exv10w7






Exhibit 10.7




EXECUTION VERSION




 





CREDIT AGREEMENT



by and among



AIR PRODUCTS AND CHEMICALS, INC.,



The Lenders parties hereto from time to time,



and



JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,



Dated as of



March 31, 2010



 





J.P. MORGAN SECURITIES, INC.,

as Joint Lead Arranger and Sole Bookrunner,



THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

BNP PARIBAS SECURITIES CORP.,

DEUTSCHE BANK SECURITIES INC.,

HSBC SECURITIES (USA) INC.

and

RBS SECURITIES INC.,

as Joint Lead Arrangers and Syndication Agents



and



THE BANK OF NOVA SCOTIA,

INTESA SANPAOLO S.P.A.,

SOVEREIGN BANK (A SUBSIDIARY OF SANTANDER HOLDINGS USA, INC.),

SUMITOMO MITSUI BANKING CORPORATION

and

UBS SECURITIES LLC,

as Co-Arrangers



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	Article I DEFINITIONS; CONSTRUCTION
	 	 	1	 
	 
	 	 	 	 
	Section 1.01 Certain Definitions
	 	 	1	 
	Section 1.02 Construction
	 	 	16	 
	Section 1.03 Accounting Principles
	 	 	16	 
	Section 1.04 Classification of Loans and Borrowings
	 	 	16	 
	 
	 	 	 	 
	Article II THE LOANS
	 	 	16	 
	 
	 	 	 	 
	Section 2.01 Commitments
	 	 	16	 
	Section 2.02 Loans and Borrowings
	 	 	16	 
	Section 2.03 Requests for Borrowings
	 	 	17	 
	Section 2.04 Funding of Borrowings
	 	 	18	 
	Section 2.05 Interest Elections
	 	 	18	 
	Section 2.06 Termination and Reduction of Commitments
	 	 	19	 
	Section 2.07 Repayment of Loans; Evidence of Debt
	 	 	20	 
	Section 2.08 Optional Prepayments
	 	 	20	 
	Section 2.09 Mandatory Prepayments
	 	 	20	 
	Section 2.10 Fees
	 	 	22	 
	Section 2.11 Interest
	 	 	22	 
	Section 2.12 Alternate Rate of Interest
	 	 	23	 
	Section 2.13 Increased Costs
	 	 	23	 
	Section 2.14 Break Funding Payments
	 	 	24	 
	Section 2.15 Taxes
	 	 	25	 
	Section 2.16 Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	27	 
	Section 2.17 Mitigation Obligations; Replacement of Lenders
	 	 	29	 
	Section 2.18 Defaulting Lenders
	 	 	29	 
	 
	 	 	 	 
	Article III REPRESENTATIONS AND WARRANTIES
	 	 	30	 
	 
	 	 	 	 
	Section 3.01 Financial Statements; No Material Adverse Change
	 	 	30	 
	Section 3.02 Litigation
	 	 	31	 
	Section 3.03 Due Organization
	 	 	31	 
	Section 3.04 Consents and Approvals
	 	 	31	 
	Section 3.05 Corporate Power, Authorization and Enforceability
	 	 	31	 
	Section 3.06 ERISA
	 	 	31	 
	Section 3.07 No Conflict
	 	 	32	 
	Section 3.08 No Default
	 	 	32	 
	Section 3.09 Payment of Taxes
	 	 	32	 
	Section 3.10 Investment Company Status
	 	 	32	 
	Section 3.11 Environmental Matters
	 	 	32	 
	Section 3.12 Disclosure
	 	 	32	 
	 
	 	 	 	 
	Article IV CONDITIONS OF CREDIT
	 	 	33	 
	 
	 	 	 	 
	Section 4.01 Conditions to Effective Date
	 	 	33	 
	Section 4.02 Conditions to Initial Borrowing
	 	 	33	 
	Section 4.03 Conditions to All Borrowings
	 	 	35	 






i









 






	 	 	 	 	 
	 	 	Page
	Article V AFFIRMATIVE COVENANTS
	 	 	36	 
	 
	 	 	 	 
	Section 5.01 Financial Statements
	 	 	36	 
	Section 5.02 Notices of Material Events
	 	 	36	 
	Section 5.03 Maintenance of Insurance
	 	 	37	 
	Section 5.04 Payment of Taxes
	 	 	37	 
	Section 5.05 Maintenance of Corporate Existence
	 	 	37	 
	Section 5.06 Maintenance of Property
	 	 	37	 
	Section 5.07 Compliance with Laws
	 	 	37	 
	Section 5.08 Books and Records; Inspections
	 	 	37	 
	Section 5.09 Use of Proceeds
	 	 	38	 
	 
	 	 	 	 
	Article VI NEGATIVE COVENANTS
	 	 	38	 
	 
	 	 	 	 
	Section 6.01 Leverage Ratio
	 	 	38	 
	Section 6.02 Liens
	 	 	38	 
	Section 6.03 Fundamental Changes
	 	 	39	 
	Section 6.04 Subsidiary Indebtedness
	 	 	40	 
	 
	 	 	 	 
	Article VII EVENTS OF DEFAULT
	 	 	41	 
	 
	 	 	 	 
	Section 7.01 Events of Default
	 	 	41	 
	Section 7.02 Consequences of an Event of Default
	 	 	42	 
	 
	 	 	 	 
	Article VIII THE ADMINISTRATIVE AGENT
	 	 	43	 
	 
	 	 	 	 
	Article IX MISCELLANEOUS
	 	 	45	 
	 
	 	 	 	 
	Section 9.01 Notices
	 	 	45	 
	Section 9.02 Waivers; Amendments
	 	 	45	 
	Section 9.03 Expenses; Indemnity; Damage Waiver
	 	 	46	 
	Section 9.04 Successors and Assigns
	 	 	47	 
	Section 9.05 Survival
	 	 	50	 
	Section 9.06 Counterparts; Integration; Effectiveness
	 	 	50	 
	Section 9.07 Severability
	 	 	50	 
	Section 9.08 Right of Setoff
	 	 	51	 
	Section 9.09 Governing Law; Jurisdiction; Consent to Service of Process
	 	 	51	 
	Section 9.10 WAIVER OF JURY TRIAL
	 	 	51	 
	Section 9.11 Headings
	 	 	52	 
	Section 9.12 Confidentiality
	 	 	52	 
	Section 9.13 Interest Rate Limitation
	 	 	53	 
	Section 9.14 USA PATRIOT Act
	 	 	53	 
	Section 9.15 No Other Duties, etc.
	 	 	53	 






ii









 






	 	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	Exhibit A Form of Assignment and Assumption
	 	 	 	 
	Exhibit B Form of Exemption Certificate
	 	 	 	 
	 
	 	 	 	 
	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	Schedule 2.01 Commitments
	 	 	 	 
	Schedule 3.07 No Conflict
	 	 	 	 
	Schedule 6.02 Existing Liens
	 	 	 	 
	Schedule 6.04 Existing Indebtedness
	 	 	 	 






iii









 






     CREDIT AGREEMENT (this “Agreement”), dated as of March 31, 2010 by and among AIR
PRODUCTS AND CHEMICALS, INC., a Delaware corporation (the “Borrower”), the Lenders parties
hereto from time to time and JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity,
the “Administrative Agent”) for the Lenders hereunder.



R E C I T A L S:




     WHEREAS, the Borrower has commenced, through Air Products Distribution, Inc., a newly formed
Subsidiary (“Offerco”), a tender offer (the “Offer”) for all of the common stock of
Airgas, Inc., a Delaware corporation (the “Target”);



     WHEREAS, the Borrower intends to effect a merger (the “Merger”) of Offerco with the
Target, with the surviving corporation of the Merger being a wholly owned Subsidiary; and



     WHEREAS, in order to finance the Offer and the Merger, to assist the Target in effecting
timely prepayments of certain of its existing indebtedness as are required under the terms thereof
as a consequence of the Offer or the Merger (the “Target Refinancing”), to pay fees and
expenses in connection with the Offer, the Merger and the Target Refinancing and the financing
thereof and to provide for the working capital and general corporate needs of the Borrower and its
Subsidiaries prior to and following the Merger, the Borrower has requested that the Lenders enter
into this Agreement and make the Loans provided for herein;



     NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:



Article I




DEFINITIONS; CONSTRUCTION



          Section 1.01 Certain Definitions. As used herein, the following words and
terms shall have the following meanings:




     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.



     “Adjusted LIBO Rate” shall mean, with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in accordance with the
following formula:



LIBO Rate

1.00 - Eurocurrency Reserve Requirements





     “Administrative Agent” shall have the meaning set forth in the preamble hereto.



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



     “Affiliate” of a specified Person shall mean any Person which directly or indirectly
Controls, or is Controlled by, or is under common Control with, such specified Person.



 









 





     “Agreement” shall have the meaning set forth in the preamble hereto.



     “Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Adjusted LIBO Rate in effect on such day (or,
if such day is not a Business Day, as of the preceding Business Day) in respect of a proposed
Eurodollar Loan with a one-month Interest Period commencing two Business Days thereafter plus 1%
and (c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Adjusted LIBO Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such change in the Prime
Rate, the Adjusted LIBO Rate or the Federal Funds Effective Rate, respectively.



     “Applicable Percentage” shall mean, with respect to any Lender, the percentage of the
Total Commitments represented by such Lender’s Commitment; provided that if any Lender
shall be a Defaulting Lender, “Applicable Percentage” shall mean the percentage of the Total
Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s
Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to any assignments.



     “Applicable Pricing Grid” shall mean the table set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable Rate	 	 
	Public Debt Ratings	 	Eurodollar Loan	 	ABR Loan	 	Commitment Fee Rate
	> A- or A3
	 	 	1.75	%	 	 	0.75	%	 	 	0.25	%
	 
	= BBB+ or Baa1
	 	 	2.00	%	 	 	1.00	%	 	 	0.30	%
	 
	= BBB or Baa2
	 	 	2.25	%	 	 	1.25	%	 	 	0.375	%
	 
	= BBB- or Baa3
	 	 	2.75	%	 	 	1.75	%	 	 	0.50	%
	 
	< BBB- or Baa3
	 	 	3.50	%	 	 	2.50	%	 	 	0.75	%






     “Applicable Rate” shall mean for each Type of Loan, as of any date of determination,
the rate per annum determined pursuant to the Applicable Pricing Grid by reference to the Public
Debt Ratings in effect at the time; provided that each of the Applicable Rate percentages
set forth in the table included in the definition of the term “Applicable Pricing Grid” with
respect to Eurodollar Loans and ABR Loans shall increase by 0.50% on the 90th day following the
Closing Date and on each 90th day thereafter.



     “Approved Fund” shall have the meaning assigned to such term in Section 9.04.



     “Arrangers” shall mean, collectively, the Lead Arranger and The Bank of
Tokyo-Mitsubishi UFJ, Ltd., BNP Paribas, Deutsche Bank Securities Inc., HSBC Securities (USA) Inc.
and The Royal Bank of Scotland plc, in their capacities as joint lead arrangers in respect of the
credit facility established hereunder.



2









 





     “Asset Sale” shall mean any sale or other disposition of assets (including any assets
sold or agreed to be sold in order to secure regulatory approval for the consummation of the Offer
or the Merger, but excluding any Unrestricted Margin Stock) to a Person other than the Borrower or
a Subsidiary thereof in one transaction or series of related transactions for Net Cash Proceeds of
$100,000,000 or more, other than (a) any such sale or other disposition of inventory, used or
surplus equipment, cash or cash equivalents and (b) any such sale or other disposition consummated
in connection with any securitization facility.



     “Assignment and Assumption” shall mean an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.



     “Availability Period” shall mean the period from and including the Closing Date to but
excluding the Commitment Termination Date.



     “Available Commitment” shall mean, as to any Lender at any time, an amount equal to
the excess, if any, of (a) such Lender’s Commitment then in effect over (b) the aggregate
principal amount of such Lender’s Loans then outstanding.



     “Board” shall mean the Board of Governors of the Federal Reserve System of the United
States (or any successor).



     “Bookrunner Fee Letter” shall mean the Fee Letter dated as of February 4, 2010, among
the Borrower, JPMorgan Chase Bank, N.A. and J.P. Morgan Securities, Inc., as amended to the date
hereof.



     “Borrower” shall have the meaning set forth in the preamble hereto.



     “Borrowing” shall mean Loans of the same Type made, converted or continued on the same
date and, in the case of Eurodollar Loans, as to which the same Interest Period is in effect.



     “Borrowing Request” shall mean a request by the Borrower for a Borrowing in accordance
with Section 2.03.



     “Business Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.



     “Capital Lease Obligations” of any Person shall mean the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



     “Capital Stock” shall mean any and all shares of capital stock (whether common or
preferred) of the Borrower.



     “Change in Law” shall mean (a) the adoption of any law, rule or regulation after the
date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.13(b), by any lending office of such Lender
or by such Lender’s holding company,



3









 




if any) with any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.




     “Change of Control” shall mean the occurrence of either of the following:



     (a) any “person” (as such term is used in Sections 13(d) and 14(d)(2) of the Securities and
Exchange Act of 1934, as in effect on the date hereof) or group of persons (as so used), other than
the Borrower, any company a majority of whose outstanding stock entitled to vote is owned directly
or indirectly by the Borrower (a “Controlled Subsidiary”), or a trustee of an employee
benefit plan sponsored solely by the Borrower and/or a Controlled Subsidiary, is or becomes the
“beneficial owner” (as determined pursuant to Rule 13d-3 under the Securities and Exchange Act of
1934), directly or indirectly, of equity interests of the Borrower representing more than 40% of
the aggregate ordinary voting power of the Borrower’s then-outstanding voting equity interests; or



     (b) during any period of two consecutive years, the occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Borrower by directors who were not
(i) directors of the Borrower at the beginning of such period, (ii) appointed by directors who were
directors at the beginning of such period or by directors so appointed or (iii) nominated or
approved for election to the board of directors of the Borrower by directors described in the
preceding clause (i) or (ii).



     “Closing Date” shall have the meaning set forth in Section 4.02.



     “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.



     “Commitment” shall mean, as to any Lender, the commitment of such Lender to make Loans
to the Borrower, expressed as an amount representing the maximum aggregate principal amount of such
Lender’s Loans hereunder, as such commitment may be reduced or increased from time to time pursuant
hereto. The original amount of each Lender’s Commitment as of the date hereof is set forth on
Schedule 2.01. The original aggregate amount of the Commitments is $6,724,000,000.



     “Commitment Fee Rate” shall mean, as of any date of determination, the rate per annum
determined pursuant to the Applicable Pricing Grid by reference to the Public Debt Ratings in
effect at the time.



     “Commitment Letter” shall mean the Amended and Restated Commitment Letter dated
March 3, 2010, among the Borrower, JPMorgan Chase Bank, N.A. and J.P. Morgan Securities Inc.



     “Commitment Termination Date” shall mean the earlier of (a) the day following the
Merger Date, (b) the Maturity Date and (c) the date of any other termination of all the Commitments
in accordance with this Agreement.



     “Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such
period plus, without duplication and to the extent deducted in determining such
Consolidated Net Income, the sum of (a) income tax provision, (b) interest expense, amortization,
writedown or writeoff of debt discount and debt issuance costs, commissions, discounts and other
fees and charges (including prepayment premiums, penalties or similar charges in connection with
the Target Refinancing) associated with Indebtedness (including the Loans) and discount on
securitization of receivables, (c) depreciation and amortization expense, (d) amortization,
writedown or writeoff of intangibles (including, but not limited to, goodwill) and organization
costs, (e) any unusual or non-recurring non-cash expenses or losses (including losses on sales of
assets outside of the ordinary course of business), (f) transaction fees and expenses directly
related to the Transactions and (g) non-cash charges incurred in respect of restructurings, plant
closings, headcount reductions, cost reductions or other similar actions, and minus, to



4









 




the extent included in determining such Consolidated Net Income, the sum of (i) income tax
credits (to the extent not netted from income tax provision) and (ii) any unusual or non-recurring
non-cash income or gains (including gains on the sales of assets outside of the ordinary course of
business). For the purposes of calculating Consolidated EBITDA for any Test Period pursuant to any
determination of the Leverage Ratio, (i) if at any time during such Test Period the Borrower or any
Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for such Test Period
shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the
property that is the subject of such Material Disposition for such Test Period or increased by an
amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Test Period and
(ii) if during such Test Period the Borrower or any Subsidiary shall have made a Material
Acquisition, Consolidated EBITDA for such Test Period shall be calculated after giving pro
forma effect thereto as if such Material Acquisition occurred on the first day of such Test
Period. As used in this definition, “Material Acquisition” shall mean any acquisition of
property or series of related acquisitions of property that (a) constitutes assets comprising all
or substantially all of an operating unit of a business or constitutes all or substantially all of
the equity interests of a Person (any such property, a “Business Unit”) and (b) the
aggregate consideration for which (including Indebtedness assumed in connection therewith) exceeds
$100,000,000; and “Material Disposition” shall mean any disposition of property or series
of related dispositions of property that (a) constitutes a Business Unit and (b) the aggregate
consideration for which (including Indebtedness assumed in connection therewith) exceeds
$100,000,000.




     “Consolidated Net Income” shall mean, for any period, the consolidated net income (or
loss) of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded the income (or deficit) of any Project Finance
Subsidiary having Limited Recourse Debt outstanding at any time during such period.



     “Consolidated Total Debt” shall mean, at any date, the aggregate principal amount of
all Indebtedness that would be reflected at such date as short-term borrowings, current portion of
long-term debt or long-term debt on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with GAAP, excluding Limited Recourse Debt of any Project
Finance Subsidiary.



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



     “Default” shall mean any event or condition which constitutes an Event of Default or
which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



     “Defaulting Lender” shall mean any Lender that has (a) failed to fund any portion of
its Loans within three Business Days of the date required to be funded by it hereunder, unless such
Lender’s failure to fund such Loans is based on such Lender’s reasonable determination that the
conditions precedent to funding such Loans under this Agreement have not been satisfied and such
Lender has notified the Administrative Agent in writing of such, (b) notified the Borrower, the
Administrative Agent or any Lender in writing that it does not intend to comply with any of its
funding obligations under this Agreement or has made a public statement to the effect that it does
not intend to comply with its funding obligations under this Agreement or under other agreements in
which it commits to extend credit, (c) failed, within three Business Days after request by the
Administrative Agent (which request has been made based on the Administrative Agent’s reasonable
belief that such Lender may not fulfill its funding obligation and a copy of which request has been
sent to the Borrower), to confirm that it will comply with the terms of this Agreement relating to
its obligations to fund prospective Loans, provided that any such Lender shall cease to be
a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Administrative
Agent, (d) otherwise failed to pay over to the Administrative Agent or any other



5









 




Lender any other amount required to be paid by it hereunder within three Business Days of the
date when due, unless the subject of a good faith dispute, or (e) (i) has been adjudicated as, or
has been determined by any Governmental Authority having regulatory authority over such Person or
its assets to be, insolvent or has a parent company that has been adjudicated as, or has been
determined by any Governmental Authority having regulatory authority over such Person or its assets
to be, insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or
appointment or has a parent company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken
any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment (unless in the case of any Lender referred to in this clause (e), the
Borrower and the Administrative Agent shall be satisfied that such Lender intends, and has all
approvals required to enable it, to continue to perform its obligations as a Lender hereunder).
Notwithstanding the foregoing, no Lender shall be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in such Lender or a parent company thereof by a
Governmental Authority or an instrumentality thereof.




     “Dollar”, “Dollars” and the symbol “$” shall mean lawful money of the
United States of America.



     “Duration Fee Rate” shall mean a rate determined in accordance with the table set
forth below:



	 	 	 	 	 
	Days after Closing Date	 	Rate
	90 days:
	 	 	0.75	%
	180 days:
	 	 	1.25	%
	270 days:
	 	 	1.75	%






     “Effective Date” shall have the meaning set forth in Section 4.01.



     “Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, binding notices or binding agreements issued, promulgated
or entered into by any Governmental Authority, relating in any way to the environment, preservation
or reclamation of natural resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters as they relate to exposure to Hazardous Materials.



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



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time.



     “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.



6









 





     “ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of
ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which
the 30-day notice period referred to in Section 4043(c) of ERISA is waived); (b) any failure by any
Plan to satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the
Code or Section 302 of ERISA) applicable to such Plan, whether or not waived; (c) the filing
pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan, the failure to make by its due date a
required installment under Section 430(j) of the Code with respect to any Plan or the failure by
the Borrower or any of its ERISA Affiliates to make any required contribution to a Multiemployer
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan, including but not limited to the
imposition of any Lien in favor of the PBGC or any Plan; (e) a determination that any Plan is, or
is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or
Section 303 of ERISA); (f) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan under Section 4042 of ERISA; (g) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (h) the receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent (within the meaning of Section 4245 of
ERISA) or in reorganization (within the meaning of Section 4241 of ERISA) or in endangered or
critical status (within the meaning of Section 432 of the Code or Section 305 or Title IV of
ERISA).



     “Eurocurrency Reserve Requirements” shall mean, for any day as applied to a Eurodollar
Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of
reserve requirements in effect on such day (including basic, supplemental, marginal and emergency
reserves) under any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a
member bank of the Federal Reserve System.



     “Eurodollar”, when used in reference to any Loan or Borrowing, shall refer to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.



     “Event of Default” shall have the meaning assigned to such term in Section 7.01.



     “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or
any other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed
on the Administrative Agent or any Lender or other such recipient as a result of a present or
former connection between the Administrative Agent or such Lender or other such recipient and the
jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from the Administrative
Agent or such Lender or other such recipient having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any other Loan Document),
(b) any branch profits taxes imposed by the United States of America or any similar tax imposed by
any other jurisdiction described in clause (a) above and (c) any withholding tax that (i) is
attributable to a Lender’s failure to comply with the requirements of Section 2.15(f) or (ii) is a
United States withholding tax imposed on amounts payable to such Lender at the time such Lender
becomes a party to this Agreement, except to the extent that such



7









 




Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional
amounts from the Borrower with respect to Taxes pursuant to Section 2.15.




     “Existing Agreement” shall mean the Borrower’s existing $1,450,000,000 Revolving
Credit Agreement dated as of May 23, 2006, as amended.



     “Federal Funds Effective Rate” shall mean, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.



     “Fee Payment Date” shall mean (a) the third Business Day following the last day of
each March, June, September and December and (b) the last day of the Availability Period.



     “Financial Officer” shall mean the chief financial officer, principal accounting
officer, treasurer or controller of the Borrower.



     “Foreign Subsidiary” shall mean any Subsidiary other than any Subsidiary that is
organized under the laws of the United States of America, any State thereof or the District of
Columbia.



     “GAAP” shall mean generally accepted accounting principles in the United States of
America.



     “Governmental Authority” shall mean the government of the United States of America,
any other nation or 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.



     “Guarantee” of or by any Person (the “guarantor”) shall mean any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness of the payment thereof, (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness; provided, that
the term Guarantee shall not include endorsements for collection or deposit in the ordinary course
of business.



     “Hazardous Materials” shall mean all explosive or radioactive substances or wastes and
all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature that in relevant form
or concentration are regulated pursuant to any Environmental Law.



     “Indebtedness” of any Person shall mean, without duplication, (a) all obligations of
such Person for borrowed money or with respect to deposits or advances of any kind, other than
deposits or advances in the ordinary course of business, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title



8









 




retention agreements relating to property acquired by such Person (other than current accounts
payable and trade accounts and accrued expenses incurred in the ordinary course of business and
other than customary reservations or retentions of title under agreements with suppliers entered in
the ordinary course of business), (d) all obligations of such Person in respect of the deferred
purchase price of property or services having the effect of a borrowing (other than (i) current
accounts payable and trade accounts and accrued expenses incurred in the ordinary course of
business and (ii) any noncompete agreement, purchase price adjustment, earnout or deferred payment
of a similar nature), (e) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed,
but limited to the book value of such property when recourse is limited to such property, (f) all
Guarantees by such Person in respect of Indebtedness of others, (g) all Capital Lease Obligations
of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all obligations, contingent or
otherwise, of such Person in respect of bankers’ acceptances. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which such Person is a
general partner) to the extent such Person is liable therefor as a result of such Person’s
ownership interest in or other relationship with such entity, except to the extent the terms of
such Indebtedness provide that such Person is not liable therefor.




     “indemnified person” shall have the meaning specified in Section 9.03(b).



     “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.



     “Information” shall have the meaning specified in Section 9.12(a).



     “Interest Election Request” shall mean a request by the Borrower to convert or
continue a Borrowing in accordance with Section 2.05.



     “Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last day of
each March, June, September and December and (b) with respect to any Eurodollar Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of
a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior
to the last day of such Interest Period that occurs at intervals of three months’ duration after
the first day of such Interest Period.



     “Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect;
provided, that (a) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (b) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.



     “Lead Arranger” shall mean J.P. Morgan Securities, Inc., in its capacity as joint lead
arranger and sole bookrunner in respect of the credit facility established hereunder.



9









 





     “Lenders” shall mean the Persons listed on Schedule 2.01 and any other Person that
shall have become a party hereto pursuant to an Assignment and Assumption, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and Assumption.



     “Leverage Ratio” shall mean, as of the last day of any Test Period, the ratio of (a)
Consolidated Total Debt at such time to (b) Consolidated EBITDA for such period.



     “LIBO Rate” shall mean, with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum equal to the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of such Interest Period appearing
on the Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, two Business Days prior to the
beginning of such Interest Period. In the event that such rate does not appear on such page (or
otherwise on such screen), the “LIBO Rate” shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be selected by the
Administrative Agent or, in the absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 11:00 a.m., London time, two Business
Days prior to the beginning of such Interest Period in the interbank eurodollar market where its
eurodollar and foreign currency and exchange operations are then being conducted for delivery on
the first day of such Interest Period for the number of days comprised therein.



     “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.



     “Limited Recourse Debt” shall mean Indebtedness of a Project Finance Subsidiary as to
which, at the time a determination is being made, the holder of such Indebtedness has recourse,
with respect to such Indebtedness, solely against the assets it has financed or the cash flows
therefrom and does not have direct or indirect recourse (through a guarantee, keepwell or
otherwise) against the Borrower, any other Subsidiary or any of their assets other than the stock
(or similar equity interest) of such Project Finance Subsidiary.



     “Loans” shall mean the loans made by the Lenders to the Borrower pursuant to this
Agreement.



     “Loan Documents” shall mean this Agreement, any amendments thereto and, except for
purposes of Section 9.02, the Notes.



     “Margin Stock” has the meaning assigned to such term in Regulation U of the Board.



     “Material Adverse Effect” shall mean a material adverse effect on (a) the business,
property, operations or financial condition of the Borrower and its Subsidiaries, taken as a whole,
(b) the ability of the Borrower to perform its payment obligations under this Agreement and the
other Loan Documents or (c) the validity or enforceability of this Agreement or any of the other
Loan Documents or the rights and remedies of the Administrative Agent or the Lenders hereunder or
thereunder.



     “Material Indebtedness” shall mean Indebtedness (other than the Loans and Limited
Recourse Debt) or obligations in respect of one or more Swap Agreements of the Borrower and its
Subsidiaries in an aggregate principal amount exceeding $125,000,000. For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary
in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting



10









 




agreements) that the Borrower or such Subsidiary would be required to pay if such Swap
Agreement were terminated at such time.




     “Material Subsidiary” shall mean, at any time of determination, any Subsidiary the
total sales of which for the fiscal year most recently completed prior to such time equal 5% or
more of the consolidated total sales of the Borrower and its Subsidiaries for such fiscal year.
For purposes of determining Material Subsidiaries after the consummation of the Offer or the
Merger, the consolidated total sales of the Borrower and its Subsidiaries for any fiscal year shall
be determined after giving pro forma effect to the consolidated total sales of the Target and its
Subsidiaries as if the Offer or the Merger, as the case may be, has been consummated at the
beginning of such fiscal year.



     “Maturity Date” shall mean the one-year anniversary of the Closing Date.



     “Merger” shall have the meaning set forth in the recitals hereto.



     “Merger Agreement” shall mean any agreement (including any schedules and exhibits
thereto) that may be entered into by the Borrower or any of its Subsidiaries and the Target
providing for the Merger.



     “Merger Date” shall mean the date of consummation of the Merger.



     “Merger Documents” shall mean the Merger Agreement and any documentation related
thereto, including any side letters.



     “Moody’s” shall mean Moody’s Investor’s Services, Inc., or any successor thereto.



     “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3)
of ERISA.



     “Net Cash Proceeds” shall mean, (a) in connection with any Asset Sale, the proceeds
thereof actually received by the Borrower or one or more of its Subsidiaries in the form of cash
and cash equivalents (including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise,
but only as and when received), net of the sum, without duplication, of (i) attorneys’ fees,
accountants’ fees, consulting fees, investment banking fees and other customary fees actually
incurred in connection therewith and other expenses actually incurred in connection therewith, (ii)
amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on any asset that is the subject of such Asset Sale, (iii) taxes paid or
reasonably estimated to be payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements) and (iv) the amount of any reserves
established to fund contingent liabilities reasonably estimated to be payable as a result thereof
and (b) in connection with any issuance or sale of Capital Stock or any incurrence of Indebtedness,
the proceeds thereof actually received by the Borrower or one or more of its Subsidiaries in the
form of cash and cash equivalents, net of attorneys’ fees, accountants’ fees, consulting fees,
investment banking fees, underwriting discounts and commissions or placement fees, and other
customary fees actually incurred in connection therewith and other expenses actually incurred in
connection therewith.



     “Non-Excluded Taxes” shall have the meaning set forth in Section 2.15(a).



     “Non-U.S. Lender” shall mean a Lender that is not a U.S. Person.



11









 





     “Notes” shall mean, collectively, the promissory notes evidencing the Loans issued and
delivered pursuant to Section 2.07(e).



     “Obligations” shall mean the unpaid principal of and interest on (including interest
accruing after the maturity of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent or to any Lender, whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may arise under, out of or in
connection with this Agreement or any other Loan Document, whether on account of fees, indemnities,
costs, expenses (including all fees, charges and disbursements of counsel to the Administrative
Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise.



     “Offer” shall have the meaning set forth in the recitals hereto.



     “Offer Documents” shall mean the definitive documents related to the Offer, including,
but not limited to, the Tender Offer Statement and any amendments thereto, filed from time to time
with the Securities and Exchange Commission under Section 14(d)(1) or 13(e)(1) of the Securities
Exchange Act of 1934.



     “Offerco” shall have the meaning set forth in the recitals hereto.



     “Other Taxes” shall mean any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document (including any interest, additions to tax or penalties
applicable thereto).



     “Participant” shall have the meaning set forth in Section 9.04(c).



     “Participant Register” shall have the meaning set forth in Section 9.04(c)(i).



     “Patriot Act” shall have the meaning set forth in Section 9.14.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA and any successor entity performing similar functions.



     “Permitted Encumbrances” shall mean:




     (a) Liens imposed by law for Taxes that are not yet due or are being contested in
compliance with Section 5.04;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like
Liens imposed by law, arising in the ordinary course of business;




     (c) pledges and deposits made in the ordinary course of business in compliance with, or
to secure letters of credit issued in connection with, workers’ compensation, unemployment
insurance and other social security laws or regulations;




     (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance letters of credit, performance bonds and
other obligations of a like nature, in each case in the ordinary course of business;



12









 






     (e) easements, zoning restrictions, rights-of-way, landlords’ liens on property held
under lease, tenants’ rights under leases and similar encumbrances on real property imposed
by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any Subsidiary;




     (f) attachment, judgment or similar Liens in respect of judgments that do not
constitute an Event of Default under Section 7.01(g) and are not in excess of $125,000,000
in the aggregate at any time outstanding (net of any amounts covered by a third-party
insurer as to which such insurer has been notified of a potential claim and does not dispute
coverage);




     (g) the rights of collecting banks and other financial institutions having a right of
setoff, revocation, refund or chargeback with respect to money or instruments on deposit
with or in the possession of such financial institution;




     (h) Liens attaching solely to cash earnest money deposits made by the Borrower or any
of its Subsidiaries in connection with any letter of intent or purchase agreement entered
into in connection with an acquisition;




     (i) Liens arising by operation of law on insurance policies and proceeds thereof to
secure premiums thereunder;




     (j) any interest of title of a lessor or sublessor under, and Liens arising from
Uniform Commercial Code financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases and subleases permitted under this
Agreement;




     (k) licenses, sublicenses, leases or subleases that do not interfere in any material
respect with the business of the Borrower or any Subsidiary; and




     (l) Liens encumbering goods and documents of title with respect to such goods and
arising in the ordinary course of business in connection with the issuance of documentary
letters of credit, in each case not incurred or made in connection with the borrowing of
money or the obtaining of advances or similar credit, and Liens arising out of title
retention provisions in a supplier’s standard condition of supply of goods acquired in the
ordinary course of business;


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness (other than any letter of credit referred to in the definition of such term).




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



     “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



     “Prepayment Account” shall have the meaning specified in Section 2.09(e).



     “Prime Rate” shall mean the rate of interest per annum publicly announced from time to
time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office located in
New York, New York;



13









 




each change in the Prime Rate shall be effective from and including the date such change
is publicly announced as being effective.




     “Project Finance Subsidiary” shall mean any Subsidiary formed or utilized for the
primary purpose of owning or operating specific assets, the acquisition of which is financed solely
by Limited Recourse Debt and equity.



     “Public Debt Rating” shall mean, as of any date, the rating that has been most
recently and officially announced by either S&P or Moody’s, as the case may be, for any class of
non-credit enhanced long-term senior unsecured debt issued by the Borrower. For purposes of the
foregoing, (a) if the ratings established or deemed to have been established by S&P and Moody’s for
such debt shall be changed (other than as a result of a change in the rating system of S&P or
Moody’s), such change shall be effective as of the date on which it is first announced by the
applicable rating agency; (b) if the ratings established or deemed to have been established by S&P
and Moody’s for such debt shall fall within different levels, the Applicable Rate or Commitment Fee
Rate, as the case may be, shall be based on the higher of the two ratings unless one of the two
ratings is two or more levels lower than the other, in which case the Applicable Rate or Commitment
Fee Rate, as the case may be, shall be determined by reference to the level next below that of the
higher of the two ratings; and (c) if either S&P or Moody’s shall not have in effect a rating for
such debt (other than by reason of the circumstances referred to in the last sentence of this
paragraph), then such rating agency shall be deemed to have established a rating below BBB- or
Baa3, as applicable. Each change in the Applicable Rate or Commitment Fee Rate, as the case may
be, shall apply during the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change. If the rating system of S&P
or Moody’s shall change, the Borrower and the Lenders shall negotiate in good faith to amend this
paragraph to reflect such changed rating system and, pending the effectiveness of any such
amendment, the Applicable Rate or Commitment Fee Rate, as the case may be, shall be determined by
reference to the rating most recently in effect prior to such change.



     “Register” shall have the meaning set forth in Section 9.04.



     “Regulation S-X” shall mean Regulation S-X of the Securities Act of 1933, as amended.



     “Regulations” shall mean regulations of the Board, as in effect from time to time.



     “Related Parties” shall mean, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.



     “Required Lenders” shall mean, at any time, Lenders having Loans and unused
Commitments representing more than 50% of the sum of the outstanding Loans and unused Commitments
at such time.



     “Restricted Margin Stock” shall mean Margin Stock owned by the Borrower or any
Subsidiary the value of which (determined as required under clause (2)(i) of the definition of
“Indirectly Secured” set forth in Regulation U of the Board) represents not more than 33% of the
aggregate value (determined as required under clause (2)(i) of the definition of “Indirectly
Secured” set forth in Regulation U of the Board), on a consolidated basis, of the property and
assets of the Borrower and its Subsidiaries (other than any Margin Stock) that is subject to the
provisions of Section 2.09 or Article VI (including Section 6.02).



     “S&P” shall mean Standard & Poor’s Rating Services, or any successor thereto.



     “Subsidiary” shall mean, with respect to any Person (the “parent”) at any
date, any corporation, limited liability company, partnership, association or other entity the
accounts of which would be



14









 




consolidated with those of the parent in the parent’s consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other entity of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held. Unless the context
otherwise requires, all references herein to a Subsidiary shall be deemed to be references to a
Subsidiary of the Borrower.




     “Swap Agreement” shall mean any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or any of its Subsidiaries
shall be a Swap Agreement.



     “Target” shall have the meaning set forth in the recitals hereto.



     “Target Refinancing” shall have the meaning set forth in the recitals hereto.



     “Taxes” shall mean any and 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).



     “Tender Offer Statement” shall mean the Tender Offer Statement on Schedule TO filed
with the Securities and Exchange Commission by the Borrower and Offerco, together with any
amendments and supplements thereto.



     “Test Period” shall mean, at any date of determination, the most recently completed
four consecutive fiscal quarters of the Borrower ending on or prior to such date.



     “Total Commitments” shall mean, at any time, the aggregate amount of the Commitments
then in effect.



     “Transactions” shall mean, collectively (a) the execution, delivery and performance by
the Borrower of this Agreement, (b) the borrowing of Loans and the use of the proceeds thereof, (c)
the consummation of the Offer, (d) the consummation of the Merger and (e) the Target Refinancing.



     “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.



     “Unrestricted Margin Stock” shall mean any Margin Stock owned by the Borrower or any
Subsidiary which is not Restricted Margin Stock.



     “U.S. Person” shall mean a “United States person” within the meaning of
Section 7701(a)(30) of the Code.



     “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV
of ERISA.



15









 





          Section 1.02 Construction. Unless the context of this Agreement otherwise
clearly requires, references to the plural include the singular, the singular the plural and the
part the whole; and “property” includes all properties and assets of any kind or nature, tangible
or intangible, real, personal or mixed. The words “hereof,” “herein,” “hereunder” and similar
terms in this Agreement refer to this Agreement as a whole and not to any particular provision of
this Agreement. 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 (a) any definition of or
reference to any agreement (including this Agreement), instrument or other document herein 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) and (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns (to the extent such assigns are not
prohibited under this Agreement). The section and other headings contained in this Agreement and
the Table of Contents preceding this Agreement are for reference purposes only and shall not
control or affect the construction of this Agreement or the interpretation thereof in any respect.
Article, section, subsection, exhibit and schedule references are to articles, sections and
subsections of, and schedules and exhibits to, this Agreement unless otherwise specified.




          Section 1.03 Accounting Principles. All computations and determinations as to
accounting or financial matters shall be made, and, except as otherwise expressly provided herein,
all financial statements to be delivered pursuant to this Agreement shall be prepared, in
accordance with, and all accounting or financial terms shall have the meanings ascribed to such
terms by, GAAP as in effect from time to time; provided that if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the Effective Date in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. Notwithstanding any other provision contained herein,
all computations of amounts and ratios referred to in this Agreement shall be made without giving
effect to any election under FASB ASC Topic 825 “Financial Instruments” (or any other financial
accounting standard having a similar result or effect) to value any Indebtedness of the Borrower at
“fair value” as defined therein.




          Section 1.04 Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”).
Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”).




Article II




THE LOANS



          Section 2.01 Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Loans to the Borrower from time to time during the Availability
Period in an aggregate principal amount that will not result in (a) the aggregate principal amount
of such Lender’s Loans exceeding such Lender’s Commitment or (b) the sum of the aggregate principal
amount of all Loans exceeding the Total Commitments.




          Section 2.02 Loans and Borrowings. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with their respective





16











 




Commitments. The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans
as required.




          (b) Subject to Section 2.12, each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance herewith. Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this Agreement.




          (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000; provided that a Eurodollar Borrowing that results from a continuation of an
outstanding Eurodollar Borrowing may be in an aggregate amount that is equal to such outstanding
Borrowing. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $5,000,000. Borrowings of more
than one Type may be outstanding at the same time; provided that there shall not at any
time be more than a total of ten Eurodollar Borrowings outstanding.




          (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.




          Section 2.03 Requests for Borrowings.
(a) To request a Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, three Business Days before the date of the proposed Borrowing (or, in the case of any
Borrowing to be made on the Closing Date, such shorter period as may be agreed by the
Administrative Agent) or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New York
City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or fax (in the manner provided in
Section 9.01) to the Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:





          (i) the aggregate amount of the requested Borrowing;




          (ii) the date of such Borrowing, which shall be a Business Day;




          (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;




          (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and




          (v) the location and number of the Borrower’s account to which funds are to be
disbursed.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall






17









 







advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as
part of the requested Borrowing.




          Section 2.04 Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 1:00 p.m., New York City time, to the
account of the Administrative Agent most recently designated by it for such purpose by notice to
the Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in New York City and designated by the Borrower in the applicable Borrowing
Request.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed time of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section 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 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 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 (i) in the case of each Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.




          Section 2.05 Interest Elections. (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request or as otherwise provided in Section 2.03. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and,
in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.




          (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or fax (in the manner
provided in Section 9.01) to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.




          (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:





          (i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);



18









 






          (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




          (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and




          (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




          (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.




          (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the request of the Required
Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.




          Section 2.06 Termination and Reduction of Commitments. (a) The Commitments shall terminate on the Commitment Termination Date.




          (b) The Commitments shall reduce as set forth in Section 2.09(d).




          (c) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.08, the aggregate principal amount of outstanding Loans would
exceed the Total Commitments.




          (d) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (c) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this paragraph
shall be irrevocable; provided that a notice of termination of the Commitments delivered by
the Borrower may state that such notice is conditioned upon the occurrence of one or more events
specified therein, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied.




          (e) Any termination or reduction of the Commitments shall be permanent.





19









 








          Section 2.07 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Loan on the Maturity Date.




          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.




          (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof.




          (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that, in the event of any inconsistency in such
accounts maintained by a Lender and the Administrative Agent, entries made in the accounts
maintained by the Administrative Agent shall control; provided further that the
failure of any Lender or the Administrative Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with
the terms of this Agreement.




          (e) Any Lender may request that Loans made by it be evidenced by a Note. In such event, the
Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order
of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in a
form approved by the Administrative Agent and the Borrower. Thereafter, the Loans evidenced by
such Note and interest thereon shall at all times (including after assignment pursuant to Section
9.04) be represented by one or more Notes in such form payable to the order of the payee named
therein (or, if such Note is a registered note, to such payee and its registered assigns).




          Section 2.08 Optional Prepayments. (a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in accordance with paragraph (b) of this
Section; provided that each such partial prepayment shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000.




          (b) The Borrower shall notify the Administrative Agent by telephone (confirmed by fax (in the
manner provided in Section 9.01)) of any prepayment hereunder (i) in the case of prepayment of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the
date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00
a.m., New York City time on the date of such prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section 2.06(d), then such
notice of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.06(d). Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest as required by Section 2.11.




          Section 2.09 Mandatory Prepayments. (a) If any Capital Stock shall be issued by the Borrower at any time after the date hereof
(other than any such Capital Stock issued to current or former directors, officers and employees
pursuant to stock option or other benefit plans), an amount equal to






20









 







100% of the Net Cash Proceeds thereof shall be applied no later than the first Business Day
following the date of such issuance toward the prepayment of the Loans and, on the earlier of the
date of such application and such first Business Day, the Commitments shall be reduced by such
amount, in each case as set forth in Section 2.09(d).




          (b) If any Indebtedness for borrowed money shall be issued or incurred by the Borrower or any
of its Subsidiaries at any time after the date hereof in any offering of debt securities or under
any loan, credit or similar facilities (other than this Agreement), an amount equal to 100% of the
Net Cash Proceeds thereof shall be applied no later than the first Business Day following the
settlement date of such issuance or incurrence toward the prepayment of the Loans and, on the
earlier of the date of such application and such first Business Day, the Commitments shall be
reduced by such amount, in each case as set forth in Section 2.09(d); provided that this
paragraph shall not apply to the Net Cash Proceeds of (i) any Indebtedness incurred by the Target
and its Subsidiaries, except to the extent that the Borrower is capable of directing the Net Cash
Proceeds of such Indebtedness for use in connection with the Offer, the Merger or the Target
Refinancing, (ii) any Indebtedness under the Existing Agreement or any other existing debt security
or loan, credit or similar facility of the Borrower, the Target or any of their respective
Subsidiaries, (iii) any Indebtedness issued or incurred for working capital purposes or otherwise
in the ordinary course of business (including project financing and purchase money and other
Indebtedness incurred to finance the acquisition, construction or improvement of assets), (iv)
Indebtedness of the Borrower or any of its Subsidiaries to the Borrower or any of its Subsidiaries,
(v) any commercial paper or securitization facilities entered into in the ordinary course of
business and (vi) any Indebtedness that refinances, extends, renews or replaces any Indebtedness of
the Borrower or its Subsidiaries referred to in clause (i) or (ii) above (or any refinancing
Indebtedness referred to in this clause (vi)), other than any such refinancing Indebtedness
incurred in connection with the Target Refinancing, provided that (x) the aggregate
principal amount of Indebtedness that refinances, extends, renews or replaces the Existing
Agreement may not exceed by more than $550,000,000 in the aggregate the sum of the aggregate
principal amount of Indebtedness and unused commitments under the Existing Agreement and (y) the
aggregate principal amount of all such refinancing Indebtedness (other than any such Indebtedness
referred to in clause (x) above) may not exceed by more than $25,000,000 the sum of the aggregate
principal amount of Indebtedness and unused commitments (other than Indebtedness and unused
commitments under the Existing Agreement) that are the subject of such refinancings, extensions,
renewals or replacements.




          (c) If the Borrower or any of its Subsidiaries shall consummate any Asset Sale at any time
after the date hereof, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied no
later than the third Business Day following the date of consummation thereof toward the prepayment
of the Loans and, on the earlier of the date of such application or such third Business Day, the
Commitments shall be reduced by such amount, in each case as set forth in Section 2.09(d);
provided that this paragraph shall not apply to the Net Cash Proceeds of any Asset Sale by
the Target and its Subsidiaries, except to the extent that the Borrower is capable of directing the
Net Cash Proceeds of such Asset Sale for use in connection with the Offer, the Merger or the Target
Refinancing.




          (d) Net Cash Proceeds referred to in paragraphs (a), (b) and (c) of this Section shall, on the
date specified in such paragraphs, (i) result in a reduction of the Commitments by the amount of
such Net Cash Proceeds and (ii) if received on or after the Closing Date, be applied to the
prepayment of the Loans. Prior to any prepayment of Loans under this Section, the Borrower shall
specify the Borrowing or Borrowings to be prepaid (or, if no such specification shall have been
provided, the Administrative Agent shall apply such prepayment, first, to ABR Borrowings
and, second, to Eurodollar Borrowings in direct order of the next succeeding Interest
Payment Dates therefor). Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest as
required by Section 2.11.







21









 








          (e) At the option of the Borrower, amounts to be applied to prepay Eurodollar Borrowings
shall, if such prepayment would not occur on the last day of the relevant Interest Period, be
deposited in the Prepayment Account (as defined below). The Administrative Agent shall apply any
cash deposited in the Prepayment Account to prepay the relevant Eurodollar Borrowings on the last
day of the respective Interest Periods therefor (or, at the direction of the Borrower, on any
earlier date). For purposes of this Agreement, the term “Prepayment Account” shall mean an
account established by the Borrower with the Administrative Agent. The Administrative Agent will,
at the request of the Borrower, invest amounts on deposit in the Prepayment Account in cash
equivalents that mature prior to the last day of the applicable Interest Periods of the Eurodollar
Borrowings to be prepaid, provided that (i) the Administrative Agent shall not be required
to make any investment that, in its sole judgment, would require or cause the Administrative Agent
to be in, or would result in any, violation of any applicable law or regulation and (ii) the
Administrative Agent shall have no obligation to invest amounts on deposit in the Prepayment
Account if a Default or Event of Default shall have occurred and be continuing. The Borrower shall
indemnify the Administrative Agent for any losses relating to the investments so that the amount
available to prepay Eurodollar Borrowings on the last day of the applicable Interest Periods
therefor is not less than the amount that would have been available had no investments been made.
Other than any interest earned on such investments, the Prepayment Account shall not bear interest.
Interest or profits, if any, on such investments shall be deposited and reinvested and disbursed
as described above. If the maturity of the Loans has been accelerated pursuant to Article VII, the
Administrative Agent shall apply amounts on deposit in the Prepayment Account to prepay the
Eurodollar Borrowings.




          Section 2.10 Fees. (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender
a ticking fee for the period from and including the Effective Date to and excluding the Closing
Date, in an amount equal to 0.375% of the average daily amount of the Available Commitment of such
Lender, payable on the earlier of (i) the Closing Date and (ii) the Commitment Termination Date.




          (b) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee for the period from and including the Closing Date to and excluding the last day of
the Availability Period, computed at the Commitment Fee Rate on the average daily amount of the
Available Commitment of such Lender, payable quarterly in arrears on each Fee Payment Date,
commencing on the first such date to occur after the Closing Date.




          (c) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
duration fee on each of the 90th, 180th and 270th day after the
Closing Date in an amount equal to the product of (i) the applicable Duration Fee Rate and (ii) the
aggregate principal amount of the Loans of such Lender outstanding on such day.




          (d) The Borrower agrees to pay to the Administrative Agent, for its own account, an annual
administration fee payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.




          (e) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent for distribution, in the case of ticking fees, commitment fees and
duration fees, to the Lenders. All ticking fees and commitment fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). Fees paid shall not be refundable under any circumstances.




          Section 2.11 Interest. (a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate
plus the Applicable Rate.







22









 








          (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.




          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.




          (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and on the Maturity Date; provided that (i) interest accrued pursuant to
paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable
on the date of such repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such
Loan shall be payable on the effective date of such conversion.




          (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.




          Section 2.12 Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurodollar Borrowing:




          (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period; or




          (b) the Administrative Agent is advised in good faith by the Required Lenders that the
Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or fax as promptly as practicable thereafter and, until the Administrative Agent notifies
the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i)
any Interest Election Request that requests the conversion of any Borrowing to, or continuation of
any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request
requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.




          Section 2.13 Increased Costs. (a) If any Change in Law shall:





          (i) subject any Lender to any Tax on its capital reserves (or any similar Tax) with
respect to this Agreement or any Loan made by it (except for Indemnified Taxes covered by
Section 2.15 and changes in the rate of tax on the overall net income or profits of such
Lender);



23









 






          (ii) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); or




          (iii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender;


and the result of any of the foregoing shall be to increase the cost (other than lost profits) to
such Lender of making or maintaining any Eurodollar Loan or, in the case of (i), any Loans (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or otherwise), then, from time
to time upon request of such Lender, the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or reduction suffered.




          (b) Subject to Section 2.17, if any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s capital
or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or
the Loans made by such Lender to a level below that which such Lender or such Lender’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s
policies and the policies of such Lender’s holding company with respect to capital adequacy), then,
from time to time upon request of such Lender, the Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender’s holding company for any such
reduction suffered to the extent such a reduction is a consequence of this Agreement or the Loans
made by such Lender.




          (c) In connection with any request under paragraph (a) or (b) of this Section, the requesting
Lender shall deliver to the Borrower a certificate of such Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section, which shall contain a statement setting forth in
reasonable detail the basis for requesting such amount and shall be conclusive absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any such certificate within
10 days after receipt thereof.




          (d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of
such Lender’s intention to claim compensation therefor; provided further that, if
the Change in Law giving rise to such increased costs or reductions is retroactive, then the
180-day period referred to above shall be extended to include the period of retroactive effect
thereof.




          Section 2.14 Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an Event of Default),
(b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on
the date specified in any notice delivered pursuant hereto (regardless of whether such notice may
be revoked under Section 2.08(b) and is revoked in accordance therewith) or (d) the assignment of
any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Borrower pursuant to Section 2.17, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense attributable to such event (it being
understood and agreed that such loss, cost and expense shall not include the Applicable Rate that
would have been applicable to such Loan for the period from the date of such event to the last day
of the then current






24









 







Interest Period therefor). Such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest
which would have accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan (but not including the Applicable
Rate applicable thereto), for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which
such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A certificate of any
Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.




          Section 2.15 Taxes. (a) All payments made by or on behalf of the Borrower under this Agreement or any other
Loan Document shall be made free and clear of, and without deduction or withholding for, any
Indemnified Taxes and Other Taxes; provided that if the Borrower shall be required to
deduct any Indemnified Taxes or 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 or Lender (as
the case may be) receives an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.




          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.




          (c) Whenever any Indemnified Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own account or for the
account of the relevant Lender, as the case may be, a copy of an original official receipt received
by the Borrower showing payment thereof.




          (d) The Borrower shall indemnify the Administrative Agent and the Lenders for the full amount
of any Indemnified Taxes that are paid or payable by the Administrative Agent or Lenders, as
applicable in connection with any Loan Document (including amounts payable under this Section) and
any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The
indemnity under this paragraph (d) shall be paid within 30 days after the Administrative Agent or
Lender delivers to the Borrower a certificate stating the amount of Indemnified Taxes so payable by
such Person. Such certificate shall be conclusive as to the amount so payable absent manifest
error. Any Lender delivering such certificate to the Borrower shall deliver a copy of such
certificate to the Administrative Agent.




          (e) Each Lender shall severally indemnify the Administrative Agent and the Borrower for the
full amount of any Taxes, in the case of the Administrative Agent, or any Excluded Taxes, in the
case of the Borrower, attributable to such Lender that are paid or payable by the Administrative
Agent or the Borrower in connection with any Loan Document and any reasonable expenses arising
therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. The indemnity under this paragraph (e) shall be
paid within 30 days after the Administrative Agent or the Borrower delivers to the applicable
Lender a certificate stating the amount of Taxes, in the case of the Administrative Agent, or
Excluded






25









 







Taxes, in the case of the Borrower, so payable by the Administrative Agent or the Borrower, as
applicable. Such certificate shall be conclusive of the amount so payable absent manifest error.




          (f) (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable
withholding tax with respect to any payments under any Loan Document shall deliver to the Borrower
and the Administrative Agent, at the time or times prescribed by law or reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed documentation reasonably
requested by the Borrower or the Administrative Agent as will permit such payments to be made
without, 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 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. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation (other than such
documentation set forth below in this paragraph (f)) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any
material unreimbursed cost or expense or would materially prejudice the legal or commercial
position of such Lender. Upon the reasonable request of the Borrower or the Administrative Agent,
any Lender shall update any form or certification previously delivered pursuant to this Section.
If any form or certification previously delivered pursuant to this Section expires or becomes
obsolete or inaccurate in any respect with respect to a Lender, such Lender shall promptly notify
the Borrower and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy
and update the form or certification if it is legally eligible to do so.





          (ii) Without limiting the generality of the foregoing, each Lender shall, if it is
legally eligible to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies reasonably requested by the Borrower and the Administrative Agent) on or
prior to the date on which such Lender becomes a party hereto, duly completed and executed
copies of whichever of the following is applicable:




     (A) in the case of a Lender that is a U.S. Person, IRS Form W-9;




     (B) in the case of Non-U.S. Lender claiming the benefits of an income
tax treaty to which the United States is a party (1) with respect to
payments of interest under any Loan Document, IRS Form W-8BEN establishing
an exemption from, or reduction of, U.S. federal withholding tax pursuant to
the “interest” article of such tax treaty and (2) with respect to any other
applicable payments under any Loan Document, IRS Form W-8BEN establishing an
exemption from U.S. federal withholding tax pursuant to the “business
profits” or “other income” article of such tax treaty;




     (C) in the case of a Non-U.S. Lender for whom payments under any Loan
Document constitute income that is effectively connected with such Lender’s
conduct of a trade or business in the United States, IRS Form W-8ECI;




     (D) in the case of a Non-U.S. Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Code both (1)
IRS Form W-8BEN and (2) a certificate substantially in the form of Exhibit B
to the effect that such 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, (c) a
“controlled foreign corporation” described in Section 881(c)(3)(C) of the
Code and (d) conducting a



26









 






trade or business in the United States with which the relevant interest
payments are effectively connected;




     (E) in the case of a Non-U.S. Lender that is not the beneficial owner
of payments made under any Loan Document (including a partnership or a
participating Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the
relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this
paragraph (f)(ii) that would be required of each such beneficial owner or
partner of such partnership if such beneficial owner or partner were a
Lender; provided, however, that if the Lender is a partnership and
one or more of its partners are claiming the exemption for portfolio
interest under Section 881(c) of the Code, such Lender may provide a U.S.
Tax Certificate on behalf of such partners; or




     (F) any other form prescribed by law as a basis for claiming exemption
from, or a reduction of, U.S. federal withholding tax together with such
supplementary documentation necessary to enable the Borrower or the
Administrative Agent to determine the amount of Tax (if any) required by law
to be withheld.



          (g) Treatment of Certain Refunds. If the Administrative Agent or any Lender
determines, in its sole discretion, that it has received a refund of any Taxes as to which it has
been indemnified pursuant to this Section (including additional amounts paid by the Borrower
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 under this Section with respect to the Taxes giving rise to
such refund), net of all out-of-pocket expenses (including any Taxes) of the Administrative Agent
or such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund). The Borrower, upon the request of the Administrative Agent
or Lender, shall repay to the Administrative Agent or such Lender the amount paid to the
Administrative Agent or such Lender pursuant to the previous sentence (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) in the event the Administrative
Agent or Lender is required to repay such refund to such Governmental Authority. Notwithstanding
anything to the contrary in this paragraph, in no event will the Administrative Agent or any Lender
be required to pay any amount to the Borrower pursuant to this paragraph if, in the reasonable good
faith judgment of the Administrative Agent or such Lender, such payment would place the
Administrative Agent or such Lender in a less favorable position (on a net after-Tax basis) than
the Administrative Agent or such Lender would have been in if the indemnification payments or
additional amounts giving rise to such refund had never been paid. This paragraph shall not be
construed to require the Administrative Agent or any Lender 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.




          Section 2.16 Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a)
The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest or fees, or of amounts payable under Section 2.13, 2.14 or 2.15, or otherwise)
prior to 12:00 noon, New York City time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 270 Park Avenue, New York, New York, except that payments
pursuant to Sections 2.13, 2.14, 2.15 and 9.03 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall
be extended to the next succeeding Business Day, and, in the case of any payment accruing interest,






27









 







interest thereon shall be payable for the period of such extension. All payments hereunder
shall be made in Dollars.




          (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall
be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to such parties.




          (c) Each borrowing by the Borrower from the Lenders hereunder and any reduction of the
Commitments of the Lenders shall be made pro rata according to the respective
Commitments of the Lenders.




          (d) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts of the Loans then held by the Lenders. Amounts paid or prepaid on
account of the Loans may not be reborrowed.




          (e) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued
interest thereon than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the Loans of other
Lenders to the extent necessary 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 Loans; provided that (i) if any such participations are purchased and all
or any portion of the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement (as in effect from
time to time) or any payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans to any assignee or participant, other than to the Borrower or
its Subsidiaries (as to which the provisions of this paragraph 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 set-off 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.




          (f) 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
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 the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender 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 greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.




          (g) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.04(b), 2.16(f) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the






28









 







Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under
such Sections until all such unsatisfied obligations are fully paid.




          Section 2.17 Mitigation Obligations; Replacement of Lenders. (a)
If any Lender requests compensation under Section 2.13, 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 2.15, then such Lender shall, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to designate a
different lending office for funding or booking any Loans affected by such event, or to assign and
delegate its rights and obligations hereunder to another of its offices, branches or Affiliates, in
each case with the object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the reasonable judgment of such Lender, cause such Lender and
its lending office(s) to suffer no economic, legal or regulatory disadvantage; and provided
further that nothing in this Section shall affect or postpone any of the obligations of the
Borrower or the rights of any Lender pursuant to Section 2.13 or 2.15.




          (b) If any Lender requests compensation under Section 2.13, 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 2.15, or if any Lender does not consent to any proposed amendment, supplement,
modification, consent or waiver of any provision of this Agreement or any other Loan Document that
requires the consent of each of the Lenders or each of the Lenders affected thereby (so long as the
consent of the Required Lenders has been obtained), or if any Lender is a Defaulting Lender, 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 Section 9.04, except as provided below in this paragraph (b)), all
its interests, rights and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment);
provided that (i) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, 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), (ii) in the case of any such
assignment resulting from a claim for compensation under Section 2.13 or payments required to be
made pursuant to Section 2.15, such assignment will result in a reduction in such compensation or
payments, (iii) the Borrower shall be liable to such Lender under Section 2.14 if any Eurodollar
Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest
Period relating thereto, (iv) the assignee shall be reasonably satisfactory to the Administrative
Agent, (v) any such replacement shall not be deemed to be a waiver of any rights that the Borrower,
the Administrative Agent or any other Lender shall have against such Lender and (vi) until such
time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if
any) required pursuant to Section 2.13 or 2.15 as the case may be. A Lender shall not be required
to make any such assignment and 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. Each party hereto agrees that an assignment required pursuant to this
paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the
Administrative Agent and the assignee and that the Lender required to make such assignment need not
be a party thereto.




          Section 2.18 Defaulting Lenders. Notwithstanding any
provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:





          (a) fees shall cease to accrue on the Available Commitment of such Defaulting Lender
pursuant to Section 2.10(a) or 2.10(b);



29









 






          (b) the Commitment and the outstanding aggregate principal amount of the Loan of such
Defaulting Lender shall not be included in determining whether the Required Lenders have
taken or may take any action hereunder (including any consent to any amendment or waiver
pursuant to Section 9.02); and




          (c) any amount payable to such Defaulting Lender hereunder (whether on account of
principal, interest, fees or otherwise and including any amount that would otherwise be
payable to such Defaulting Lender pursuant to Section 2.16(e) but excluding Section
2.17(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the
Administrative Agent in a segregated account and, subject to any applicable requirements of
law, be applied at such time or times as may be determined by the Administrative Agent (i)
first, to the payment of any amounts owing by such Defaulting Lender to the Administrative
Agent hereunder, (ii) second, to the funding of any Loan in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent, (iii) third, if so determined by the Administrative
Agent and the Borrower, held in such account as cash collateral until the Commitment
Expiration Date for future funding obligations of the Defaulting Lender in respect of any
Loans under this Agreement and (iv) fourth, to such Defaulting Lender or as otherwise
directed by a court of competent jurisdiction.



Article III




REPRESENTATIONS AND WARRANTIES



     The Borrower hereby represents and warrants, on the Closing Date and on each date thereafter
on which a Borrowing is made, to the Administrative Agent and each Lender as follows:



          Section 3.01 Financial Statements; No Material Adverse Change. (a)
As of the date hereof, the Borrower has furnished to the Lenders the audited
consolidated balance sheet of the Borrower as at September 30, 2009 and the related consolidated
income statement and consolidated statement of shareholders’ equity and cash flows for the fiscal
year ended on such date, reported on by and accompanied by an unqualified report from KPMG LLP,
which financial statements present fairly, in all material respects, the consolidated financial
position of the Borrower as at such date, and the consolidated results of its operations and its
consolidated cash flows for the fiscal year then ended. As of the date hereof, the Borrower has
furnished to the Lenders the unaudited consolidated balance sheet of the Borrower as at December
31, 2009, and the related unaudited consolidated income statement and consolidated statement of
cash flows for the three-month period ended on such date, which financial statements present
fairly, in all material respects, the consolidated financial position of the Borrower as at such
date, and the consolidated results of its operations and its consolidated cash flows for the
three-month period then ended (subject to normal year-end audit adjustments and the absence of
certain footnotes). All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants or otherwise disclosed
therein).




          (b) As of the Closing Date, the Borrower has furnished to the Lenders (i) the unaudited pro
forma consolidated balance sheet of the Borrower as at the end of the most recent fiscal year of
the Borrower ended at least 90 days prior to the Closing Date and (ii) unaudited pro forma
consolidated income statement of the Borrower (x) for the most recent fiscal year of the Borrower
ended at least 90 days prior to the Closing Date and (y) for the most recent fiscal quarter of the
Borrower ended at least 45 days prior to the Closing Date, each of which has been prepared giving
effect (as if such events had occurred on such date or the first day of such period, as applicable)
to (A) the consummation of the Offer, the Merger and the Target Refinancing, (B) the Loans to be
made and the use of proceeds thereof






30









 







and (C) the payment of fees and expenses in connection with the foregoing. Such pro forma
financial statements have each been prepared based on the best information available to the
Borrower as of the date of delivery thereof and, to the extent practicable, in accordance with
Regulation S-X (it being acknowledged that the Borrower is limited to publicly available
information relating to the Target and its Subsidiaries).




          (c) As of the Closing Date, (i) there has not occurred any event, change, occurrence or
circumstance that, individually or in the aggregate, has had or would reasonably be expected to
have a material adverse effect on the business, operation, property or financial condition of the
Borrower and its Subsidiaries (other than the Target and its Subsidiaries), taken as a whole, since
September 30, 2009 and (ii) no change has occurred or been threatened (and no development has
occurred or been threatened that involves a prospective change) in the business, assets,
liabilities, financial condition, capitalization, operations, results of operations or prospects of
the Target or any of its Affiliates that, in the Borrower’s judgment, is or may be materially
adverse to the Target or any of its Affiliates (it being agreed that this clause (ii) shall be
automatically amended to conform to the condition (or, if applicable, the representation) relating
to the absence of “material adverse effect” (or equivalent concept) on the Target and its
Affiliates set forth in the Offer Documents (or, if applicable, the Merger Agreement) as in effect
on the Closing Date).




          Section 3.02 Litigation. There is no action, suit or administrative proceeding, to the knowledge of the Borrower
after due inquiry, pending or threatened against the Borrower or any of its Subsidiaries as of the
Closing Date which, in the opinion of the Borrower, involves any substantial risk of any Material
Adverse Effect.




          Section 3.03 Due Organization. The Borrower is a corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization.




          Section 3.04 Consents and Approvals. The Borrower has obtained the consents and approvals of the Governmental Authorities
necessary for consummation of the Transactions and its execution and performance of this Agreement
and such consents and approvals are in full force and effect, other than any such consents and
approvals with respect to which the failure to obtain or to keep in full force and effect would not
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.




          Section 3.05 Corporate Power, Authorization and Enforceability. The Borrower has taken all necessary corporate or other organizational action to authorize
its execution, delivery and performance of this Agreement. This Agreement has been duly executed
and delivered by the Borrower and constitutes, and the other Loan Documents when executed and
delivered by the Borrower will constitute, valid and legally binding obligations of the Borrower,
subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting
creditors’ rights generally and equitable principles of general application (regardless of whether
enforcement is sought in a proceeding in equity or at law).




          Section 3.06 ERISA. The Borrower and each of its ERISA Affiliates is in compliance with all applicable
provisions and requirements of ERISA and the provisions of the Code and the regulations and
published interpretations thereunder with respect to any Plan for which the Borrower is the plan
sponsor or a contributing employer, and the Borrower is not subject to any material liability,
penalty, excise tax or lien arising under ERISA or under the Code with respect to any Plan which is
sponsored by the Borrower or any Subsidiary (or to which the Borrower or any Subsidiary is
obligated to contribute), except to the extent such noncompliance, liability, penalty, excise tax
or lien would not have a Material Adverse Effect; and no ERISA Event has occurred or would
reasonably be expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to






31









 







occur, would reasonably be expected to, individually or in the aggregate, result in a Material
Adverse Effect.




          Section 3.07 No Conflict. Except as set forth on Schedule 3.07, neither the execution and delivery by the Borrower of
the Loan Documents, nor the consummation of the transactions therein contemplated, nor compliance
by the Borrower with the provisions thereof will violate (a) to the best of the Borrower’s
knowledge after due inquiry, any material law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of its Subsidiaries, (b) the Borrower’s or any
Subsidiary’s articles or certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by-laws, or operating or other management
agreement, as the case may be, or (c) to the best of the Borrower’s knowledge after due inquiry,
the provisions of any material indenture, instrument or agreement to which the Borrower or any of
its Subsidiaries is a party or is subject, or by which it, or its property, is bound, or conflict
with or constitute a default thereunder, or result in, or require, the creation or imposition of
any lien in, of or on the property of the Borrower or a Subsidiary pursuant to the terms of any
such indenture, instrument or agreement (other than any such indenture, instrument or agreement of
the Target or any of its Subsidiaries in effect as of the Closing Date), except, in the case of
each of clauses (a) and (c), to the extent any of the foregoing would not reasonably be expected to
result in a Material Adverse Effect.




          Section 3.08 No Default. Each of the Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property (other than any indenture,
agreement or other instrument of the Target or any of its Subsidiaries in effect as of the Closing
Date), except where the failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is continuing.




          Section 3.09 Payment of Taxes. Each of the Borrower and its Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed by it and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside
on its books adequate reserves in accordance with GAAP or (b) to the extent that the failure to do
so would not reasonably be expected to result in a Material Adverse Effect.




          Section 3.10 Investment Company Status. Neither the Borrower nor any of its Subsidiaries is an “investment company” as defined in,
or subject to regulation under, the Investment Company Act of 1940.




          Section 3.11 Environmental Matters. Except with respect to any matters that, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (a) has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law, (b) has become
subject to any Environmental Liability, (c) has received notice of any claim with respect to any
Environmental Liability or (d) knows of any basis for any Environmental Liability.




          Section 3.12 Disclosure. (a) All written information and all oral communications made by the Borrower in Lender
meetings and due diligence sessions held in connection with the syndication of the credit facility
established hereunder, taken as a whole, other than any projections (the “Projections”) and
information of a general economic or industry nature, that were made available by the Borrower or
any of its representatives to the Lead Arranger, the other Arrangers or the Lenders were, when
furnished, complete and correct in all material respects and did not, when furnished, contain any
untrue statement of a material fact or omit to state a material fact necessary in order to make the






32









 







statements contained therein not materially misleading in light of the circumstances under
which such statements were made (with the Borrower making such representation and warranty, insofar
as it concerns information and communications relating to the Target and its Affiliates, to the
best knowledge of the Borrower) and (b) the Projections that were made available by the Borrower or
any of its representatives to the Lead Arranger, the other Arrangers or the Lenders were prepared
in good faith based upon assumptions believed by the Borrower to be reasonable at the time made and
at the time the related Projections were made available to the Lead Arranger, the other Arrangers
or the Lenders (it being understood that (i) the Projections and the Borrower’s assumptions with
respect thereto, in each case insofar as they relate to the Target and its Affiliates, were based
on information available to the Borrower with respect to the Target and its Subsidiaries and that
such information may have been limited, (ii) the Projections are subject to significant
uncertainties, (iii) the variances between actual results and projected results may be material and
(iv) no assurances were given that any projections will be realized).




Article IV




CONDITIONS OF CREDIT



          Section 4.01 Conditions to Effective Date. The effectiveness of this Agreement shall be subject to satisfaction (or waiver in
accordance with Section 9.02) of the following conditions precedent (the first date on which such
conditions are satisfied or waived, the “Effective Date”):




          (a) Credit Agreement. The Administrative Agent shall have received from each party
hereto a counterpart of this Agreement signed on behalf of such party.




          (b) Corporate Action. The Administrative Agent shall have received on or before the
Effective Date certified copies of all corporate action taken by the Borrower to authorize the
execution and delivery of this Agreement and, if required, the Notes and such other documents
relating to such authorization as the Administrative Agent shall reasonably require.




          (c) Organizational Documents; Good Standing Certificates. The Administrative Agent
shall have received copies of the articles or certificate of incorporation of the Borrower,
together with all amendments, and a certificate of good standing, each certified as of a recent
date by the appropriate governmental officer in its jurisdiction of incorporation.




          (d) Patriot Act Information. No later than five Business Days prior to the Effective
Date, the Administrative Agent and the Lenders shall have received any information required by the
Patriot Act or necessary for the Administrative Agent or any Lender to verify the identity of the
Borrower as required by the Patriot Act or other “know your customer” and anti-money laundering
rules and regulations, provided that such information shall have been requested by the
Administrative Agent and the Lenders reasonably in advance of the Effective Date.



The Administrative Agent shall notify the Borrower and the Lenders of the occurrence of the
Effective Date, and such notice shall be conclusive and binding.




          Section 4.02 Conditions to Initial Borrowing. The obligation of each Lender to make its initial Loan is subject to satisfaction (or
waiver in accordance with Section 9.02) of the following conditions precedent (the first date on
which such conditions are satisfied or waived, the “Closing Date”, which date shall in no
event be later than February 4, 2011):




          (a) Notes. The Administrative Agent shall have received from the Borrower a
counterpart of any Notes requested by the Lenders reasonably in advance of the Closing Date.







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          (b) Officer’s Certificate. The Administrative Agent shall have received a certificate
dated the Closing Date and signed by the Treasurer or a Vice President of the Borrower to the
effect that each of the representations and warranties made by the Borrower in Article III hereof
is true and correct in all material respects on and as of the Closing Date, both before and after
giving effect to the Borrowings requested to be made on the Closing Date, except for such
representations and warranties that specifically refer to an earlier date, which shall be true and
correct in all material respects as of such earlier date.




          (c) Financial Statements. (i) The Administrative Agent shall have received the
unaudited pro forma consolidated balance sheet and unaudited pro forma consolidated income
statement of the Borrower referred to in Section 3.01(b).





               (ii) The Administrative Agent shall have received, to the extent available to the Borrower,
such audited or unaudited consolidated financial statements of the Target as would be necessary to
comply with Regulation S-X in a registered offering of securities of the Borrower and all other
financial statements for completed or pending acquisitions as are available to the Borrower and may
be required under Regulation S-X in a registered offering of securities of the Borrower.



          (d) The Offer. If the Merger Agreement has not been executed prior to the Closing
Date, the Offer shall be consummated (i) substantially concurrently with the making of the initial
Loans and (ii) in accordance with the Offer Documents, which Offer Documents shall be reasonably
acceptable to the Arrangers (it being understood and agreed that all Offer Documents filed with the
Securities and Exchange Commission prior to the date hereof shall be deemed reasonably acceptable
to the Arrangers). The Administrative Agent shall have received copies of all amendments,
modifications, waivers and consents under the Offer Documents and no such amendment, modification,
waiver or consent shall have been materially adverse to the interests of the Arrangers or the
Lenders without the prior written consent of the Arrangers (it being understood and agreed that
amendments, modifications, waivers and consents under the Offer Documents effected prior to the
date hereof shall be deemed not to be materially adverse to the interests of the Arrangers or the
Lenders).




          (e) The Merger. If the Merger Agreement has been executed prior to the Closing Date,
(i) the Merger (if the Merger Agreement provides for a one-step merger of the Target with Offerco)
or the Offer (if the Merger Agreement provides for the consummation of the Offer, followed by the
consummation of the Merger) shall be consummated (A) substantially concurrently with the making of
the initial Loans and (B) in accordance with the Merger Documents, which Merger Documents shall be
reasonably acceptable to the Arrangers. The Administrative Agent shall have received all Merger
Documents, if any, executed prior to the Closing Date. The Administrative Agent shall have
received copies of all amendments, modifications, waivers and consents to any such Merger
Documents, and no such amendment, modification, waiver or consent shall have been materially
adverse to the interests of the Arrangers or the Lenders without the prior written consent of the
Arrangers.




          (f) Target Ownership. After giving effect to the consummation of the Offer or the
Merger on the Closing Date, the Borrower shall own a majority of the shares of the common stock of
the Target on a fully diluted basis.




          (g) Legal Opinion. The Administrative Agent shall have received a legal opinion dated
the Closing Date and addressed to the Administrative Agent and the Lenders in form and substance
reasonably satisfactory to the Administrative Agent, covering such matters relating to the Borrower
and this Agreement as the Administrative Agent shall reasonably request.







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          (h) Solvency Certificate. The Administrative Agent shall have received a solvency
certificate from the chief financial officer of the Borrower in a form reasonably satisfactory to
the Administrative Agent.




          (i) Ratings. The Borrower shall, as of the Closing Date, and taking into account the
Transactions, have (i) an unsecured long-term obligations rating of at least “Baa3” (with stable
(or better) outlook) from Moody’s and (ii) a long-term issuer credit rating of at least “BBB-”
(with stable (or better) outlook) from S&P, which ratings and outlooks shall in each case have been
(A) issued within 60 days prior to the Closing Date or (B) reaffirmed within seven days prior to
the Closing Date. If the rating system of S&P or Moody’s shall change, the Borrower and the
Lenders shall negotiate in good faith to amend this condition to reflect such changed rating
system.




          (j) Fees and Expenses. The Administrative Agent, the Arrangers and the Lenders shall
have received all fees and expenses required to be paid by the Borrower on or prior to the Closing
Date pursuant to the Commitment Letter, the Bookrunner Fee Letter or the Loan Documents to the
extent, in the case of expenses, the invoice relating thereto is received by the Borrower by a
reasonable time prior to the Closing Date.




          (k) No Default. No Default or Event of Default (as defined therein) shall have
occurred and be continuing, or shall occur as a result of the consummation of the Offer or the
Merger and the financings thereof, under the Existing Agreement or any refinancing or replacement
thereof.



The Administrative Agent shall notify the Borrower and the Lenders of the occurrence of the Closing
Date, and such notice shall be conclusive and binding.




          Section 4.03 Conditions to All Borrowings. The obligation of each Lender to make each Loan to be made by it hereunder on the occasion
of any Borrowing (including its initial Loan on the Closing Date) is subject to the satisfaction
(or waiver in accordance with Section 9.02) of the following conditions precedent:




          (a) Representations and Warranties. Each of the representations and warranties made
by the Borrower in Article III (other than, in the case of any Loan to be made after the Closing
Date, the representations and warranties set forth in Sections 3.01(c) and 3.02) shall be true and
correct in all material respects on and as of the date of such Borrowing as if made on and as of
such date, both immediately before and immediately after giving effect to such Borrowing;
provided that, to the extent that such representations and warranties specifically refer to
an earlier date, they shall be true and correct in all material respects as of such earlier date.




          (b) No Default. No Default or Event of Default shall have occurred and be continuing
on and as of the date of such Borrowing, both immediately before and immediately after giving
effect to such Borrowing.



It is further understood and agreed that notice by the Borrower requesting any Borrowing shall
constitute a certification by the Borrower that the conditions precedent set forth in this Section
4.03 are satisfied on the date of such Borrowing.







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Article V




AFFIRMATIVE COVENANTS



          From and including the Closing Date (or, with respect to Sections 5.01, 5.02 and 5.08 from and
including the date hereof) and until payment in full of all of the Loans and all interest and fees
due and payable hereunder and termination of all Commitments, the Borrower agrees that:




          Section 5.01 Financial Statements. The Borrower will furnish to the Administrative Agent:




          (a) within 45 days after the close of each quarter, except the last quarter, of each fiscal
year, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such quarter, unaudited consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the Borrower’s previous fiscal year and ending
with the end of such quarter, as such are filed with the Securities and Exchange Commission;




          (b) within 90 days after the close of each fiscal year, financial statements filed with the
Securities and Exchange Commission consisting of a consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such fiscal year and consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for such fiscal year, which will be certified by
independent certified public accountants of recognized standing; and




          (c) concurrently with the delivery of the financial statements referred to in clauses (a) and
(b) above, a certificate of a Financial Officer of the Borrower (x) stating that, to the knowledge
of such officer (after due inquiry), as of the date thereof no Default or Event of Default has
occurred and is continuing (or if a Default or an Event of Default has occurred and is continuing,
specifying in detail the nature and period of the existence thereof and any action with respect
thereto taken or contemplated to be taken by the Borrower), (y) commencing with the delivery of
financial statements for the first fiscal quarter that shall have commenced after the Closing Date,
stating in reasonable detail the information and calculations necessary to establish compliance
with Section 6.01 and (z) stating whether any change in GAAP or in the application thereof that
could reasonably be expected to affect in any material respect the calculation of the Leverage
Ratio has occurred since the date of the audited financial statements most recently theretofore
delivered under clause (b) above (or, prior to the first such delivery, referred to in Section
3.01(a)) and, if any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate.



Any financial statement or other material required to be delivered pursuant to this Section 5.01
shall be deemed to have been furnished to each of the Administrative Agent and the Lenders on the
date that such financial statement or other material is publicly accessible on the Securities and
Exchange Commission’s website at www.sec.gov.




          Section 5.02 Notices of Material Events. The Borrower will furnish to the Administrative Agent the following:




          (a) written notice (within five days after a Financial Officer of the Borrower obtains
knowledge thereof) of the occurrence of any Default or Event of Default which in either case is
continuing;




          (b) written notice (within five days after a Financial Officer of the Borrower obtains
knowledge thereof) of the filing or commencement of any action, suit or proceeding by or before any





36












 




arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate
thereof that, if adversely determined, would reasonably be expected to result in a Material Adverse
Effect;




          (c) prompt written notice of the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, would reasonably be expected to result in a Material
Adverse Effect;




          (d) prompt written notice of any other development that results in, or would reasonably be
expected to result in, a Material Adverse Effect;




          (e) prompt written notice of an announcement by Moody’s or S&P of a change in the unsecured
long-term obligations of the Borrower or the long-term issuer credit rating of the Borrower,
respectively, and the resulting rating; and




          (f) promptly following a request therefor, such other information in confidence respecting the
financial condition and affairs of the Borrower and its Subsidiaries (or the Target and its
Subsidiaries, to the extent such information is available to the Borrower) as the Administrative
Agent or any Lender (through the Administrative Agent) may from time to time reasonably request
(subject to any legal or confidentiality restriction on the delivery of such requested
information).




          Section 5.03 Maintenance of Insurance. The Borrower will maintain, and cause each Subsidiary to maintain, insurance against risks
of fire and other casualties with good and responsible insurance companies upon its properties of
an insurable nature which are owned and acquired by it from time to time, in accordance with its
normal insurance policies and practices.




          Section 5.04 Payment of Taxes. The Borrower will pay and discharge, and cause each Subsidiary to pay and discharge, all
Taxes upon it or against its properties prior to the date on which penalties attach thereto, unless
and to the extent that (a) the same shall be contested in good faith and by proper proceedings or
(b) the failure to do so would not reasonably be expected to result in a Material Adverse Effect.




          Section 5.05 Maintenance of Corporate Existence. The Borrower will do or cause to be done all things necessary to preserve, renew and keep
in full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises of the Borrower and its Subsidiaries material to the conduct of their business taken as
a whole; provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution not prohibited by Section 6.03.




          Section 5.06 Maintenance of Property. The Borrower will keep and maintain, and cause each of its Subsidiaries to keep and
maintain, all property material to the conduct of the business of the Borrower and its Subsidiaries
taken as a whole in good working order and condition, ordinary wear and tear excepted.




          Section 5.07 Compliance with Laws. The Borrower will comply, and cause each of its Subsidiaries to comply, with all laws
(including ERISA and Environmental Laws), rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so, individually or
in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.




          Section 5.08 Books and Records; Inspections. The Borrower will keep, and cause each of its Material Subsidiaries to keep, in all
material respects, proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and activities as necessary for
the preparation of its consolidated financial statements in accordance with




37









 




GAAP. The Borrower will, and will cause each of its Material Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at such reasonable times
(during normal business hours) and as often as reasonably requested; provided that, so long
as no Default or Event of Default shall have occurred and be continuing, (a) only the
Administrative Agent shall exercise the rights of the Administrative Agent and the Lenders under
this Section and (b) the Administrative Agent shall not exercise such rights more frequently than
once per calendar year.




          Section 5.09 Use of Proceeds. The Borrower will use the proceeds of the Loans solely (a) to finance payments to the
equityholders of the Target pursuant to the Offer and in connection with the Merger, (b) to effect
the Target Refinancing, (c) to pay fees and expenses related to the Transactions and (d) for
working capital and other general corporate purposes of the Borrower and its Subsidiaries. The
Borrower shall not use any part of the proceeds of any Loans for any purpose that violates the
provisions of the Regulations of the Board.




Article VI




NEGATIVE COVENANTS



          From and including the Closing Date and until payment in full of all of the Loans and all
interest and fees due and payable hereunder and the termination of all of the Commitments, the
Borrower agrees that it will not:




          Section 6.01 Leverage Ratio. Permit the Leverage Ratio as of the last day of any Test Period, commencing with the Test
Period ending with the first fiscal quarter that shall have commenced after the Closing Date, to
exceed 4.8 to 1.00.




          Section 6.02 Liens. Create, incur, assume or suffer to exist, or cause or permit any Subsidiary to create,
incur, assume or suffer to exist, any Lien on any property or asset now owned or hereafter acquired
by it (other than Unrestricted Margin Stock), except:




          (a) Liens created under the Loan Documents;




          (b) Permitted Encumbrances;




          (c) any Lien on any property or asset of the Borrower or any Subsidiary existing on the
Effective Date and, in the case of such Liens on any property or asset of the Borrower or any
Material Subsidiary, set forth in Schedule 6.02, and any extension, renewal or replacement thereof;
provided that (i) such Lien shall not apply to any other property or asset of the Borrower
or any Subsidiary (other than improvements or accessions to the applicable property or assets or
proceeds therefrom) and (ii) such Lien shall secure only those obligations which it secures on the
Effective Date and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;




          (d) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person (including the Target
and its Subsidiaries) that becomes a Subsidiary (or of any Person not previously a Subsidiary that
is merged or
consolidated with or into a Subsidiary) after the Effective Date prior to the time such Person
becomes a Subsidiary (or is so merged or consolidated), and any extension, renewal or replacement
thereof; provided that (i) such Lien is not created (in the case of the Target or any of
its Subsidiaries, with the consent of the Borrower) in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary or such merger or consolidation (or, in the case
of the Target and its Subsidiaries, in






38









 







contemplation of or in connection with the Merger), as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary (other than improvements or
accessions to the applicable property or assets or proceeds therefrom) and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition or the date such
Person becomes a Subsidiary (or is so merged or consolidated), as the case may be, and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount thereof;




          (e) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any
Subsidiary; provided that (i) in the case of Liens on assets of any Subsidiary, such Liens
secure Indebtedness permitted by Section 6.04 and obligations relating thereto not constituting
Indebtedness, (ii) such Liens and the Indebtedness secured thereby are incurred prior to or within
360 days after such acquisition or the completion of such construction or improvement, (iii) the
principal amount of Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such Liens shall not apply to any
other property or assets of the Borrower or any Subsidiary; provided further that
in the event purchase money obligations are owed to any Person with respect to financing of more
than one purchase of any fixed or capital assets, such Liens may secure all such purchase money
obligations and may apply to all such fixed or capital assets financed by such Person;




          (f) Liens in favor of any Governmental Authority to secure partial, progress, advance or other
payments or obligations pursuant to any contract or statute, including Liens to secure Indebtedness
of any pollution control or industrial revenue bonds, or to secure any Indebtedness incurred for
the purpose of financing all or any part of the purchase price or the cost of constructing or
improving the property subject to such Liens;




          (g) Liens in favor of any customer arising in respect of partial, progress, advance or other
payments made by or on behalf of such customer for goods produced for or services rendered to such
customer in the ordinary course of business;




          (h) Liens securing Indebtedness or other obligations not exceeding $200,000,000 in the
aggregate at any time outstanding;




          (i) Liens securing Limited Recourse Debt of any Project Finance Company;




          (j) Liens on the proceeds of issuances of any pollution control or industrial revenue bonds by
the Borrower and its Subsidiaries required to be held in escrow pursuant to the terms thereof;




          (k) Liens securing obligations under Swap Agreements entered into in the ordinary course of
business; and




          (l) Liens created in connection with securitizations of receivables of the Borrower or any of
its Subsidiaries; provided that such Liens apply solely to the receivables and interests
therein that are the subject of such securitizations and such other assets as are customarily
subject to such Liens in securitization transactions of the same type.




          Section 6.03 Fundamental Changes. (a) Merge into or consolidate with, any other Person, or permit any other Person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction
or in a series of transactions) all or substantially all of its assets (other than Unrestricted
Margin Stock), or all or substantially all of the stock of its Subsidiaries (other than
Unrestricted Margin Stock) (in each case,
whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Default shall




39









 




have occurred and be continuing, any Person may merge into the Borrower in a transaction in which
the Borrower is the surviving corporation; or




          (b) Engage, or permit any of its Subsidiaries to engage, in any business, to the extent
material to the Borrower and its Subsidiaries as a whole, other than businesses of the type
conducted by the Borrower and its Subsidiaries and the Target and its Subsidiaries on the Effective
Date and businesses incidental or reasonably related thereto, or any business or activity that is
reasonably similar or complementary thereto or a reasonable extension, development or expansion
thereof.




          Section 6.04 Subsidiary Indebtedness. Permit any of its Subsidiaries to create, incur, assume or permit to exist any
Indebtedness, except:




          (a) Indebtedness of any Subsidiary outstanding on the Effective Date, which Indebtedness (in
the case of any item of Indebtedness in a principal amount in excess of $50,000,000) is described
on Schedule 6.04, and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;




          (b) Indebtedness of any Subsidiary to the Borrower or any other Subsidiary, and any Guarantee
by any Subsidiary of any Indebtedness of any other Subsidiary;




          (c) any Guarantee by any Subsidiary of Indebtedness of the Borrower, provided that
such Subsidiary has Guaranteed the Obligations under a Guarantee in form and substance reasonably
satisfactory to the Administrative Agent (which Guarantee of the Obligations shall not be more
restrictive or burdensome than such other Guarantee (and, in the event such other Guarantee is
subordinated to any other obligations, may be subordinated to such other obligations on
substantially similar terms) and shall provide for an automatic release thereof upon release of
such other Guarantee);




          (d) Indebtedness of any Subsidiary incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and refinancings, extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding principal amount
thereof; provided that such Indebtedness is incurred prior to or within 360 days after such
acquisition or the completion of such construction or improvement;




          (e) Indebtedness of any Person (including the Target and its Subsidiaries) that becomes a
Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or
into a Subsidiary) after the Effective Date, or Indebtedness of any Person that is assumed by any
Subsidiary in connection with an acquisition of assets by such Subsidiary after the Effective Date
(so long as such assumed Indebtedness encumbers such assets), provided that such
Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated)
or such assets are acquired and is not created (in the case of the Target or any of its
Subsidiaries, with the consent of the Borrower) in contemplation of or in connection with such
Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired, and
extensions, renewals and replacements thereof that do not increase the outstanding principal amount
thereof;




          (f) Indebtedness of any Subsidiary (i) as an account party in respect of trade letters of
credit or letters of credit of the type referred to in the definition of the term “Permitted
Encumbrances” or (ii) to the extent arising in connection with any Permitted Encumbrances or any
Lien permitted pursuant to Section 6.02(f) or (g);




40









 





          (g) Indebtedness owed in respect of any overdrafts and related liabilities arising from
treasury, depository and cash management services or in connection with any automated
clearing-house transfers of funds; provided that such Indebtedness shall be repaid in full
within five Business Days of the incurrence thereof;




          (h) Limited Recourse Debt of any Project Finance Subsidiary;




          (i) Indebtedness of Foreign Subsidiaries incurred to finance the working capital needs of
Foreign Subsidiaries;




          (j) any other Indebtedness of any Subsidiary; provided that the aggregate principal
amount of such other Indebtedness of all the Subsidiaries outstanding at any time does not exceed
$200,000,000; and




          (k) Indebtedness incurred in connection with the securitization of receivables of the Borrower
or any of its Subsidiaries.




Article VII




EVENTS OF DEFAULT



          Section 7.01 Events of Default. An “Event of Default” shall mean the occurrence or existence of one or more of the
following events or conditions:




          (a) default in payment of principal on any Loan or Note when due;




          (b) default in payment of interest, any fee or any other amount provided for herein, and such
default shall continue unremedied for five Business Days after written notice thereof shall have
been received by the Borrower from the Administrative Agent or any Lender;




          (c) any representation or warranty made by the Borrower herein or in any certificate or notice
furnished by the Borrower hereunder shall prove to have been, when made, erroneous in any material
respect, provided, however, that if capable of remedy, the Borrower shall have
twenty days after the Borrower has knowledge of such fact to remedy the underlying facts resulting
in such representation, warranty, certificate or notice being erroneous as above described;




          (d) (i) default in any material respect by the Borrower in the performance of any covenant or
agreement set forth in Article VI or (ii) default in any material respect by the Borrower in the
performance of any other covenant or agreement set forth in this Agreement, other than any such
covenant or agreement referred to in clauses (a) through (c) above or clause (d)(i) above, and, in
the case of any such default referred to in this clause (ii), (A) such default (other than a
default in the performance of Section 5.02(a) or 5.09) shall continue unremedied for 20 days after
written notice thereof shall have been received by the Borrower from the Administrative Agent or
(B) in the case of a default in the performance of Section 5.02(a) or 5.09, such default shall have
continued unremedied for five days;




          (e) failure by the Borrower or any Subsidiary to pay any principal or interest (regardless of
amount) of or on Indebtedness for borrowed money (other than Limited Recourse Debt) in
excess of $125,000,000 when and as the same shall become due and payable beyond the applicable
grace period therefor;




          (f) any event or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity; provided that this clause (f) shall not apply to (i) secured
Indebtedness




41









 




that becomes due as a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness, (ii) any Indebtedness that becomes due as a result of a default under any
agreement with a Lender or an Affiliate of a Lender to the extent such default results from a sale,
pledge or other disposition of Unrestricted Margin Stock or (iii) any Indebtedness of the Target or
any of its Subsidiaries outstanding on the Closing Date that becomes due as a result of the
consummation of the Transactions to be consummated on such date;




          (g) a judgment or order for the payment of money in excess of $125,000,000 (net of any amounts
covered by a third-party insurer as to which such insurer has been notified of a potential claim
and does not dispute coverage) shall be rendered against the Borrower or any Material Subsidiary
and such judgment shall continued unsatisfied and unstayed for a period of 60 consecutive days
after the time period for appeal has expired;




          (h) a Change of Control shall have occurred;




          (i) the Borrower or any Material Subsidiary makes, or takes corporate or other organizational
action for, a general assignment for the benefit of creditors, or files a voluntary petition in
bankruptcy or a petition or answer seeking its reorganization or the readjustment of its
indebtedness or consents to or petitions for the appointment of a receiver, trustee or liquidator
of all or substantially all of its property or shall admit in writing its inability to, or
generally be unable to, pay its debts as such debts come due;




          (j) the commencement of a case or other proceeding, without the application or consent of the
Borrower or the applicable Material Subsidiary, in any court of competent jurisdiction, seeking the
liquidation, reorganization, dissolution, winding up, or composition or readjustment of debts, of
the Borrower or any Material Subsidiary, the appointment of a trustee, receiver, custodian,
liquidator or the like for the Borrower or any Material Subsidiary, or any similar action with
respect to the Borrower or any Material Subsidiary, under any laws relating to bankruptcy,
insolvency, reorganization, winding up or composition or adjustment of debts, and such case or
proceeding shall continue undismissed, or unstayed and in effect for a period of 90 consecutive
days or an order for relief in respect of the Borrower or any Material Subsidiary shall be entered
in an involuntary case under the Federal bankruptcy laws (as now or hereafter in effect) and such
order shall not be dismissed, discharged, stayed or restrained prior to the end of such 90 day
period or within 30 days of its entry, whichever is later; or




          (k) (i) an ERISA Event shall have occurred, (ii) a trustee shall be appointed by a United
States district court to administer any Plan, (iii) the PBGC shall institute proceedings to
terminate any Plan, (iv) the Borrower or any of its ERISA Affiliates shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability
to such Multiemployer Plan and such entity does not have reasonable grounds for contesting such
Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate
manner; or (v) any other event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (v) above, such event or condition, together with all other such
events or conditions, if any, would reasonably be expected to result in a Material Adverse Effect.




          Section 7.02 Consequences of an Event of Default.


          (a) If an Event of Default specified in subsections (a) through (h) or subsection (k) of
Section 7.01 shall occur or exist, then, in addition to all other rights and remedies which the
Administrative Agent or any Lender may have hereunder or under any other Loan Document, at law or
in equity, the Lenders shall be under no further obligation to make Loans and the Administrative
Agent may,
and upon the written request of the Required Lenders shall, by notice to the Borrower, from
time to time do any or all of the following:






42









 









               (i) declare the Commitments terminated, whereupon the Commitments will terminate;




               (ii) declare the unpaid principal amount of the Loans, interest accrued thereon and all
other Obligations to be immediately due and payable without presentment, demand, protest or
further notice of any kind, all of which are hereby waived.



          (b) If an Event of Default specified in subsections (i) or (j) of Section 7.01 shall occur or
exist, then, in addition to all other rights and remedies which the Administrative Agent or any
Lender may have hereunder or under any other Loan Document, at law or in equity, the Commitments
shall automatically terminate, the Lenders shall be under no further obligation to make Loans and
the unpaid principal amount of the Loans, interest accrued thereon and all other Obligations shall
become immediately due and payable without presentment, demand, protest or notice of any kind, all
of which are hereby waived.




Article VIII




THE ADMINISTRATIVE AGENT



     Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent 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, together with such actions and
powers as are reasonably incidental thereto.



     The bank 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 such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower, the Target or any of their respective
Subsidiaries or Affiliates as if it were not the Administrative Agent hereunder.



     The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower, the Target or any of their
Subsidiaries that is communicated to or obtained by the bank serving as 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 with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Lender, and 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, (ii) the
contents of any certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument
or document or (v) the



43









 




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 or to confirm
satisfaction of any condition that expressly refers to the matters described therein being
acceptable or satisfactory to the 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 believed by it to be genuine and to have been signed or sent 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 be made by the proper Person, and shall not incur any liability for relying
thereon. 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.



     The Administrative Agent may perform any and all its duties and exercise its rights and powers
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 its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
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.



     Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no 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, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder. 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 Administrative Agent’s resignation hereunder, the provisions of this Article
and Section 9.03 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 it was acting as Administrative Agent.



     Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall 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 related agreement or any document furnished hereunder or thereunder.



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Article IX




MISCELLANEOUS



          Section 9.01 Notices. (a) Except in the case of notices and other communications expressly permitted to be given
by telephone (and subject to paragraph (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 fax, as follows:





               (i) if to the Borrower, to it at Air Products and Chemicals, Inc., 7201 Hamilton
Boulevard, Allentown, Pennsylvania 18195-1501, Attention of Corporate Treasurer (Fax No.
(610) 481-4165);




               (ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, 1111 Fannin, 10th Floor, Houston, Texas 77002, Attention of Leslie Hill (Fax
No. (713) 427-6307), with a copy to JPMorgan Chase Bank, N.A., 383 Madison Avenue, 24th
Floor, New York, New York 10017, Attention of Stacey Haimes (Fax No. 212-270-5100); and




               (iii) if to any other Lender, to it at its address (or fax number) set forth in its
Administrative Questionnaire.



          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. 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.




          (c) Any party hereto may change its address or fax number for notices and other communications
hereunder by written notice to the other parties hereto. All notices and other communications
given to any party hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt.




          Section 9.02 Waivers; Amendments. (a) No failure or delay by the Administrative Agent or any Lender in exercising any right
or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent and the Lenders hereunder are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making of a Loan shall not be
construed as a waiver of any Default, regardless of whether the Administrative Agent or any Lender
may have had notice or knowledge of such Default at the time.




          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that (i) any provision of this Agreement or any other Loan Document may be amended




45









 




by an agreement in writing entered into only by the Borrower and the Administrative Agent either
(A) to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders
shall have received at least 10 Business Days’ prior written notice thereof and the Administrative
Agent shall not have received, within 10 Business Days of the date of such notice to the Lenders, a
written notice from the Required Lenders stating that the Required Lenders object to such amendment
or (B) to provide for any increase in the Commitment of any Lender or the extension of a Commitment
by any bank, financial institution or other entity that is not then a Lender and, in the case of
any such increase or extension effected after the making of any Loans hereunder, the making of such
Loans by such Lender or other entity as would result in each Lender participating in each Borrowing
then outstanding hereunder on a pro rata basis (after giving effect to any such
increase or extension), provided that such Lender or other entity is reasonably satisfactory to the
Administrative Agent and executes and delivers such agreement, and (ii) no such agreement shall (A)
increase the Commitment of any Lender over the amount then in effect without the written consent of
such Lender or extend the Maturity Date without the written consent of each Lender affected
thereby, (B) reduce the principal amount of any Loan or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender affected thereby, (C)
postpone the scheduled date of payment of any Loan, or any interest on any Loan, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of each Lender affected
thereby, or (D) change any of the provisions of this Section or the percentage set forth in the
definition of “Required Lenders” or any other provision hereof specifying the number or percentage
of Lenders required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the rights, duties
or interests of the Administrative Agent hereunder without the prior written consent of the
Administrative Agent.




          Section 9.03 Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay on demand (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the due diligence expenses, syndication
expenses, travel expenses and fees, charges and disbursements of counsel (but not more than one
firm of counsel (other than regulatory counsel)) associated with the syndication of the credit
facility provided for herein, the preparation, execution, delivery and administration of this
Agreement and any amendment, modification or waiver hereof and (ii) all reasonable out-of-pocket
expenses of the Administrative Agent and the Lenders (including the fees, disbursements and other
charges of counsel (but not more than one firm of counsel (other than regulatory counsel) to the
Administrative Agent and the Lenders) in connection with the enforcement of this Agreement.




          (b) The Borrower agrees to indemnify and hold harmless the Administrative Agent and each
Lender, and each Related Party of the foregoing (each, an “indemnified person”) from and
against any and all losses, claims, damages and liabilities to which any such indemnified person
may become subject arising out of or in connection with this Agreement, the use of the proceeds
thereof, the Transactions or any claim, litigation, investigation or proceeding relating to any of
the foregoing, regardless of whether any indemnified person is a party thereto, and to reimburse
each indemnified person upon demand for any reasonable out-of-pocket legal or other expenses
incurred in connection with investigating or defending any of the foregoing, provided that
the foregoing indemnity and reimbursement will not, as to any indemnified person, apply to losses,
claims, damages, liabilities or related expenses (i) to the extent they are found by a final,
non-appealable judgment of a court to arise from the wilful misconduct or gross negligence of such
indemnified person or any of its affiliates or its or their respective officers, directors,
employees, advisors or agents or (ii) to the extent they are found by a final, non-appealable
judgment of a court to have resulted from a breach of the obligations of such indemnified person
under this Agreement. No indemnified person shall be liable for any damages arising from the use by
unauthorized persons of Information or other materials sent through electronic, telecommunications
or






46









 







other information transmission systems that are intercepted by such persons, unless such use is
found by a final, non-appealable judgment of a court to arise from the wilful misconduct or gross
negligence or bad faith of such indemnified person or any of its Affiliates or its or their
respective officers, directors, employees, advisors or agents, or for any special, indirect,
consequential or punitive damages in connection with this Agreement or the Transactions. It is
understood and agreed that, to the extent not precluded by a conflict of interest, each indemnified
person shall endeavor to work cooperatively with the Borrower with a view toward minimizing the
legal and other expenses associated with any defense and any potential settlement or judgment. A
single counsel shall be used, provided that if, in the reasonable opinion of any indemnified
person, representation of all indemnified persons by one firm of counsel would be inappropriate due
to the existence of an actual or potential conflict of interest, the Borrower shall reimburse the
reasonable out-of-pocket expenses of no more than such number of additional firms of counsel for
the indemnified persons as is necessary to avoid such actual or potential conflict of interest.
Settlement of any claim or litigation involving any material indemnified amount will require the
approval of the Borrower (not to be unreasonably withheld).




          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent under paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to the Administrative Agent 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
in its capacity as such.




          (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any indemnified person, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof.




          (e) All amounts due under this Section shall be payable not later than 10 days after written
demand therefor.




          Section 9.04 Successors and Assigns. (a) 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 (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer
its rights or obligations hereunder except in accordance with this Section. 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 paragraph (c) of this Section) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.




          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees (other than a natural person) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it) with the prior written consent (such consent not to be unreasonably withheld or
delayed) of:





     (A) the Borrower, provided that no consent of the Borrower
shall be required if an Event of Default has occurred and is continuing or,
after the Closing Date, for an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund; and



47









 






     (B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund.




          (ii) Assignments shall be subject to the following additional conditions:




     (A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or, the amount of the Commitment or 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) shall not be less than $5,000,000 unless each
of the Borrower and the Administrative Agent otherwise consent,
provided that no such consent of the Borrower shall be required if
an Event of Default has occurred and is continuing;




     (B) 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; 




     (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and




     (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level
information (which may contain material non-public information about the
Borrower or the Target and their respective Related Parties or securities)
will be made available and who may receive such information in accordance
with the assignee’s compliance procedures and applicable laws, including
Federal and state securities laws.



     For the purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:




     “Approved Fund” shall mean any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar extensions of
credit in the ordinary course of its business and 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; provided, however, that, at any time prior
to the Commitment Termination Date when the aggregate amount of the Available Commitments
shall exceed zero, no Person shall be an Approved Fund with respect to any proposed
assignment hereunder unless at the time of such assignment either (i) its senior unsecured
long-term debt securities without third-party credit enhancement are rated at least BBB by
S&P or Baa2 by Moody’s or (ii) its senior unsecured short-term debt securities without
third-party credit enhancement are rated at least A-2 by S&P or P-2 by Moody’s.




          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto 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



48









 






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 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 9.04 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 paragraph (c) of this Section.




          (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices 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
Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, absent manifest error, and the 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 the Borrower and any Lender
at any reasonable time and from time to time upon reasonable prior notice.




          (v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed to
make any payment required to be made by it pursuant to Section 2.04(b), 2.16(f) or 9.03(c),
the Administrative Agent shall have no obligation to accept such Assignment and Assumption
and record the information therein in the Register unless and until such payment shall have
been made in full, together with all accrued interest thereon. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.



          (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent sell
participations to one or more banks or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. 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,
modification or waiver described in clause (ii) of the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 and shall be
bound by Section 2.17 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.16(e) as though it were a
Lender. Each Lender that sells a participation, acting solely for this purpose as an agent of the
Borrower, shall maintain a register on which it enters the




49









 







name and address of each Participant and
the principal amounts (and stated interest) of each Participant’s interest in the Loans
or other obligations under this Agreement (the “Participant Register”). The entries
in the Participant Register shall be conclusive, absent manifest error, and such Lender, the
Borrower and the Administrative Agent shall treat each person whose name is recorded in the
Participant Register pursuant to the terms hereof as the owner of such participation for all
purposes of this Agreement, notwithstanding notice to the contrary.





          (ii) A Participant shall not be entitled to receive any greater payment under Section
2.13 or 2.15 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. No Participant shall be
entitled to the benefits of Section 2.15 unless such Participant complies with Section
2.15(f) as though it were a Lender.



          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.




          Section 9.05 Survival. All covenants, agreements, representations and warranties made by the Borrower herein and
in the certificates or other instruments delivered in connection with or pursuant to this Agreement
shall be considered to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement and the making of any Loans, regardless of any
investigation made by any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.13, 2.14, 2.15 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any provision hereof.




          Section 9.06 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement and any separate letter agreements
with respect to fees payable to the Administrative Agent 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
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by fax or an electronic image of an executed counterpart of a signature page of this Agreement
shall be effective as delivery of a manually executed counterpart of this Agreement.




          Section 9.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and enforceability of the




50









 







remaining provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.




          Section 9.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by such Lender or Affiliate to
or for the credit or the account of the Borrower against any of and all the obligations of the
Borrower under this Agreement then due that are held by such Lender, irrespective of whether or not
such Lender shall have made any demand therefor under this Agreement. The rights of each Lender
under this Section are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.




          Section 9.09 Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement shall be construed in accordance with and governed by the law of the
State of New York.




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the exclusive jurisdiction of the Supreme Court 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 for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any jurisdiction.




          (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement 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 law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.




          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.




          Section 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY 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 THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




51









 








          Section 9.11 Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.




          Section 9.12 Confidentiality. (a) Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (i)
to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal
counsel and other advisors (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), (ii) to the extent requested by any regulatory authority, (iii) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (iv)
to any other party to this Agreement, (v) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (vi) subject to an agreement containing provisions substantially the same as those of
this Section, to (A) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (B) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (vii) with the consent of the Borrower or (viii) to the extent such
Information (A) becomes publicly available other than as a result of a breach of this Section or
(B) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a
source other than the Borrower or the Administrative Agent or another Lender on behalf of the
Borrower. For the purposes of this Section, “Information” shall mean all information
received from the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Borrower; provided that, (A) in the case of information received
from the Borrower after the Effective Date, such information is clearly identified at the time of
delivery as confidential and (B) with respect to disclosures pursuant to clauses (ii) and (iii)
above, unless prohibited by applicable law or court order, each Lender and the Administrative Agent
shall notify the Borrower of any request by any governmental agency or representative thereof or
other Person (other than any such request in connection with an examination of the financial
condition of such Lender by such governmental agency) for disclosure of any such confidential
information promptly after receipt of such request, and if practicable and permissible, before
disclosure of such information. 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.




          (b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER, THE
TARGET AND THEIR RESPECTIVE RELATED PARTIES OR SECURITIES, AND
CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC
INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE
PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.




          (c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER
OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS RELATED PARTIES OR ITS SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND
THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE




52









 







QUESTIONNAIRE A CREDIT
CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE
WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.




          Section 9.13 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate
applicable to any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of
interest payable in respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor)
until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.




          Section 9.14 USA PATRIOT Act. Each Lender that is subject to the requirements of the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”) hereby notifies the
Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender to identify the Borrower in
accordance with the Patriot Act.




          Section 9.15 No Other Duties, etc.. Anything herein to the contrary notwithstanding, none of the Arrangers, Co-Arrangers or
Syndication 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 or a Lender hereunder.




[signature pages follow]





53









 








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




	 	 	 	 	 
	 	BORROWER



AIR PRODUCTS AND CHEMICALS, INC.

 	 
	 	By:  	/s/ George G. Bitto
 	 
	 	 	Name:  	George G. Bitto 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	ADMINISTRATIVE AGENT



JPMorgan Chase Bank, N.A.,

as Administrative Agent and a Lender

 	 
	 	By:  	/s/  Stacey Haimes
 	 
	 	 	Name:  	Stacey Haimes 	 
	 	 	Title:  	Executive Director 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LENDER



THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

 	 
	 	By:  	/s/ Christopher H. O’Neill
 	 
	 	 	Name:  	Christopher H. O’Neill 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature page to Credit Agreement]





 












 





	 	 	 	 	 
	 	LENDER



BNP Paribas

 	 
	 	By:  	/s/ Renaud-Franck Falce
 	 
	 	 	Name:  	Renaud-Franck Falce 	 
	 	 	Title:  	Managing Director 	 
	 
	 	BNP Paribas

 	 
	 	By:  	/s/ Nicole Mitchell
 	 
	 	 	Name:  	Nicole Mitchell 	 
	 	 	Title:  	Vice President 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LENDER



Deutsche Bank AG Cayman Island Branch

 	 
	 	By:  	/s/ Rainer Meier
 	 
	 	 	Name:  	Rainer Meier 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Ming K. Chu
 	 
	 	 	Name:  	Ming K. Chu 	 
	 	 	Title:  	Vice President 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LENDER



HSBC Bank USA, National Association

 	 
	 	By:  	/s/  Paul L. Hatton
 	 
	 	 	Name:  	Paul L. Hatton 	 
	 	 	Title:  	Managing Director 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LENDER



The Royal Bank of Scotland plc

 	 
	 	By:  	/s/  Belinda Tucker
 	 
	 	 	Name:  	Belinda Tucker 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LENDER



THE BANK OF NOVA SCOTIA

 	 
	 	By:  	/s/ David Mahmood
 	 
	 	 	Name:  	David Mahmood 	 
	 	 	Title:  	Managing Director 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LENDER



INTESA SANPAOLO S.p.A.

 	 
	 	By:  	/s/  Francesco Di Mario
 	 
	 	 	Name:  	Francesco Di Mario 	 
	 	 	Title:  	First Vice President 	 
	 
	 	 	 
	 	By:  	                                              /s/ Glen Binder
 	 
	 	 	Name:  	Glen Binder 	 
	 	 	Title:  	Vice President 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LENDER



Sovereign Bank

(A subsidiary of Santander Holdings USA, Inc.)

 	 
	 	By:  	/s/ Ravi Kacker
 	 
	 	 	Name:  	Ravi Kacker 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LENDER



SUMITOMO MITSUI BANKING CORPORATION

 	 
	 	By:  	/s/  Yasuhiko Imai
 	 
	 	 	Name:  	Yasuhiko Imai 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LENDER



UBS Loan Finance LLC

 	 
	 	By:  	/s/  Mary E. Evans
 	 
	 	 	Name:  	Mary E. Evans 	 
	 	 	Title:  	Associate Director 	 
	 
	 	 	 
	 	By:  	                                              /s/  Irja R. Otsa
 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LENDER



Mizuho Corporate Bank (USA)

 	 
	 	By:  	/s/  Raymond Ventura
 	 
	 	 	Name:  	Raymond Ventura 	 
	 	 	Title:  	Deputy General Manager 	 
	 



[Signature page to Credit Agreement]





 









 





	 	 	 	 	 
	 	LENDER



Toronto Dominion (New York) LLC

 	 
	 	By:  	/s/ Debbi L. Brito
 	 
	 	 	Name:  	Debbi L. Brito 	 
	 	 	Title:  	Authorized Signatory 	 
	 



[Signature page to Credit Agreement]





 









 





EXHIBIT A




FORM OF ASSIGNMENT AND ASSUMPTION




     Reference is made to the CREDIT AGREEMENT, dated as of March 31, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among
AIR PRODUCTS AND CHEMICALS, INC. (the “Borrower”), the Lenders parties thereto and JPMORGAN
CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.



     The Assignor identified on Schedule l hereto (the “Assignor”) and the Assignee
identified on Schedule l hereto (the “Assignee”) agree as follows:


1. The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the
Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without
recourse to the Assignor, as of the Effective Date (as defined below), the interest described in
Schedule 1 hereto (the “Assigned Interest”) in and to the Assignor’s rights and obligations
under the Credit Agreement with respect to those credit facilities contained in the Credit
Agreement as are set forth on Schedule 1 hereto (individually, an “Assigned Facility”;
collectively, the “Assigned Facilities”), in a principal amount for each Assigned Facility
as set forth on Schedule 1 hereto.



2. The Assignor (a) makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with the Credit Agreement
or with respect to the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto, other than that the Assignor has not created any adverse claim upon the
interest being assigned by it hereunder and that such interest is free and clear of any such
adverse claim and (b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, any of its Affiliates or any other obligor or
the performance or observance by the Borrower, any of its Affiliates or any other obligor of any of
their respective obligations under the Credit Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto.



3. The Assignee (a) represents and warrants that it is legally authorized to enter into this
Assignment and Assumption; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered pursuant to Section 3.01 thereof and
such other documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Assumption; (c) agrees that it will, independently
and without reliance upon the Assignor, Administrative Agent or any Lender and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement, the other Loan Documents or
any other instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound
by the provisions of the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be performed by it as a
Lender including its obligations pursuant to Section 2.15(f) of the Credit Agreement.



4. The effective date of this Assignment and Assumption shall be the Effective Date of Assignment
described in Schedule 1 hereto (the “Effective Date”). Following the execution of this
Assignment and






 









 








2 



Assumption, it will be delivered to the Administrative Agent for acceptance by it and recording by
the Administrative Agent pursuant to the Credit Agreement, effective as of the Effective Date
(which shall not, unless otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the Administrative Agent).



5. Upon such acceptance and recording, from and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have accrued to the Effective
Date and to the Assignee for amounts which have accrued subsequent to the Effective Date.



6. From and after the Effective Date, (a) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Assumption, have the rights and obligations of a
Lender thereunder and under the other Loan Documents and shall be bound by the provisions thereof
and (b) the Assignor shall, to the extent provided in this Assignment and Assumption, relinquish
its rights and be released from its obligations under the Credit Agreement.



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




     IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption to be
executed as of the date first above written by their respective duly authorized officers on
Schedule 1 hereto.



 









 





Schedule 1

to Assignment and Assumption with respect to

the CREDIT AGREEMENT, dated as of March 31, 2010,

among AIR PRODUCTS AND CHEMICALS, INC. (the “Borrower”),

the Lenders party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent



Name of Assignor:                                         



Name of Assignee:                                         



Effective Date of Assignment:                                         




	 	 	 	 	 
	 	 	Principal	 	 
	Credit Facility Assigned	 	Amount Assigned	 	Commitment Percentage Assigned
	 
	 	$                     
	 	                    .                    %






	 	 	 	 	 	 	 	 	 	 	 

	[Name of Assignee]	 	 	 	[Name of Assignor]	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

Name:
	 	 
	 	 	 	 

Name:
	 	 
	 

	 	Title:
	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Accepted for Recordation in the Register:	 	 	 	Required Consents (if any):	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A., as

Administrative Agent	 	 	 	AIR PRODUCTS AND CHEMICALS, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

Name:
	 	 
	 	 	 	 

Name:
	 	 
	 

	 	Title:
	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	JPMORGAN CHASE BANK, N.A., as

Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

Name:
	 	 
	 

	 	 	 	 	 	 	 	Title:	 	 






 









 





EXHIBIT B-1




FORM OF EXEMPTION CERTIFICATE

(For Non-U.S. Lenders That Are Not Partnerships for U.S. Federal Income Tax Purposes)




     Reference is made to the CREDIT AGREEMENT, dated as of March 31, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among
AIR PRODUCTS AND CHEMICALS, INC. (the “Borrower”), the Lenders parties thereto and JPMORGAN
CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.



     Pursuant to the provisions of Section 2.15(f) of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is
not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended, (the “Code”), (iii) it is not a ten percent shareholder of the Borrower within the meaning
of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to the
Borrower as described in Section 881(c)(3)(C) of the Code and (v) the interest payments in question
are not effectively connected with the undersigned’s conduct of a U.S. trade or business.



     The undersigned has furnished the Borrower and the Administrative Agent with a certificate of
its non-U.S. person status on U.S. Internal Revenue Service Form W-8BEN. By executing this
certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent and (2)
the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.



[NAME OF LENDER]




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Date:                      ___, 20[   ]






 









 








EXHIBIT B-2




FORM OF EXEMPTION CERTIFICATE

(For Non-U.S. Lenders That Are Partnerships for U.S. Federal Income Tax Purposes)




     Reference is made to the CREDIT AGREEMENT, dated as of March 31, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among
AIR PRODUCTS AND CHEMICALS, INC. (the “Borrower”), the Lenders parties thereto and JPMORGAN
CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.



     Pursuant to the provisions of Section 2.15(f) of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing
such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are
the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii)
with respect to the extension of credit pursuant to this Credit Agreement or any other Loan
Document, neither the undersigned nor any of its partners/members is a bank extending credit
pursuant to a loan agreement entered into in the ordinary course of its trade or business within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended, (the “Code”),
(iv) none of its partners/members is a ten percent shareholder of the Borrower within the meaning
of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign
corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the
interest payments in question are not effectively connected with the undersigned’s or its
partners/members’ conduct of a U.S. trade or business.



     The undersigned has furnished the Borrower and the Administrative Agent with U.S. Internal
Revenue Service Form W-8IMY accompanied by a U.S. Internal Revenue Service Form W-8BEN from each of
its partners/members claiming the portfolio interest exemption. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform the Borrower and the Administrative Agent and (2) the
undersigned shall have at all times furnished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.



[NAME OF LENDER]




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 





Date:                      ___, 20[   ]






 









 








EXHIBIT B-3




FORM OF EXEMPTION CERTIFICATE

(For Participants That Are Not U.S. Persons and That Are Not Partnerships for U.S. Federal Income Tax

Purposes)




     Reference is made to the CREDIT AGREEMENT, dated as of March 31, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among
AIR PRODUCTS AND CHEMICALS, INC. (the “Borrower”), the Lenders parties thereto and JPMORGAN
CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.



     Pursuant to the provisions of Section 2.15(f) of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the participation in respect of
which it is providing this certificate, (ii) it is not a bank within the meaning of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended, (the “Code”), (iii) it is not a ten
percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it
is not a controlled foreign corporation related to the Borrower as described in Section
881(c)(3)(C) of the Code, and (v) the interest payments in question are not effectively connected
with the undersigned’s conduct of a U.S. trade or business.



     The undersigned has furnished its participating Lender with a certificate of its non-U.S.
person status on U.S. Internal Revenue Service Form W-8BEN. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform such Lender in writing and (2) the undersigned shall have at
all times furnished such Lender with a properly completed and currently effective certificate in
either the calendar year in which each payment is to be made to the undersigned, or in either of
the two calendar years preceding such payments.



[NAME OF PARTICIPANT]




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Date:                      ___, 20[   ]





 









 








EXHIBIT B-4




FORM OF EXEMPTION CERTIFICATE

(For Participants That Are Not U.S. Persons and That Are Partnerships for U.S. Federal Income Tax

Purposes)




     Reference is made to the CREDIT AGREEMENT, dated as of March 31, 2010 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among
AIR PRODUCTS AND CHEMICALS, INC. (the “Borrower”), the Lenders parties thereto and JPMORGAN
CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.



     Pursuant to the provisions of Section 2.15(f) of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the participation in respect of which it is
providing this certificate, (ii) its partners/members are the sole beneficial owners of such
participation, (iii) with respect such participation, neither the undersigned nor any of its
partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal
Revenue Code of 1986, as amended, (the “Code”), (iv) none of its partners/members is a ten percent
shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its
partners/members is a controlled foreign corporation related to the Borrower as described in
Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively
connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or business.



     The undersigned has furnished its participating Lender with U.S. Internal Revenue Service Form
W-8IMY accompanied by a U.S. Internal Revenue Service Form W-8BEN from each of its partners/members
claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees
that (1) if the information provided on this certificate changes, the undersigned shall promptly so
inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.



[NAME OF PARTICIPANT]




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 





Date:                      ___, 20[   ]









 









 








SCHEDULE 2.01




Commitments



	 	 	 	 	 	 	 
	Lender	 	Title	 	Total Commitment
	JPMorgan Chase Bank, N.A.
	 	Sole Bookrunner / Joint Lead Arranger	 	$	1,344,800,000.00	 
	BNP Paribas
	 	Joint Lead Arranger	 	$	672,400,000.00	 
	Deutsche Bank AG, Cayman Island Branch
	 	Joint Lead Arranger	 	$	672,400,000.00	 
	HSBC Bank USA, N.A.
	 	Joint Lead Arranger	 	$	672,400,000.00	 
	The Bank of Tokyo-Mitsubishi UFJ, LTD.
	 	Joint Lead Arranger	 	$	672,400,000.00	 
	The Royal Bank of Scotland, plc
	 	Joint Lead Arranger	 	$	672,400,000.00	 
	Intesa Sanpaolo S.p.A.
	 	Co-Arranger	 	$	336,200,000.00	 
	Sovereign Bank
	 	Co-Arranger	 	$	336,200,000.00	 
	Sumitomo Mitsui Bank Corporation
	 	Co-Arranger	 	$	336,200,000.00	 
	The Bank of Nova Scotia
	 	Co-Arranger	 	$	336,200,000.00	 
	UBS Loan Finance LLC
	 	Co-Arranger	 	$	336,200,000.00	 
	Mizuho Corporate Bank (USA)
	 	Participant	 	$	168,100,000.00	 
	Toronto Dominion LLC (New York)
	 	Participant	 	$	168,100,000.00	 
	Total
	 	 	 	$	6,724,000,000.00	 






 









 






SCHEDULE 3.07




No Conflict


The incurrence of the Loans may result in noncompliance with the Leverage Ratio (as defined
therein) in the Revolving Credit Agreement dated as of May 23, 2006 by and among Air Products and
Chemicals, Inc., the Other Borrowers parties thereto from time to time, the Lenders parties thereto
from time to time, and ABN Amro Bank N.V., as administrative agent, as amended.







 









 








SCHEDULE 6.02




Existing Liens



None.



 









 





SCHEDULE 6.04




Existing Indebtedness


Industrial Revenue Bonds due February 1, 2041, issued by Air Products LLC in an aggregate principal
amount of $53,000,000.



Financial Letter of Credit of Carburos Metallicos, as account party, in the amount of
EUR 54,663,887.