administrative Agent
and the L/C Issuer (which documents are hereby consented to by the
Lenders).  Derivatives of such term have
corresponding meanings.  The Borrower
hereby grants to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.


 


(h)           Applicability of
ISP.  Unless otherwise expressly
agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued the
rules of the ISP shall apply to each Letter of Credit.


 


(i)            Letter of Credit
Fees.  The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Applicable Percentage a Letter of Credit fee (the “Letter of Credit Fee”)
for each Letter of Credit equal to the Applicable Rate times the daily
amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.09.  Letter of Credit Fees shall be (i) computed
on a quarterly basis in arrears and (ii) due and payable on the first Business
Day after the end of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Letter of Credit, on
the Letter of Credit Expiration Date and thereafter on demand.  If there is any change in the Applicable Rate
during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in


 





















 


effect.  Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.


 


(j)            Fronting Fee and
Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to the L/C
Issuer for its own account a fronting fee with respect to each Letter of
Credit, at the rate per annum specified in the Bank of America Fee Letter,
computed on the daily amount available to be drawn under such Letter of Credit
on a quarterly basis in arrears, and due and payable on the first Business Day
after the end of each March, June, September and December, commencing with the
first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.09.  In addition, the Borrower shall pay directly
to the L/C Issuer for its own account, the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in
effect.  Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.


 


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


 


2.05        Swing
Line Loans.


 


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


 





















 


(b)           Borrowing
Procedures.  Each Swing Line
Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing
Line Lender and the Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 12:00 noon on the
requested borrowing date, and shall specify (i) the amount to be borrowed,
which shall be in a minimum amount of $1,000,000, and (ii) the requested
borrowing date, which shall be a Business Day. 
Each such telephonic notice must be confirmed promptly by delivery to
the Swing Line Lender and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower.  Promptly after receipt by the
Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Swing Line Loan Notice
and, if not, the Swing Line Lender will notify the Administrative Agent (by
telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior to 1:00 p.m. on the date of the proposed Swing
Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line
Loan as a result of the limitations set forth in the proviso to the first
sentence of Section 2.05(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject
to the terms and conditions hereof, the Swing Line Lender will, not later than
2:00 p.m. on the borrowing date specified in such Swing Line Loan Notice,
make the amount of its Swing Line Loan available to the Borrower at its office
by crediting the account of the Borrower on the books of the Swing Line Lender
in Same Day Funds.


 


(c)           Refinancing
of Swing Line Loans.


 


(i)            The Swing Line Lender at any time in
its sole and absolute discretion may request, on behalf of the Borrower (which
hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Committed Loan in an amount equal to
such Lender’s Applicable Percentage of the amount of Swing Line Loans then
outstanding.  Such request shall be made
in writing (which written request shall be deemed to be a Committed Loan Notice
for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the
Borrower with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its
Applicable Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in Same Day Funds for the account of the
Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated
payments not later than 12:00 noon on the day specified in such Committed Loan
Notice, whereupon, subject to Section 2.05(c)(ii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Committed Loan
to the Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.


 


(ii)           If for any reason any Swing Line Loan
cannot be refinanced by such a Committed Borrowing in accordance with Section
2.05(c)(i), the request for Base Rate


 





















 


Committed Loans submitted
by the Swing Line Lender as set forth herein shall be deemed to be a request by
the Swing Line Lender that each of the Lenders fund its risk participation in
the relevant Swing Line Loan and each Lender’s payment to the Administrative
Agent for the account of the Swing Line Lender pursuant to Section
2.05(c)(i) shall be deemed payment in respect of such participation.


 


(iii)          If any Lender fails to make available
to the Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.05(c) by the time specified in Section 2.05(c)(i), the
Swing Line Lender shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the Swing Line Lender at a rate per annum equal to
the applicable Overnight Rate from time to time in effect.  A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this subsection (iii) shall be conclusive absent
manifest error.


 


(iv)          Each Lender’s obligation to make
Committed Loans or to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.05(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make
Committed Loans pursuant to this Section 2.05(c) is subject to the
conditions set forth in Section 4.02. 
No such funding of risk participations shall relieve or otherwise impair
the obligation of the Borrower to repay Swing Line Loans, together with
interest as provided herein.


 


(d)           Repayment
of Participations.


 


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


 


(ii)           If any payment received by the Swing
Line Lender in respect of principal or interest on any Swing Line Loan is
required to be returned by the Swing Line Lender under any of the circumstances
described in Section 10.05 (including pursuant to any settlement entered
into by the Swing Line Lender in its discretion), each Lender shall pay to the
Swing Line Lender its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the applicable
Overnight Rate.  The Administrative Agent
will make such demand upon the request of the Swing Line


 





















 


Lender.  The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


 


(e)           Interest for
Account of Swing Line Lender.  The
Swing Line Lender shall be responsible for invoicing the Borrower for interest
on the Swing Line Loans.  Until each
Lender funds its Base Rate Committed Loan or risk participation pursuant to
this Section 2.05 to refinance such Lender’s Applicable Percentage of
any Swing Line Loan, interest in respect of such Applicable Percentage shall be
solely for the account of the Swing Line Lender.


 


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


 


2.06        Prepayments.


 


(a)           The Borrower may,
upon notice to the Administrative Agent, at any time or from time to time
voluntarily prepay Committed Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Administrative
Agent not later than 10:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurocurrency Rate Committed Loans denominated in Dollars, (B)
four Business Days (or five, in the case of prepayment of Loans denominated in
Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate
Committed Loans denominated in Alternative Currencies, and (C) on the date of
prepayment of Base Rate Committed Loans; (ii) any prepayment shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof or, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Committed Loans to be prepaid and,
if Eurocurrency Loans are to be prepaid, the Interest Period(s) of such
Loans.  The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.  Any prepayment of a Eurocurrency Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Committed Loans of the Lenders in accordance with their respective Applicable
Percentages.


 


(b)           No Bid Loan may be
prepaid without the prior consent of the applicable Bid Loan Lender.


 


(c)           The Borrower may,
upon notice to the Swing Line Lender (with a copy to the Administrative Agent),
at any time or from time to time, voluntarily prepay Swing Line Loans in whole
or in part without premium or penalty; provided that (i) such notice
must be received by the Swing Line Lender and the Administrative Agent not
later than 12:00 noon on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $1,000,000 or a whole
multiple of $1,000,000 in excess thereof. 
Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.


 





















 


(d)           If the
Administrative Agent notifies the Borrower at any time that the Total
Outstandings at such time exceed an amount equal to 105% of the Aggregate
Commitments then in effect, then, within two Business Days after receipt of
such notice, the Borrower shall prepay Loans and/or the Borrower shall Cash
Collateralize the L/C Obligations in an aggregate amount sufficient to reduce
such Outstanding Amount as of such date of payment to an amount not to exceed
100% of the Aggregate Commitments then in effect; provided, however, that,
subject to the provisions of Section 2.04(g)(ii), the Borrower shall not
be required to Cash Collateralize the L/C Obligations pursuant to this Section
2.06(d) unless after the prepayment in full of the Loans the Total
Outstandings exceed the Aggregate Commitments then in effect.  The Administrative Agent may, at any time and
from time to time after the initial deposit of such Cash Collateral, request
that additional Cash Collateral be provided in order to protect against the
results of further exchange rate fluctuations.


 


2.07        Termination or Reduction of Commitments.  The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time
permanently reduce the Aggregate Commitments; provided that (i) any such
notice shall be received by the Administrative Agent not later than 10:00 a.m.
three Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $5,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would
exceed the Aggregate Commitments, and (iv) if, after giving effect to any
reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the
Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such
Sublimit shall be automatically reduced by the amount of such excess.  The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate
Commitments.  The amount of any such
Aggregate Commitment reduction shall not be applied to the Letter of Credit
Sublimit unless otherwise specified by the Borrower.  Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Applicable
Percentage.  All fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.


 


2.08        Repayment
of Loans.


 


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


 


(b)           The Borrower shall
repay each Bid Loan on the last day of the Interest Period in respect thereof.


 


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


 


2.09        Interest.


 


(a)           Subject to the
provisions of subsection (b) below, (i) each Eurocurrency Rate Committed Loan
shall bear interest on the outstanding principal amount thereof for each
Interest


 





















 


Period at a rate
per annum equal to the Eurocurrency Rate for such Interest Period plus
the Applicable Rate plus (in the case of a Eurocurrency Rate Loan of any
Lender which is lent from a Lending Office in the United Kingdom or a
Participating Member State) the Mandatory Cost; (ii) each Base Rate Committed
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate; (iii) each Bid Loan shall bear interest on the outstanding
principal amount thereof for the Interest Period therefor at a rate per annum
equal to the Eurocurrency Rate for such Interest Period plus (or minus) the
Eurocurrency Bid Margin, or at the Absolute Rate for such Interest Period, as
the case may be; and (iv) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate.


 


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


 


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


 


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


 


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


 


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


 


2.10        Fees.  In addition to
certain fees described in Sections 2.04(i) and (j):


 


(a)           Facility Fee.  The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage, a facility fee in Dollars equal to the Applicable Rate times
the actual daily amount of the Aggregate Commitments (or, if the Aggregate
Commitments have terminated, on the Outstanding Amount of all Committed Loans,
Swing Line Loans and L/C Obligations), regardless of usage.  The facility fee shall accrue at all times
during the Availability Period (and thereafter so long as any Committed Loans,
Swing Line Loans or L/C Obligations remain outstanding), including at any time
during which one or


 





















 


more of the conditions in Article IV is
not met, and shall be due and payable quarterly in arrears on the last Business
Day of each March, June, September and December, commencing with the first
such date to occur after the Closing Date, and on the Maturity Date (and, if
applicable, thereafter on demand).  The
facility fee and utilization fee referred to in Section 2.10(b)
shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.


 


(b)                                 Utilization
Fee.  The Borrower agrees to pay to
the Administrative Agent for the pro  rata account of each Lender,
in accordance with such Lender’s Loans, a utilization fee for each day from the
date hereof to and including the Maturity Date for each day that Total
Outstandings on the close of business (if a Business Day) of such day is equal
to or greater than 50% of the sum of the Aggregate Commitments.  The utilization fee shall accrue at all
times, including at any time during which one or more of the conditions in Article IV
is not met.  If applicable, such
utilization fee shall be equal to the Applicable Rate times Total
Outstandings on the close of business (if a Business Day), payable quarterly in
arrears on the last Business Day of March, June, September, and December, and
the Maturity Date.


 


(c)                                  Other
Fees.  The Borrower shall pay to Banc
of America Securities LLC and the Administrative Agent fees in the amounts and
at the times specified in the Fee Letter, which fees shall be for the
respective accounts of the Administrative Agent, Banc of America Securities LLC
and the Lenders as specified in the Fee Letter. 
Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.


 


2.11                        Computation of Interest and Fees.  All computations of interest for Base Rate
Loans when the Base Rate is determined by Bank of America’s “prime rate” shall
be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed.  All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year), or, in the case of
interest in respect of Committed Loans denominated in Alternative Currencies as
to which market practice differs from the foregoing, in accordance with such
market practice.  Interest shall accrue
on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it
is made shall, subject to Section 2.13(a), bear interest for one
day.  Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.


 


2.12                        Evidence of Debt.


 


(a)                                  The
Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent
in the ordinary course of business.  The
accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrower and the interest and payments
thereon.  Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the
Obligations.  In the event of any
conflict


 





















 


between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error. 
Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in
addition to such accounts or records. 
Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.


 


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


 


2.13                        Payments Generally; Administrative Agent’s
Clawback.


 


(a)                                  General.  All payments to be made by the Borrower shall
be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.  Except as
otherwise expressly provided herein and except with respect to principal of and
interest on Loans denominated in an Alternative Currency, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in Dollars and in Same Day Funds not later than
1:00 p.m. on the date specified herein.  Except
as otherwise expressly provided herein, all payments by the Borrower hereunder
with respect to principal and interest on Loans denominated in an Alternative
Currency shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in such Alternative Currency and in Same Day
Funds not later than the Applicable Time specified by the Administrative Agent
on the dates specified herein. Without limiting the generality of the
foregoing, the Administrative Agent may require that any payments due under
this Agreement be made in the United States. 
If, for any reason, the Borrower is prohibited by any Law from making
any required payment hereunder in an Alternative Currency, the Borrower shall
make such payment in Dollars in the Dollar Equivalent of the Alternative
Currency payment amount.  The
Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative
Agent (i) after 1:00 p.m., in the case of payments in Dollars, or
(ii) after the Applicable Time specified by the Administrative Agent in
the case of payments in an Alternative Currency, shall in each case be deemed
received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue.  If any payment
to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.


 





















 


(b)                                 (i)
Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any Committed
Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Committed Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in
accordance with Section 2.02 and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact
made its share of the applicable Committed Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount in Same Day Funds with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to
be made by such Lender, the Overnight Rate and (B) in the case of a payment to
be made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay
such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the
applicable Committed Borrowing to the Administrative Agent, then the amount so
paid shall constitute such Lender’s Committed Loan included in such Committed
Borrowing.  Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent.


 


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


 


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


 


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


 





















 


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


 


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


 


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


 


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


 


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


 


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


 





















 


2.15                        Increase
in Commitments.


 


(a)                                  Request
for Increase.  Provided there exists
no Default, upon notice to the Administrative Agent (which shall promptly
notify the Lenders), the Borrower may from time to time, on up to two
occasions, request an increase in the Aggregate Commitments by an amount (for
all such requests) not exceeding $100,000,000; provided that the
Aggregate Commitments may not exceed $500,000,000; and provided  further
that any such request for an increase shall be in a minimum amount of
$25,000,000.  At the time of sending such
notice, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders).


 


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


 


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


 


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


 


(e)                                  Conditions
to Effectiveness of Increase.  As a
condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate dated as of the Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of the
Borrower (i) certifying and attaching the resolutions adopted by the Borrower
approving or consenting to such increase, and (ii) certifying that, before and
after giving effect to such increase, (A) the representations and warranties
contained in Article V and the other Loan Documents are true and
correct on and as of the Increase Effective Date, except to the extent that
such representations and warranties specifically refer to an earlier date, in
which case they are true and correct as of such earlier date, and except that
for purposes of this Section 2.15, the representations and
warranties contained in Section 5.05 shall be deemed to refer to
the most recent statements furnished pursuant to Sections 6.01(a)
and 6.01(b), and (B) no Default exists.  The Borrower shall prepay any Committed Loans
outstanding on the Increase Effective Date (and pay any additional amounts
required pursuant to Section 3.05) to the extent necessary to keep
the outstanding Committed Loans ratable with any revised Applicable Percentages
arising from any nonratable increase in the Commitments under this Section.


 





















 


(f)                                    Conflicting
Provisions.  This Section shall
supersede any provisions in Sections 2.14 or 10.01 to the
contrary.


 


ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01                        Taxes.


 


(a)                                  Payments
Free of Taxes.  Any and all payments
by or on account of any obligation of the Borrower hereunder or under any other
Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if
the Borrower shall be required by applicable law to deduct any Indemnified
Taxes (including any Other Taxes) from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.


 


(b)                                 Payment
of Other Taxes by the Borrower. 
Without limiting the provisions of subsection (a) above, the
Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c)                                  Indemnification
by the Borrower.  The Borrower shall
indemnify the Administrative Agent, each Lender and the L/C Issuer, within 10
days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority.  A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.


 


(d)                                 Evidence
of Payments.  As soon as practicable
after any payment of Indemnified Taxes or Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.


 


(e)                                  Status
of Lenders.  Any Foreign Lender that
is entitled to an exemption from or reduction of withholding tax under the law
of the jurisdiction in which the Borrower is resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with
a copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested


 





















 


by the Borrower or the Administrative Agent, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate
of withholding.  In addition, any Lender,
if requested by the Borrower or the Administrative Agent, shall deliver such
other documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.


 


Without limiting the
generality of the foregoing, in the event that the Borrower is resident for tax
purposes in the United States, any Foreign Lender shall deliver to the Borrower
and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the request
of the Borrower or the Administrative Agent, but only if such Foreign Lender is
legally entitled to do so), whichever of the following is applicable:


 


(i)                                     duly
completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party,


 


(ii)                                  duly
completed copies of Internal Revenue Service Form W-8ECI,


 


(iii)                               in the case of a Foreign
Lender claiming the benefits of the exemption for portfolio interest under section 881(c)
of the Code, (x) a certificate to the effect that such Foreign Lender is not
(A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a
“10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B)
of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C)
of the Code and (y) duly completed copies of 
Internal Revenue Service Form W-8BEN, or


 


(iv)                              any
other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by applicable law to
permit the Borrower to determine the withholding or deduction required to be
made.


 


Without limiting the
obligations of the Lenders set forth above regarding delivery of certain forms
and documents to establish each Lender’s status for U.S. withholding tax
purposes, each Lender agrees promptly to deliver to the Administrative Agent or
the Borrower, as the Administrative Agent or the Borrower shall reasonably
request, on or prior to the Closing Date, and in a timely fashion thereafter,
such other documents and forms required by any relevant taxing authorities
under the Laws of any other jurisdiction, duly executed and completed by such
Lender, as are required under such Laws to confirm such Lender’s entitlement to
any available exemption from, or reduction of, applicable withholding taxes in
respect of all payments to be made to such Lender outside of the U.S. by the
Borrower pursuant to this Agreement or otherwise to establish such Lender’s
status for withholding tax purposes in such other jurisdiction.  Each Lender shall promptly (i) notify the
Administrative Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take such
steps as shall not be materially disadvantageous to it, in the reasonable


 





















 


judgment of such
Lender, and as may be reasonably necessary (including the re-designation of its
Lending Office) to avoid any requirement of applicable Laws of any such
jurisdiction that the Borrower make any deduction or withholding for taxes from
amounts payable to such Lender. 
Additionally, the Borrower shall promptly deliver to the Administrative
Agent or any Lender, as the Administrative Agent or such Lender shall
reasonably request, on or prior to the Closing Date, and in a timely fashion
thereafter, such documents and forms required by any relevant taxing
authorities under the Laws of any jurisdiction, duly executed and completed by
the Borrower, as are required to be furnished by such Lender or the
Administrative Agent under such Laws in connection with any payment by the
Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in
connection with the Loan Documents, with respect to such jurisdiction.


 


(f)                                    Treatment
of Certain Refunds.  If the
Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Indemnified Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to
which the Borrower has paid additional amounts pursuant to this Section, it
shall pay to the Borrower an amount equal to such refund (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section with respect to the Indemnified Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon
the request of the Administrative Agent, such Lender or the L/C Issuer, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the Administrative
Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority.  This subsection shall
not be construed to require the Administrative Agent, any Lender or the L/C
Issuer to make available its tax returns (or any other information relating to
its taxes that it deems confidential) to the Borrower or any other Person.


 


3.02                        Illegality.  If any Lender determines that any Law has
made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative
Currency), or to determine or charge interest rates based upon the Eurocurrency
Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits of, Dollars
or any Alternative Currency in the applicable interbank market, then, on notice
thereof by such Lender to the Borrower through the Administrative Agent, any
obligation of such Lender to make or continue Eurocurrency Rate Loans in the
affected currency or currencies or, in the case of Eurocurrency Rate Loans in
Dollars to convert Base Rate Committed Loans to Eurocurrency Rate Committed
Loans shall be suspended until such Lender notifies the Administrative Agent
and the Borrower that the circumstances giving rise to such determination no
longer exist.  Upon receipt of such
notice, the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable and such Loans are denominated
in Dollars, convert all Eurocurrency Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain


 





















 


such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans.  Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.


 


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


 


3.04                        Increased
Costs.


 


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


 


(i)                                     impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except
(A) any reserve requirement reflected in the Eurocurrency Rate and (B) the
requirements of the Bank of England and the Financial Services Authority or the
European Central Bank reflected in the Mandatory Cost, other than as set forth
below) or the L/C Issuer;


 


(ii)                                  subject
any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit
or any Eurocurrency Loan made by it, or change the basis of taxation of
payments to such Lender or the L/C Issuer in respect thereof (except for
Indemnified Taxes or Other Taxes covered by Section 3.01 and the
imposition of, or any change in the rate of, any Excluded Tax payable by such
Lender or the L/C Issuer); or


 


(iii)                               cause the Mandatory
Cost, as calculated hereunder, not to represent the cost to any Lender of
complying with the requirements of the Bank of England and/or the Financial
Services Authority or the European Central Bank in relation to its making,
funding or maintaining Eurocurrency Rate Loans; or


 


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


 





















 


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


 


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


 


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


 


(d)                                 Delay
in Requests.  Failure or delay on the
part of any Lender or the L/C Issuer to demand compensation pursuant to the
foregoing provisions of this Section shall not constitute a waiver of such
Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C
Issuer pursuant to the foregoing provisions of this Section for any
increased costs incurred or reductions suffered more than nine months prior to
the date that such Lender or the L/C Issuer, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or the L/C Issuer’s intention to claim compensation
therefor (except that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the nine-month period referred to above
shall be extended to include the period of retroactive effect thereof).


 


(e)                                  Additional Reserve Requirements.  The Borrower shall pay to each Lender, as long as such Lender shall be required to comply with any
reserve ratio requirement or analogous requirement (other than those comprised
of Mandatory Costs) of any central banking or financial regulatory authority
imposed in respect of the maintenance of the Commitments or the funding


 





















 


of the Eurocurrency Rate Loans, such additional costs
(expressed as a percentage per annum and rounded upwards, if necessary, to the
nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such
Lender (as determined by such Lender in good faith, which determination shall
be conclusive), which shall be
due and payable on each date on which interest is payable on such Loan, provided
the Borrower shall have received at least 15 days’ prior notice (with a copy to
the Administrative Agent) of such additional costs from such Lender.  If a Lender fails to give notice 15 days
prior to the relevant Interest Payment Date, such additional  costs shall be due and payable 15 days from
receipt of such notice.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3.06                        Mitigation
Obligations; Replacement of Lenders.


 


(a)                                  Designation
of a Different Lending Office.  If
any Lender requests compensation under Section 3.04, or the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender gives a notice pursuant to Section 3.02, then such
Lender shall use reasonable efforts to designate a different Lending Office for
funding or booking its Loans hereunder or to assign its


 





















 


rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02,
as applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender.  The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.


 


(b)                                 Replacement
of Lenders.  If any Lender requests
compensation under Section 3.04, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, the Borrower may
replace such Lender in accordance with Section 10.13.


 


3.07                        Survival.  All of the Borrower’s obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.


 


ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01                        Conditions of Initial Credit Extensions.  The obligation of each Lender to make its
initial Credit Extension hereunder, and to receive through the Administrative
Agent the initial Bid Request, is subject to the condition that the
Administrative Agent shall have received on or before the date of the initial
Credit Extension or Bid Request all of the following, in form and substance
satisfactory to the Administrative Agent and each Lender, and in sufficient
copies for each Lender:


 


(a)                                  Loan
Documents.  This Agreement and any
Notes executed by each party thereto shall have been delivered to
Administrative Agent;


 


(b)                                 Resolutions;
Incumbency.


 


(i)                                     Copies
of the resolutions of the board of directors of the Borrower authorizing the
transactions contemplated hereby, certified as of the Closing Date by the
Secretary or an Assistant Secretary of the Borrower; and


 


(ii)                                  A
certificate of the Secretary or Assistant Secretary of the Borrower certifying
the names and true signatures of the officers of the Borrower authorized to
execute, deliver and perform, as applicable, this Agreement, and all other Loan
Documents to be delivered by it hereunder;


 


(c)                                  Organization
Documents; Good Standing.  Each of
the following documents:


 


(i)                                     the
certificate of incorporation and the bylaws of the Borrower as in effect on the
Closing Date, certified by the Secretary or Assistant Secretary of the Borrower
as of the Closing Date; and


 





















 


(ii)                                  a
good standing certificate for the Borrower from the Secretary of State (or
similar, applicable Governmental Authority) of its state of incorporation and
the state of its principal place of business as of a recent date;


 


(d)                                 Legal
Opinions.  An opinion of Robert W.
Skelton, general counsel to the Borrower and addressed to the Administrative
Agent, and the Lenders, in form and substance satisfactory to the
Administrative Agent;


 


(e)                                  Payment
of Fees.  Evidence of payment by the
Borrower of all accrued and unpaid fees, to the extent then due and payable on
the Closing Date, including without limitation all accrued interest and fees
due and owing under the Existing Credit Agreements;


 


(f)                                    Certificate.  A certificate signed by a Responsible Officer
on behalf of the Borrower, dated as of the Closing Date, stating:


 


(i)                                     that
the representations and warranties contained in Article V are true and
correct on and as of such date, as though made on and as of such date;


 


(ii)                                  that
no Default or Event of Default exists or would result from any Borrowing being
made on the Closing Date;


 


(iii)                               that there has occurred
since November 30, 2003, no event or circumstance that has resulted or
could reasonably be expected to result in a Material Adverse Effect; and


 


(iv)                              the
current Debt Ratings.


 


(g)                                 Existing
Credit Agreements.  Evidence that
each of the Existing Credit Agreements has been terminated and any revolving
loans or other monetary obligations under the Existing Credit Agreements have
been paid in full or refinanced on the Closing Date with Credit Extensions
hereunder.


 


(h)                                 Other
Documents.  Such other approvals,
opinions, documents or materials as the Administrative Agent or any Lender may
reasonably request.


 


Without limiting the
generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


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


 





















 


(a)                                  The
representations and warranties of the Borrower contained in Article V
(other than Sections 5.06 and 5.07) or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct
as of such earlier date.


 


(b)                                 No
Default or Event of Default shall exist or shall result from such Credit
Extension.


 


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


 


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


 


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


 


ARTICLE V

REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and warrants to the
Administrative Agent and each Lender that:


 


5.01                        Organization, etc.  The Borrower and each of its Subsidiaries is
a corporation, partnership or limited liability company duly organized or
formed, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, is duly qualified to do
business and is in good standing in each jurisdiction where the nature of its
business requires such qualification, except where the failure to so qualify
will not have a Material Adverse Effect, and has full power and authority and
holds all requisite governmental licenses, permits and other approvals to enter
into and perform its Obligations under this Agreement, the Notes and each other
Loan Document to which it is a party and to own or hold under lease its
property and to conduct its business substantially as currently conducted by
it.


 


5.02                        Due Authorization, Non-Contravention etc.  The execution, delivery and performance by
the Borrower of this Agreement, the Notes and each other Loan Document executed
or to be executed by it, are within the Borrower’s corporate powers, have been
duly authorized by all necessary corporate action, and do not


 


(i)                                     contravene
the Borrower’s Organic Documents;


 





















 


(ii)                                  contravene
any contractual restriction, law or governmental regulation or court decree or
order binding on or affecting the Borrower and its Subsidiaries; or


 


(iii)                               result in, or require
the creation or imposition of, any Lien on any of the Borrower’s properties.


 


5.03                        Government Approval Regulation, etc.  No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body or other Person is required for the due execution, delivery or performance
by the Borrower of this Agreement, the Notes or any other Loan Document. The
Borrower may, however, be required to file this Agreement with the Securities
and Exchange Commission pursuant to applicable securities laws and regulations.
Neither the Borrower nor any of its Subsidiaries is an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, or a “holding
company”, or a “subsidiary company” of a “holding company”, or an “affiliate”
of a “holding company” or of a “subsidiary company” of a “holding company”,
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.


 


5.04                        Validity, etc.  This Agreement constitutes, and the Notes and
each other Loan Document executed by the Borrower will, on the due execution
and delivery thereof, constitute, the legal, valid and binding obligations of
the Borrower enforceable in accordance with their respective terms, subject to
the effect of bankruptcy insolvency, reorganization, moratorium or similar laws
affecting the enforceability of creditors’ rights generally and by general
principles of equity.


 


5.05                        Financial Information.  The consolidated balance sheets of the
Borrower and its Subsidiaries as at November 30, 2003, and the related
consolidated statements of earnings and cash flow of the Borrower and its
Subsidiaries, copies of which have been furnished to the Administrative Agent
and each Lender, have been prepared in accordance with GAAP consistently
applied, and present fairly in all material respects the consolidated financial
condition of the Borrower and its Subsidiaries as at the dates thereof and the
results of their operations for the periods then ended.


 


5.06                        No Material Adverse Change.  Since the date of the financial statements
described in Section 5.05 (except to the extent the information
disclosed therein is modified or superseded, as the case may be, by information
in the Borrower’s quarterly report on Form 10-Q for the quarters ended February 29,
2004, May 31, 2004, and August 31, 2004) there has been no material
adverse change in the financial condition, operations, assets, business or
properties of the Borrower and its Subsidiaries taken as a whole.


 


5.07                        Litigation, Labor Controversies, etc.  There is no pending or, to the knowledge of
the Borrower, threatened litigation, action, proceeding, or labor controversy
affecting the Borrower or any of its Subsidiaries, or any of their respective
properties, businesses, assets or revenues, which will result in a Material
Adverse Effect or which purports to affect the legality, validity or
enforceability of this Agreement, the Notes or any other Loan Document, except
as disclosed in Schedule 5.07 (“Litigation”).


 


5.08                        Subsidiaries.  The Borrower has no Subsidiaries, except
those Subsidiaries


 





















 


(i)                                     which
are identified in Schedule 5.08; or


 


(ii)                                  which
are dormant or otherwise not material to the business of the Borrower and its
Subsidiaries taken as a whole; or


 


(iii)                               which are hereafter
acquired or formed.


 


It is understood that Subsidiaries may merge, consolidate,
liquidate and sell assets as permitted pursuant to Section 7.04.


 


5.09                        Ownership of Properties.  The Borrower and each of its Subsidiaries has
good and marketable title to all of its tangible properties and assets, real
and personal, of any nature whatsoever, free and clear of all Liens, charges or
claims except as permitted pursuant to Section 7.03 or Liens,
charges or claims that will not have a Material Adverse Effect; and the
Borrower has duly registered in the U.S. all trademarks required for the
conduct of its business in the U.S., other than those as to which the lack of
protection, or failure to register, would not have a Material Adverse Effect.


 


5.10                        Taxes.  The Borrower and each of its Subsidiaries has
filed all federal and all other material income tax returns and reports
required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or
charges which are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on its books.


 


5.11                        Pension and Welfare Plans.  During the twelve-consecutive-month period
ending immediately prior to the date of the execution and delivery of this Agreement,
no Pension Plan has been terminated, or has been subject to the commencement of
any termination, that could reasonably be expected to have a Material Adverse
Effect, and no contribution failure has occurred with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.  No condition exists or event or transaction
has occurred with respect to any Pension Plan which might result in the
incurrence by the Borrower or any member of the Controlled Group of any liability,
fine or penalty which is likely to have a Material Adverse Effect.  Except for the post-retirement benefits
described in Schedule 5.11 (“ERISA Matters”), the Borrower has no
contingent liability with respect to post-retirement benefits provided by the Borrower
and its Subsidiaries under a Welfare Plan, other than (i) liability for
continuation coverage described in Part 6 of Subtitle B of Title I of ERISA and
(ii) liabilities which will not, individually or in the aggregate, have a
Material Adverse Effect.


 


5.12                        Environmental Warranties.  Except as set forth in Schedule 5.12
(“Environmental Matters”):


 


(a)                                  all
facilities and property (including underlying groundwater) owned or leased by
the Borrower or any of its Subsidiaries have been, and continue to be, owned or
leased by the Borrower and its Subsidiaries in compliance with all
Environmental Laws, except for such non-compliance which, singly or in the
aggregate, will not have a Material Adverse Effect;


 


(b)                                 there
have been no past unresolved, and there are no pending or threatened (in
writing)


 





















 


(i)                                     claims,
complaints, notices or requests for information received by the Borrower or any
of its Subsidiaries with respect to any alleged violation of any Environmental
Law, or


 


(ii)                                  complaints,
written notices or inquiries to the Borrower or any of its Subsidiaries
regarding potential liability under any Environmental Law,


 


which violation or
potential liability singly or in the aggregate will have a Material Adverse
Effect;


 


(c)                                  there
have been no Releases of Hazardous Materials at, on or under any property now
or to the Borrower’s knowledge previously owned or leased by the Borrower or
any of its Subsidiaries that, singly or in the aggregate, have, or will have a
Material Adverse Effect;


 


(d)                                 the
Borrower and its Subsidiaries have been issued and are in compliance with all
permits, certificates, approvals, licenses and other authorizations relating to
environmental matters and necessary for their businesses, except for such
permits, approvals, licenses and other authorizations which, if not obtained by
the Borrower, or as to which the Borrower is not in compliance (in each case
singly or in the aggregate), will not have a Material Adverse Effect;


 


(e)                                  no
property now or, to the Borrower’s knowledge, previously owned or leased by the
Borrower or any of its Subsidiaries is listed or with the knowledge of the
Borrower, proposed for listing (with respect to owned property only) on (i) the
CERCLIS or on any similar state list of sites requiring investigation or clean-up
or (ii) the National Priorities List pursuant to CERCLA; other than properties
as to which any such listing will not result in a Material Adverse Effect;


 


(f)                                    there
are no underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any property now or, to the Borrower’s knowledge,
previously owned or leased by the Borrower or any of its Subsidiaries that,
singly or in the aggregate, have, or will have, a Material Adverse Effect;


 


(g)                                 to
the Borrower’s knowledge, neither Borrower nor any Subsidiary of the Borrower
has directly transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or, with the knowledge of
the Borrower, proposed for listing, on the National Priorities List pursuant to
CERCLA, on the CERCLIS or on any similar state list or which is the subject of
federal, state or local enforcement actions or other investigations which will
lead to claims against the Borrower or such Subsidiary thereof for any remedial
work, damage to natural resources or personal injury, including claims under
CERCLA, which will have a Material Adverse Effect; and


 


(h)                                 there
are no polychlorinated biphenyls or friable asbestos present at any property
owned or leased by the Borrower or any Subsidiary of the Borrower that, singly
or in the aggregate, have, or will have, a Material Adverse Effect.


 


5.13                        Regulations U and X.  No proceeds of any Loans will be used for a
purpose which violates, or would be inconsistent with, FRB Regulation U or
X.  The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin


 





















 


stock, and not more than 25% of the consolidated
assets of the Borrower and its Subsidiaries consists of margin stock.  Terms for which meanings are provided in FRB
Regulation U or X or any regulations substituted therefor, as from time to time
in effect, are used in this Section with such meanings.


 


5.14                        Accuracy of Information.  Neither this Agreement nor any other
document, certificate or statement furnished to the Administrative Agent or any
Lender by or on behalf of the Borrower in connection herewith contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein and therein not misleading, in
light of the circumstances under which they were made.


 


5.15                        Compliance with Law; Absence of Default.  The Borrower and its Subsidiaries are in
compliance with all Applicable Laws the noncompliance with which would have a
Material Adverse Effect and with all of the material provisions of their
respective Organic Documents, and no event has occurred or has failed to occur
which has not been remedied or waived, the occurrence or non-occurrence of
which constitutes (i) a Default or Event of Default or (ii) a default by the
Borrower or one of its Subsidiaries under any other material indenture,
agreement or other instrument, or any judgment, decree, or order to which the
Borrower or such Subsidiary is a party or by which the Borrower or such
Subsidiary or any of their respective properties may be bound, which would have
a Material Adverse Effect.


 


ARTICLE VI

AFFIRMATIVE COVENANTS


 


So long as any Lender
shall have any Commitment hereunder, or any Loan or other Obligation shall
remain unpaid, unless the Required Lenders waive compliance in writing:


 


6.01                        Financial Information Reports, Notices, etc.  Subject to the last paragraph of Section 10.07,
the Borrower will furnish, or will cause to be furnished, to each Lender and
the Administrative Agent copies of the following financial statements, reports,
notices and information:


 


(a)                                  as
soon as available and in any event within 10 Business Days following the
required submission date of the Borrower’s Form 10-Q to the Securities Exchange
Commission at the end of each of the first three Fiscal Quarters of each Fiscal
Year of the Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and consolidated statements
of earnings and cash flow of the Borrower and its Subsidiaries for such Fiscal
Quarter and for the period commencing at the end of the previous Fiscal Year
and ending with the end of such Fiscal Quarter, certified by an Authorized
Officer of the Borrower, it being understood and agreed that the delivery of
the Borrower’s Form 10-Q (as filed with the Securities and Exchange Commission)
shall satisfy the requirements set forth in this clause);


 


(b)                                 as
soon as available and in any event within 10 Business Days following the
required submission date of the Borrower’s Form 10-K after the end of each
Fiscal Year of the Borrower, a copy of the annual audit report for such Fiscal
Year for the Borrower and its Subsidiaries, including therein a consolidated
balance sheet of the Borrower and its Subsidiaries


 





















 


as of the end of such Fiscal Year and consolidated
statements of earnings and cash flow of the Borrower and its Subsidiaries for
such Fiscal Year, in each case certified (without any Impermissible
Qualification) in a manner reasonably acceptable to the Administrative Agent
and the Required Lenders by Ernst & Young, LLP or other independent public
accountants reasonably acceptable to the Administrative Agent and the Required
Lenders (it being understood and agreed that the delivery of the Borrower’s
Form 10-K (as filed with the Securities and Exchange Commission) shall satisfy
such delivery requirement in this clause), together with a certificate from an
Authorized Officer of the Borrower containing a computation in reasonable
detail of, and showing compliance with, each of the financial ratios and
restrictions contained in Sections 7.02, 7.03, 7.04 and 7.05
and to the effect that, in making the examination necessary for the signing of
such certificate, he has not become aware of any Default or Event of Default
that has occurred and is continuing, or, if he has become aware of such Default
or Event of Default, describing such Default or Event of Default and the steps,
if any, being taken to cure it;


 


(c)                                  as
soon as available and in any event within 60 days after the end of each Fiscal
Quarter, a Compliance Certificate, executed by the Treasurer or an Authorized
Officer of the Borrower, showing (in reasonable detail and with appropriate
calculations and computations in all respects satisfactory to the
Administrative Agent) compliance with the financial covenants set forth in Sections
7.02, 7.03, 7.04 and 7.05 and representing as to the
absence of any Default;


 


(d)                                 as
soon as possible and in any event within three Business Days upon any officer
or director of the Borrower becoming aware of the occurrence of each Default or
Event of Default, a statement of the Treasurer or the chief financial
Authorized Officer of the Borrower setting forth details of such Default or
Event of Default and the action which the Borrower has taken and proposes to
take with respect thereto;


 


(e)                                  as
soon as possible and in any event within five Business Days after (x) the
occurrence of any adverse development with respect to any litigation, action,
proceeding, or labor controversy described in Section 5.07 which
will result in or is likely to result in a Material Adverse Effect or (y) the
commencement of any labor controversy, litigation, action, proceeding of the
type described in Section 5.07, notice thereof and copies of all
documentation relating thereto;


 


(f)                                    promptly
after the sending or filing thereof, copies of all reports which the Borrower
sends to any of its security holders, and all reports and registration
statements (other than on Form S-8 or any successor form) which the Borrower or
any of its Subsidiaries files with the Securities and Exchange Commission or
any national securities exchange;


 


(g)                                 immediately
upon becoming aware of the taking of any specific actions by the Borrower or
any other Person to terminate any Pension Plan (other than a termination
pursuant to Section 4041(b) of ERISA which can be completed without the
Borrower or any Controlled Group member having to provide more than $10,000,000
in addition to the normal contribution required for the plan year in which
termination occurs to make such Pension Plan sufficient), or the failure to
make a required contribution to any Pension Plan if such failure is sufficient
to give rise to a Lien under section 302(f) of ERISA, or the taking of any
action with respect to a Pension Plan which would likely result in the
requirement that the Borrower furnish a bond or other security to the PBGC or
such Pension Plan, or the occurrence of any event with respect to


 





















 


any Pension Plan which would likely result in the
incurrence by the Borrower of any liability, fine or penalty which will have a
Material Adverse Effect, or any increase in the contingent liability of the
Borrower with respect to any post-retirement Welfare Plan benefit if the increase
in such contingent liability will result in a Material Adverse Effect, notice
thereof and copies of all documentation relating thereto;


 


(h)                                 immediately
upon becoming aware of any change in Borrower’s Debt Rating, a statement
describing such change, whether such change was made by S&P, Moody’s or
both and the effective date of such change; and


 


(i)                                     such
other non-confidential information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender
through the Administrative Agent may from time to time reasonably request.


 


6.02                        Compliance with Laws, etc.  The Borrower will, and will cause each of its
Subsidiaries to, comply in all respects with all Applicable Laws, except where
such non-compliance would not have a Material Adverse Effect, such compliance
to include (without limitation):


 


(a)                                  preserve,
renew and maintain in full force and effect its legal existence and good
standing under the Applicable Laws of the jurisdiction of its organization and
each jurisdiction where its conduct of business requires qualification or good
standing (except any Subsidiary may merge, consolidate or liquidate as
permitted pursuant to Section 7.04), and


 


(b)                                 the
payment, before the same become delinquent, of all taxes, assessments and
governmental charges imposed upon it or upon its property except to the extent
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.


 


6.03                        Maintenance of Properties.  The Borrower will, and will cause each of its
Subsidiaries to, maintain, preserve, protect and keep its material properties
in good repair, working order and condition, and make necessary and proper
repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times unless the Borrower
determines in good faith that the continued maintenance of any of its
properties is no longer economically desirable. 


 


6.04                        Insurance.  The Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies insurance with respect to its properties material to the business of
the Borrower and its Subsidiaries against such casualties and contingencies and
of such types and in such amounts as is customary in the case of similar
businesses and will, upon request of the Administrative Agent, furnish to each
Lender at reasonable intervals a certificate of an Authorized Officer of the
Borrower setting forth the nature and extent of all insurance maintained by the
Borrower and its Subsidiaries in accordance with this Section, provided,
that the Borrower and its Subsidiaries may self-insure to the extent customary
for similarly situated corporations engaged in the same or similar business.


 


6.05                        Books and Records.  The Borrower will, and will cause each of its
Subsidiaries to, keep books and records which accurately reflect all of its
business affairs and material


 





















 


transactions and permit the Administrative Agent and
each Lender or any of their respective representatives, at reasonable times and
intervals, to visit all of its offices, to discuss its non-confidential
financial matters with its officers and independent public accountant and, upon
the reasonable request of the Administrative Agent or a Lender, to examine
(and, at the expense of the Lenders, photocopy extracts from) any of its
non-confidential books or other corporate records.


 


6.06                        Environmental Covenant.  The Borrower will, and will cause each of its
Subsidiaries to,


 


(a)                                  use
and operate all of its facilities and properties in compliance with all
Environmental Laws except for such non-compliance which, singly or in the
aggregate, will not have a Material Adverse Effect, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, except
where the failure to keep such permits, approvals, certificates, licenses or
other authorizations, or any non-compliance with the provisions thereof will
not have a Material Adverse Effect, and handle all Hazardous Materials in
compliance with all applicable Environmental Laws, except for any
non-compliance that will not have a Material Adverse Effect;


 


(b)                                 immediately
notify the Administrative Agent and provide copies upon receipt of all written
inquiries from any local, state or federal governmental agency, claims,
complaints or notices relating to the condition of its facilities and
properties or compliance with Environmental Laws which will have a Material
Adverse Effect, and shall promptly cure and have dismissed with prejudice or
contest in good faith any actions and proceedings relating to material
compliance with Environmental Laws the result of which, if not contested by the
Borrower, would have a Material Adverse Effect; and


 


(c)                                  provide
such non-confidential information and certifications which the Administrative
Agent may reasonably request from time to time to evidence compliance with this
Section 6.06.


 


6.07                        Use of
Proceeds.  The Borrower shall use the
proceeds of the Credit Extensions for working capital, capital expenditures,
share repurchases, refinancing of existing Indebtedness and other lawful
corporate purposes.


 


ARTICLE VII

NEGATIVE AND FINANCIAL COVENANTS


 


So long as any Lender
shall have any Commitment hereunder, or any Loan or other Obligation shall
remain unpaid, unless the Required Lenders waive compliance in writing:


 


7.01                        Transactions with Affiliates.  The Borrower will not, and will not permit
any of its Subsidiaries to, enter into, or cause, suffer or permit to exist any
material arrangement or contract with any of its other Affiliates (other than
other Subsidiaries) unless such arrangement or contract is fair and equitable
to the Borrower or such Subsidiary based upon the good faith judgment of the
Borrower’s Board of Directors, a committee thereof, or the Borrower’s
Management Committee.


 





















 


7.02                        Indebtedness.  The Borrower will not permit any of its
Subsidiaries to create, incur, assume or suffer to exist or otherwise become or
be liable in respect of any Indebtedness if, after giving effect to the
incurrence of any such Indebtedness, the aggregate outstanding amount of
Indebtedness of all Subsidiaries would exceed 25% of Consolidated Net Tangible
Assets.


 


7.03                        Liens.  The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its property, revenues or assets, whether now owned or hereafter
acquired, except:


 


(a)                                  Liens
securing payment of Indebtedness permitted under Section 7.02;


 


(b)                                 Liens
granted prior to the Closing Date which are identified in Schedule 7.03
(“Permitted Liens”);


 


(c)                                  any
Lien existing on the assets of any Person at the time it becomes a Subsidiary
(and not created, assumed or incurred by such Person in contemplation of such
event);


 


(d)                                 Liens
for taxes, assessments or other governmental charges or levies not at the time
delinquent or thereafter payable without penalty or being diligently contested
in good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;


 


(e)                                  Liens
of carriers, warehousemen, mechanics, materialmen and landlords incurred in the
ordinary course of business for sums not overdue or being diligently contested
in good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;


 


(f)                                    Liens
incurred in the ordinary course of business in connection with workmen’s
compensation, unemployment insurance or other forms of governmental insurance
or benefits, or to secure performance of tenders, statutory obligations, leases
and contracts (other than for borrowed money) entered into in the ordinary
course of business or to secure obligations on surety or appeal bonds;


 


(g)                                 judgment
Liens in existence less than 30 days after the entry thereof or with respect to
which execution has been stayed or the payment of which is covered in full
(subject to a customary deductible) by insurance maintained with responsible
insurance companies;


 


(h)                                 other
Liens incidental to the conduct of the Borrower’s or any of its Subsidiaries’
businesses (including without limitation, Liens on goods securing trade letters
of credit issued in respect of the importation of goods in the ordinary course
of business, or the ownership of any of the Borrower’s or any Subsidiary’s
property and assets which were not incurred in connection with the borrowing of
money or the obtaining of advances or credit and which do not in the aggregate
materially detract from the value of the Borrower’s or any of its Subsidiaries’
property or assets or materially impair the use thereof in the operation of
Borrower’s or any of its Subsidiaries’ businesses);


 





















 


(i)                                     Liens
in favor of the Borrower on assets of its Subsidiaries, and Liens in favor of
Subsidiaries of the Borrower on assets of the Borrower;


 


(j)                                     Liens
securing industrial development or pollution control bonds so long as such
Liens attach solely to the property acquired, constructed or improved with the
proceeds of such bonds; and


 


(k)                                  any
Lien not otherwise permitted by this Section 7.03 securing
Indebtedness, provided  that, immediately after giving effect
thereto (and to the incurrence of such Indebtedness secured thereby), the sum
of (without duplication and excluding any Indebtedness payable to the Borrower
or a Subsidiary) (i) the aggregate outstanding amount of Indebtedness of the
Borrower and its Subsidiaries secured by all Liens described in clauses (b),
(c) and (k) of this Section 7.03 (excluding any such
Liens described in clauses (d) through (j) of this Section 7.03)
and (ii) the Attributable Value of all Sale-Leaseback Transactions entered into
by the Borrower and its Subsidiaries in the aggregate does not exceed 15% of
Consolidated Net Tangible Assets.


 


7.04                        Mergers, Asset Dispositions, etc.  The Borrower will not, nor will it permit any
of its Subsidiaries to, liquidate, dissolve or enter into any consolidation,
merger, joint venture or any other combination or sell, lease, assign, transfer
or otherwise dispose of any assets or stock, whether now owned or hereafter
acquired, in a single transaction or in a series of transactions other than:


 


(a)                                  sales
of inventory in the ordinary course of business;


 


(b)                                 the
merger or consolidation of any Subsidiary with or into the Borrower or a
wholly-owned Subsidiary;


 


(c)                                  the
merger or consolidation of any other Person with or into the Borrower or any
Subsidiary, so long as, after giving effect thereto, (i) the Borrower or its
Subsidiary, as the case may be, is the surviving entity and (ii) no Default or
Event of Default would exist;


 


(d)                                 sales
of assets or stock by the Borrower or a Subsidiary to a wholly-owned Subsidiary
or the Borrower; and


 


(e)                                  (i)
sales of assets or stock to any other Person or (ii) liquidations of
Subsidiaries (other than a Principal Subsidiary) if, after giving effect
thereto, the aggregate book value of such assets or stock disposed of or liquidated
does not, during the most recent period of 12 consecutive months, exceed 20% of
Consolidated Net Tangible Assets as at the end of the Borrower’s immediately
preceding Fiscal Year; and


 


(f)                                    joint
ventures between Subsidiaries, between one or more Subsidiaries and the
Borrower, between the Borrower and other Persons and between Subsidiaries and
other Persons.


 


7.05                        EBIT to Interest Expense Ratio.  The Borrower will not permit the ratio of
EBIT to Interest Expense to be less than 2.5:1.00.  For purposes of calculating such ratio, the
items included therein shall be measured on a consolidated basis for the
Borrower and its Subsidiaries for the four full Fiscal Quarters immediately
preceding the date of calculation.


 





















 


ARTICLE VIII

EVENTS OF DEFAULT


 


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


 


(a)                                                                                  Non-Payment
of Obligations.  The Borrower shall
default in the payment when due of any principal of any Loan, or the Borrower
shall default (and such default shall continue unremedied for a period of three
Business Days) in the payment when due of any interest on any Loan, or the
Borrower shall default after notice (including, without limitation, notice
delivered by way of submission of a detailed invoice) (and such default shall
continue unremedied for a period of five days) in the payment when due of any
fee described in Section 2.10 or of any other Obligation,
including, without limitation, fees described in the Fee Letter.


 


(b)                                                                                 Breach
of Warranty.  Any representation or
warranty of the Borrower made or deemed to be made hereunder or in any other
Loan Document or any other writing or certificate furnished by or on behalf of
the Borrower to the Administrative Agent or any Lender for the purposes of or
in connection with this Agreement or any such other Loan Document (including
any certificates delivered pursuant to Article IV) is or shall be
incorrect when made in any material respect.


 


(c)                                                                                  Non-Performance
of Certain Covenants and Obligations. 
The Borrower shall default in the due performance and observance of any
of its obligations under clause (a) of Section 6.02 (with
respect to the maintenance and preservation of the Borrower’s corporate
existence) or under Section 6.06, or the Borrower shall default in
the due performance and observance of its obligations under Article VII,
and such default (if capable of being remedied within such period) shall not be
remedied within five Business Days after any officer of the Borrower obtains
actual knowledge thereof.


 


(d)                                                                                 Non-Performance
of Other Covenants and Obligations. 
The Borrower shall default in the due performance and observance of any
other agreement contained herein or in any other Loan Document, and such
default shall continue unremedied for a period of 30 days after notice thereof
shall have been given to the Borrower by the Administrative Agent or any
Lender.


 


(e)                                                                                  Default
on Other Indebtedness.  A default
shall occur in the payment when due (subject to any applicable grace period),
whether by acceleration or otherwise, of any Indebtedness (other than
Indebtedness described in Section 8.01(a)) of the Borrower or any
of its Subsidiaries having a principal amount, individually or in the
aggregate, in excess of $25,000,000, or a default shall occur in the
performance or observance of any obligation or condition with respect to such
Indebtedness (whether or not waived) if the effect of such default is to
accelerate the maturity of any such Indebtedness or such default (whether or
not waived) shall continue unremedied for any applicable period of time
sufficient to permit the holder or holders of such Indebtedness, or any trustee
or agent for such holders, to cause such Indebtedness to become due and payable
prior to its expressed maturity.


 


(f)                                                                                    Judgments. 
Any judgment or order for the payment of money in excess of $25,000,000
shall be rendered against the Borrower or any of its 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.


 


(g)                                                                                 Pension
Plans.  Any of the following events shall
occur with respect to any Pension Plan


 


(i)                                     the institution of any
steps by the Borrower, any member of its Controlled Group or any other Person
to terminate a Pension Plan if, as a result of such termination, the Borrower
or any such member could reasonably be required to make a contribution to such
Pension Plan, or could reasonably expect to incur a liability or obligation to
such Pension Plan, in excess of $10,000,000; or


 


(ii)                                  a contribution failure
occurs with respect to any Pension Plan sufficient to give rise to a Lien under
Section 302(f) of ERISA which is not cured within 20 days from the date
such contribution was due.


 


(h)                                                                                 Control
of the Borrower.  Any Change in Control
shall occur.


 


(i)                                                                                     Bankruptcy,
Insolvency, etc.  The Borrower or any
of its Subsidiaries that are Principal Subsidiaries shall


 


(i)                                     become insolvent or
generally fail to pay, or admit in writing its inability to pay, debts as they
become due;


 


(ii)                                  apply for, consent to, or
acquiesce in, the appointment of a trustee, receiver, sequestrator or other
custodian for the Borrower or any of such Subsidiaries or a substantial part of
any property of any thereof, or make a general assignment for the benefit of
creditors;


 


(iii)                               in the absence of such
application, consent or acquiescence, permit or suffer to exist the appointment
of a trustee, receiver, sequestrator or other custodian for the Borrower or any
of such Subsidiaries or for a substantial part of the property of any thereof,
and such trustee, receiver, sequestrator or other custodian shall not be
discharged within 60 days, provided that the Borrower and each such Subsidiary
hereby expressly authorizes the Administrative Agent and each Lender to appear
in any court conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;


 


(iv)                              permit or suffer to exist
the commencement of any bankruptcy, reorganization, debt arrangement or other
case or proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower or any of such
Subsidiaries, and, if any such case or proceeding is not


 





















 


commenced by the Borrower or such Subsidiary,
such case or proceeding shall be consented to or acquiesced in by the Borrower
or such Subsidiary or shall result in the entry of an order for relief or shall
remain for 60 days undismissed, provided that the Borrower and each such
Subsidiary hereby expressly authorizes the Administrative Agent and each Lender
to appear in any court conducting any such case or proceeding during such
60-day period to preserve, protect and defend their rights under the Loan
Documents; or


 


(v)                                 take any corporate action
authorizing, or in furtherance of, any of the foregoing.


 


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


 


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


 


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


 


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


 


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


 


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


 


8.03                        Application of Funds.  After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 8.02),
any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:


 


First,
to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of
counsel to the


 





















 


Administrative Agent and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;


 


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


 


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


 


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


 


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


 


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


 


Subject to Section 2.04(c),
amounts used to Cash Collateralize the aggregate undrawn amount of Letters of
Credit pursuant to clause Fifth above shall be applied to satisfy
drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the
order set forth above.


 


ARTICLE IX

THE AGENT


 


9.01                        Appointment and Authority.  Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto.  The provisions of this Article are
solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and the Borrower shall not
have rights as a third party beneficiary of any of such provisions.


 


9.02                        Rights as a Lender.  The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires,


 





















 


include the Person serving as the Administrative Agent
hereunder in its individual capacity. 
Such Person and its Affiliates may accept deposits from, lend money to,
act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.


 


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


 


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


 


(b)                                 shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and


 


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


 


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


 


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


 





















 


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


 


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


 


9.06                        Resignation of Administrative Agent.  The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
the Borrower, to appoint a successor, which shall be a bank with an office in
the United States, or an Affiliate of any such bank with an office in the
United States.  If no such successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section).  The fees


 





















 


payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. 
After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.


 


Any resignation by
Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (a) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and
Swing Line Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the successor
L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangement satisfactory to the retiring L/C Issuer to effectively assume the
obligations of the retiring L/C Issuer with respect to such Letters of Credit.


 


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


 


9.08                        No Other Duties, Etc.  Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers, Syndication Agents, or
Co-Documentation Agents listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent,
a Lender or the L/C Issuer hereunder.


 


ARTICLE X

MISCELLANEOUS


 


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


 





















 


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


 


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


 


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


 


(d)                                 reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to subsection (v) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be
necessary to amend the definition of “Default Rate” or to waive any obligation
of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;


 


(e)                                  change
Section 2.14 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent
of each Lender;


 


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


 


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


 


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


 





















 


10.02                 Notices;
Effectiveness; Electronic Communication.


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)                                  Change
of Address, Etc.  Each of the
Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender
may change its address, telecopier or telephone number


 





















 


for notices and other communications hereunder by
notice to the other parties hereto.  Each
other Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.


 


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


 


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


 


10.04                 Expenses; Indemnity; Damage Waiver.


 


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


 





















 


(b)                                 Indemnification
by the Borrower.  The Borrower shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender and
the L/C Issuer, and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses (including the fees, charges and disbursements of any counsel
for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from
all fees and time charges and disbursements for attorneys who may be employees
of any Indemnitee, incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrower arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations
hereunder or thereunder or the consummation of the transactions contemplated
hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the L/C Issuer
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Claims related in any
way to the Borrower or any of its Subsidiaries, (iv) any civil penalty or
fine assessed by OFAC as a result of the funding of Loans, the issuance of
Letters of Credit or the acceptance of payments due under the Credit Documents,
or (v) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by the Borrower, and
regardless of whether any Indemnitee is a party thereto, in all cases, whether
or not caused by or arising, in whole or in part, out of the comparative,
contributory or sole negligence of the Indemnitee; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrower against
an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Borrower has obtained a
final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction.


 


(c)                                  Reimbursement
by Lenders.  To the extent that the
Borrower for any reason fails to indefeasibly pay any amount required under subsection (a)
or (b) of this Section to be paid by it to the Administrative Agent
(or any sub-agent thereof), the L/C Issuer or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, as the case may be,
such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent) or the
L/C Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. 
The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.13(d).


 





















 


(d)                                 Waiver
of Consequential Damages, Etc.  To
the fullest extent permitted by applicable law, the Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of
liability, for indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. 
No Indemnitee referred to in subsection (b) above shall be liable
for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby.


 


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


 


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


 


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


 


10.06                 Successors and Assigns.


 


(a)                                  Successors
and Assigns Generally.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of subsection (d)
of 


 





















 


this Section, or (iii) by way of pledge or assignment
of a security interest subject to the restrictions of subsection (f) of
this Section, or (iv) to an SPC in accordance with the provisions of subsection (h)
of this Section (and any other attempted assignment or transfer by any
party hereto shall be null and void). 
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.


 


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


 


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


 


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


 


(iii)                               any assignment of a
Commitment must be approved by the Administrative Agent, the L/C Issuer and the
Swing Line Lender unless the Person that is the proposed assignee is itself a
Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and


 


(iv)                              the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee in the amount, if any, required as set forth in Schedule 10.06, and
the


 





















 


Eligible Assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.


 


Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment
and Assumption, the Eligible Assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 3.01, 3.04, 3.05, and 10.04
with respect to facts and circumstances occurring prior to the effective date
of such assignment.  Upon request, the
Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender.  Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.


 


(c)                                  Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by each of the Borrower
and the L/C Issuer at any reasonable time and from time to time upon reasonable
prior notice.  In addition, at any time
that a request for a consent for a material or substantive change to the Loan
Documents is pending, any Lender may request and receive from the Administrative
Agent a copy of the Register.


 


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


 


Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such


 





















 


agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 10.01 that
affects such Participant.  Subject to subsection (e)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this
Section.  To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.14 as though it were
a Lender.


 


(e)                                  Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Section 3.01
or 3.04 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. 
A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 3.01(e)
as though it were a Lender.


 


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


 


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


 


(h)                                 Special
Purpose Funding Vehicles. 
Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower (an “SPC”) the option to provide
all or any part of any Committed Loan that such Granting Lender would otherwise
be obligated to make pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to fund any Committed
Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails
to make all or any part of such Committed Loan, the Granting Lender shall be
obligated to make such Committed Loan pursuant to the terms hereof or, if it
fails to do so, to make such payment to the Administrative Agent as is required
under Section 2.13(b)(ii). 
Each party hereto hereby agrees that (i) neither the grant to any SPC
nor the exercise by any SPC of such option shall increase the costs or expenses
or otherwise increase or change the obligations of the Borrower under this
Agreement (including its obligations under Section 3.04), (ii) no
SPC shall be liable


 





















 


for any indemnity or similar payment obligation under
this Agreement for which a Lender would be liable, and (iii) the Granting
Lender shall for all purposes, including the approval of any amendment, waiver
or other modification of any provision of any Loan Document, remain the lender
of record hereunder.  The making of a
Committed Loan by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Committed Loan were made by such
Granting Lender.  In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior debt of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or
any State thereof.  Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but
without prior consent of the Borrower and the Administrative Agent and with
payment of a processing fee in the amount of $2,500, assign all or any portion
of its right to receive payment with respect to any Committed Loan to the Granting
Lender and (ii) disclose on a confidential basis any non-public information
relating to its funding of Committed Loans to any rating agency, commercial
paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.


 


(i)                                     Resignation
as L/C Issuer or Swing Line Lender after Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitment
and Loans pursuant to subsection (b) above, Bank of America may, (i) upon
30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or
(ii) upon 30 days’ notice to the Borrower, resign as Swing Line Lender.  In the event of any such resignation as L/C
Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Bank of America as L/C Issuer or Swing Line
Lender, as the case may be.  If Bank of
America resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as L/C Issuer
and all L/C Obligations with respect thereto (including the right to require
the Lenders to make Base Rate Committed Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.04(c)).  If Bank of America resigns as Swing Line Lender,
it shall retain all the rights of the Swing Line Lender provided for hereunder
with respect to Swing Line Loans made by it and outstanding as of the effective
date of such resignation, including the right to require the Lenders to make
Base Rate Committed Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.05(c). 
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender,
(a) such successor shall succeed to and become vested with all the rights,
powers, privileges, and duties of the retiring L/C Issuer or Swing Line Lender,
as the case may be, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to the
predecessor L/C Issuer to effectively assume the obligations of the predecessor
L/C Issuer with respect to the Letters of Credit.


 


10.07                 Treatment of Certain Information;
Confidentiality.  Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors


 





















 


and representatives (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, provided that, to the extent permitted by law and
otherwise practicable, the disclosing party uses its reasonable best efforts to
give to the Borrower advance notice of disclosure pursuant to this subsection,
(d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the consent
of the Borrower or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent, any Lender, the L/C Issuer or
any of their respective Affiliates on a nonconfidential basis from a source
other than the Borrower which source was not known to the recipient to be bound
to keep such information confidential.


 


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


 


The
Borrower acknowledges that (a) the Administrative Agent will make available to
the L/C Issuer and the Lenders materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (b) certain of the Lenders or the L/C Issuer
may be “public-side” Lenders (i.e., Lenders or L/C Issuers that do not wish to
receive material non-public information with respect to the Borrower and its
Subsidiaries and their respective securities) (each, a “Public Lender”).  The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” by or at the direction of the
Borrower, which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (x) by the Borrower marking, or
directing to be marked, the Borrower Materials “PUBLIC”, the Borrower shall be
deemed to have authorized the Administrative Agent, the L/C Issuer and the
Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and
proprietary) with respect to the Borrower and its Subsidiaries and their
respective securities for purposes of United States federal and state


 





















 


securities laws; (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated as “Public”; and (z) the Administrative
Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not marked as “Public”.


 


10.08                 Right of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the L/C Issuer or any 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 or any other Loan
Document to such Lender or the L/C Issuer, irrespective of whether or not such
Lender or the L/C Issuer shall have made any demand under this Agreement or any
other Loan Document and although such obligations of the Borrower may be
contingent or unmatured or are owed to a branch or office of such Lender or the
L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness.  The
rights of each Lender, the L/C Issuer and their respective Affiliates under
this Section are in addition to other rights and remedies (including other
rights of setoff) that such Lender, the L/C Issuer or their respective
Affiliates may have.  Each Lender and the
L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly
after any such setoff and application, provided that the failure to give
such notice shall not affect the validity of such setoff and application.


 


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


 


10.10                 Counterparts; Integration; Effectiveness.  This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof.  Except as
provided in Section 4.01, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken
together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of
a manually executed counterpart of this Agreement.


 





















 


10.11                 Survival of Representations and Warranties.  All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the
execution and delivery hereof and thereof. 
Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.


 


10.12                 Severability.  If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions.  The
invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.


 


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


 


(a)                                  the
Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 10.06(b);


 


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


 


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


 


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


 





















 


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


 


10.14                 Governing Law;
Jurisdiction; Etc.


 


(a)                                  GOVERNING
LAW.  THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.


 


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


 


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


 


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


 





















 


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


 


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


 


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


 


10.18                 Entire
Agreement.  This Agreement and the
other Loan Documents represent the final agreement among the parties and may
not be contradicted by evidence of prior,


 





















 


contemporaneous, or subsequent oral agreements of the
parties.  There are no unwritten oral
agreements among the parties.


 


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


 


	
   

  	
  MCCORMICK
  & COMPANY,

  INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul C. Beard

  
	
   

  	
  Title: Vice President –
  Finance & Treasurer

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,
  as Administrative

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William Sweeney

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., as a Lender, L/C

  Issuer and Swing Line Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William Sweeney

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  SUNTRUST BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duncan Owen

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark S. Supple

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK,
  NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lori Ross

  
	
   

  	
  Title:

  	
  Vice President

  
				



 





















 


	
   

  	
  BNP PARIBAS

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nanette Saudon

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Simone Vinocour

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Steven Cavaluzzo

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NOVA SCOTIA

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Todd Meller

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
  CITIBANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael R.R.
  Pindell

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
  CITIZENS BANK OF PENNSYLVANIA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter Heller

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  MANUFACTURERS & TRADERS
  TRUST CO.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Frank Lago

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  MIZUHO CORPORATE BANK, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Haviken

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  US BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael P. Dickman

  
	
   

  	
  Title:

  	
  Assistant Vice
  President