EX-10.ii



 




Exhibit
10.ii








 







CREDIT AGREEMENT


Dated as of October 20, 2004


As Amended and Restated as of


December 12, 2005


Among


HUBBELL INCORPORATED,


HUBBELL CAYMAN LIMITED,


THE LENDERS PARTY HERETO,


CITIBANK, N.A.,


BANK OF AMERICA, N.A. and


WACHOVIA BANK, NATIONAL ASSOCIATION,



as Syndication Agents



and


JPMORGAN CHASE BANK, N.A.,

as Administrative Agent


__________________________


J.P. MORGAN SECURITIES INC.,

as Sole Lead Arranger and Bookrunner



 













 









 



















TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 
	 	ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	      Definitions and Accounting Terms	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1.01.
	 	Definitions	 	 	1	 
	SECTION 1.02.
	 	Classification of Loans and Borrowings	 	 	13	 
	SECTION 1.03.
	 	Terms Generally	 	 	13	 
	SECTION 1.04.
	 	Accounting Terms; GAAP	 	 	13	 
	 
	 	 	 	 	 	 
	 
	 	  ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	  The Credits	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 2.01.
	 	Commitments	 	 	14	 
	SECTION 2.02.
	 	Loans and Borrowings	 	 	14	 
	SECTION 2.03.
	 	Requests for Revolving Borrowings	 	 	15	 
	SECTION 2.04.
	 	Competitive Bid Procedure	 	 	15	 
	SECTION 2.05.
	 	Funding of Borrowings	 	 	18	 
	SECTION 2.06.
	 	Interest Elections	 	 	18	 
	SECTION 2.07.
	 	Termination and Reduction of Commitments	 	 	19	 
	SECTION 2.08.
	 	Repayment of Loans; Evidence of Debt	 	 	20	 
	SECTION 2.09.
	 	Prepayment of Loans	 	 	21	 
	SECTION 2.10.
	 	Fees	 	 	21	 
	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	 	 	25	 
	SECTION 2.15.
	 	Taxes	 	 	25	 
	SECTION 2.16.
	 	Payments Generally; Pro Rata Treatment; Sharing of Setoffs	 	 	26	 
	SECTION 2.17.
	 	Mitigation Obligations; Replacement of Lenders	 	 	28	 
	SECTION 2.18.
	 	Increase in Commitments	 	 	28	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE III	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 Conditions Precedent to Loans	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 3.01.
	 	[Intentionally Omitted]	 	 	30	 
	SECTION 3.02.
	 	Each Borrowing	 	 	30	 
	 
	 	 	 	 	 	 
	 
	 	 ARTICLE IV	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 Representations and Warranties	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 4.01.
	 	Organization and Good Standing	 	 	31	 






i









 







	 	 	 	 	 	 	 
	SECTION 4.02.
	 	Due Authorization	 	 	31	 
	SECTION 4.03.
	 	No Conflicts	 	 	31	 
	SECTION 4.04.
	 	Consents	 	 	31	 
	SECTION 4.05.
	 	Enforceable Obligations	 	 	31	 
	SECTION 4.06.
	 	Financial Condition	 	 	32	 
	SECTION 4.07.
	 	No Default	 	 	32	 
	SECTION 4.08.
	 	No Material Litigation	 	 	32	 
	SECTION 4.09.
	 	Taxes	 	 	32	 
	SECTION 4.10.
	 	Compliance with Law	 	 	32	 
	SECTION 4.11.
	 	ERISA	 	 	32	 
	SECTION 4.12.
	 	Investment and Holding Company	 	 	33	 
	SECTION 4.13.
	 	Environmental Laws	 	 	33	 
	 
	 	 	 	 	 	 
	 
	 	 ARTICLE V	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Affirmative Covenants	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 5.01.
	 	Information Covenants	 	 	33	 
	SECTION 5.02.
	 	Books and Records; Communication with Accountants	 	 	34	 
	SECTION 5.03.
	 	Compliance with Law	 	 	34	 
	SECTION 5.04.
	 	Payment of Taxes	 	 	34	 
	SECTION 5.05.
	 	Insurance	 	 	35	 
	SECTION 5.06.
	 	ERISA	 	 	35	 
	SECTION 5.07.
	 	Use of Proceeds	 	 	35	 
	 
	 	 	 	 	 	 
	 
	 	 ARTICLE VI	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 Negative Covenants	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 6.01.
	 	Net Worth	 	 	35	 
	SECTION 6.02.
	 	Indebtedness	 	 	36	 
	SECTION 6.03.
	 	Consolidation, Merger	 	 	36	 
	SECTION 6.04.
	 	Transfer of Assets	 	 	37	 
	SECTION 6.05.
	 	Transactions with Affiliates	 	 	37	 
	SECTION 6.06.
	 	Liens	 	 	37	 
	SECTION 6.07.
	 	Swap Agreements	 	 	38	 
	SECTION 6.08.
	 	Subsidiary Borrower	 	 	38	 
	 
	 	 	 	 	 	 
	 
	 	  ARTICLE VII	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	  Events of Default	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 7.01.
	 	Events of Default	 	 	38	 
	 
	 	 	 	 	 	 
	 
	 	   ARTICLE VIII	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	  The Administrative Agent	 	 	 	 






 









 






	 	 	 	 	 	 	 
	 
	 	  ARTICLE IX	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	  Guarantee	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 ARTICLE X	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 Miscellaneous	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 10.01.
	 	Notices	 	 	45	 
	SECTION 10.02.
	 	Waivers; Amendments	 	 	46	 
	SECTION 10.03.
	 	Expenses; Indemnity; Damage Waiver	 	 	46	 
	SECTION 10.04.
	 	Successors and Assigns	 	 	47	 
	SECTION 10.05.
	 	Survival	 	 	50	 
	SECTION 10.06.
	 	Counterparts; Integration; Effectiveness	 	 	51	 
	SECTION 10.07.
	 	Severability	 	 	51	 
	SECTION 10.08.
	 	Right of Setoff	 	 	51	 
	SECTION 10.09.
	 	Governing Law; Jurisdiction; Consent to Service of Process	 	 	51	 
	SECTION 10.10.
	 	WAIVER OF JURY TRIAL	 	 	52	 
	SECTION 10.11.
	 	Headings	 	 	52	 
	SECTION 10.12.
	 	Confidentiality	 	 	52	 
	SECTION 10.13.
	 	Interest Rate Limitation	 	 	53	 
	SECTION 10.14.
	 	USA Patriot Act	 	 	53	 
	SECTION 10.15.
	 	Existing Credit Agreement;
Effectiveness of the Amendment and Restatement	 	 	53	 
	SECTION 10.16.
	 	Judgment	 	 	54	 
	 
	 	 	 	 	 	 
	EXHIBITS
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit A
	 	Form of Assignment and Assumption	 	 	 	 
	Exhibit B-1
	 	Form of Opinion of the Borrower’s General Counsel	 	 	 	 
	Exhibit B-2
	 	Form of Opinion of Latham & Watkins LLP	 	 	 	 
	Exhibit C
	 	Form of Financial Covenant Compliance Certificate	 	 	 	 
	Exhibit D
	 	Form of Responsible Party Certificate	 	 	 	 
	Exhibit E-1
	 	Form of Revolving Loan Promissory Note	 	 	 	 
	Exhibit E-2
	 	Form of Competitive Loan Promissory Note	 	 	 	 
	 
	 	 	 	 	 	 
	SCHEDULES	 	 	 	 
	 
	 	 	 	 	 	 
	Schedule 2.01—  Commitments	 	 	 	 
	Schedule 4.08—  Litigation	 	 	 	 
	Schedule 6.02—  Indebtedness	 	 	 	 






 









 






          CREDIT AGREEMENT dated as of October 20, 2004, as
amended and restated as of December 12, 2005, among HUBBELL
INCORPORATED, HUBBELL CAYMAN LIMITED, the Lenders party
hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.




W I T N E S S E T H :




          WHEREAS, the Company, the Lenders party thereto and JPMorgan Chase Bank, N. A., as successor
to JPMorgan Chase Bank, as administrative agent, are parties to a Credit Agreement dated as of
October 20, 2004, as amended and in effect immediately prior to the Restatement Effective Date (the
“Existing Credit Agreement)”;




          WHEREAS, the Borrowers, the Lenders and the Administrative Agent are parties to an Amendment
and Restatement Agreement dated as of December 12, 2005 (the “Amendment and Restatement
Agreement)”; and




          WHEREAS, subject to the satisfaction of the conditions set forth in the Amendment and
Restatement Agreement, the Existing Credit Agreement shall be amended and restated as provided
herein;




          NOW THEREFORE, IT IS AGREED:




ARTICLE I




Definitions and Accounting Terms




          SECTION 1.01. Definitions. As used herein, the following terms shall have the
meanings herein specified unless the context otherwise requires:




          “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” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.




          “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder.




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




          “Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under direct or indirect common control with such Person.




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          “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) 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 or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.




          “Amendment and Restatement Agreement” has the meaning given to such term in the
recitals hereto.




          “Applicable Facility Fee Rate” means, for any day that percent per annum set forth
below opposite the Debt Ratings in effect on such day:




	 	 	 
	 Debt Ratings	 	Applicable Facility Fee
	(S&P/Moody’s)	 	Rate
	Level 1

AA- or higher/Aa3 or higher
	 	0.060%
	Level 2

A+/A1
	 	0.070%
	Level 3

A/A2
	 	0.080%
	Level 4

A-/A3
	 	0.090%
	Level 5

BBB+/Baa1
	 	0.125%
	Level 6

BBB or lower/Baa2 or lower
	 	0.150%







          “Applicable LIBOR Interest Addition” means, for any day that percent per annum set
forth below opposite the Debt Ratings in effect on such day:




	 	 	 
	 	 	Applicable LIBOR
	 Debt Ratings (S&P/Moody’s)	 	Interest Addition
	Level 1

AA- or higher/Aa3 or higher
	 	0.115%
	Level 2

A+/A1
	 	0.130%
	Level 3

A/A2
	 	0.170%
	Level 4

A-/A3
	 	0.260%
	Level 5

BBB+/Baa1
	 	0.375%
	Level 6

BBB or lower/Baa2 or lower
	 	0.475%








2









 








          “Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments 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.




          “Approved Fund” has the meaning assigned to such term in Section 10.04.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 10.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.




          “Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.




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




          “Borrowers” means the Company and the Subsidiary Borrower.




          “Borrowing” means (a) Revolving Loans to the same Borrower of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect or (b) a Competitive Loan or group of Competitive Loans to the same
Borrower of the same Type made on the same date and as to which a single Interest Period is in
effect.




          “Borrowing Request” means a request by either Borrower for a Revolving Borrowing in
accordance with Section 2.03.




          “Business Day” means 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 means 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.




          “Change in Law” means (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, if any) with any request, guideline or directive




3









 







(whether or not having the force of law) of any Governmental Authority made or issued after
the date of this Agreement.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Competitive Loans.




          “CLO” has the meaning assigned to such term in Section 10.04.




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




          “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans hereunder, expressed as an amount representing the maximum aggregate amount of such
Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.07, (b) increased from time to time pursuant to Section 2.18 and (c)
reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04. The initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in
the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as
applicable. The initial aggregate amount of the Lenders’ Commitments is $200,000,000.




          “Company” means Hubbell Incorporated, a Connecticut corporation.




          “Competitive Bid” means an offer by a Lender to make a Competitive Loan in accordance
with Section 2.04.




          “Competitive Bid Rate” means, with respect to any Competitive Bid, the Margin or the
Fixed Rate, as applicable, offered by the Lender making such Competitive Bid.




          “Competitive Bid Request” means a request by either Borrower for Competitive Bids in
accordance with Section 2.04.




          “Competitive Loan” means a Loan made pursuant to Section 2.04.




          “Consistent Basis” means, with regard to the application of accounting principles,
accounting principles consistent in all material respects with the accounting principles used and
applied in preparation of the audited financial statements previously delivered to the Lenders and
referred to in Section 4.06, except as to changes required or permitted by GAAP.




          “Continuing Directors” means the directors of the Company on the Effective Date, and
each other director, if, in each case, such other director’s nomination is recommended by at least
66 ?% of the then Continuing Directors.




          “Controlled Group” means (i) the controlled group of corporations as defined in
Section 414(b) of the Code and the applicable regulations thereunder, or (ii) the group of trades
or businesses under common control as defined in Section 414(c) of the Code and the applicable
regulations thereunder, of which the Company is a part or may become a part.




4









 








          “Debt Ratings” means, as of any date of determination, the rating as announced by
Standard & Poor’s Ratings Group, Inc. (“S&P”) and Moody’s Investors Services, Inc.
(“Moody’s”) of





     (a) the Company’s senior unsecured long-term indebtedness for borrowed money that is
not Guaranteed by any other Person or subject to any other credit enhancement; or




     (b) if the applicable rating agency does not have a rating in effect with respect to
the Company’s debt referred to in the foregoing clause (a), the credit facility provided for
herein or, if no such rating is in effect, the rating of the Company’s other senior
unsecured debt securities;


provided that, if the applicable Debt Ratings announced by S&P and Moody’s fall within
different levels, the higher Debt Rating shall govern for the purposes of determining the
Applicable Facility Fee Rate and the Applicable LIBOR Interest Addition unless the Debt Ratings are
more than one level apart, in which case the level one level lower than the higher Debt Rating
shall govern for the purposes of determining the Applicable Facility Fee Rate and the Applicable
LIBOR Interest Addition. If either Moody’s or S&P shall not have in effect a Debt Rating (other
than by reason of the circumstances described in the next succeeding sentence), then the Debt
Rating of the rating agency which has a Debt Rating in effect shall govern for purposes of
determining the Applicable Facility Fee Rate and the Applicable LIBOR Interest Addition. If the
rating system of Moody’s or S&P shall materially change, or if each such rating agency shall cease
to be in the business of rating corporate debt obligations or shall not have in effect a Debt
Rating, the Borrowers and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such rating agencies, and,
pending the effectiveness of any such amendment, the Debt Ratings shall be determined by reference
to the ratings most recently in effect prior to such change or cessation; provided
further that after 90 days, if no such amendment becomes effective, the Applicable Facility
Fee Rate shall be 0.150% per annum and any Eurodollar Loan then outstanding shall convert to an ABR
Loan at the end of the applicable Interest Period. Any change in the Debt Rating shall be
effective as of the date on which it is first announced by the applicable rating agency and notice
of such change shall be provided by the Company to the Administrative Agent no more than five
Business Days after the date of such announcement.




          “Default” means 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.




          “Dollars” and the symbol “$” means dollars constituting legal tender for the payment
of public and private debts in the United States of America.




          “Effective Date” means October 20, 2004, which is the date on which the conditions
specified in Section 3.01 of the Existing Credit Agreement were satisfied (or waived in accordance
with Section 9.02 of the Existing Credit Agreement).




5









 








          “Environmental Laws” means any applicable federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree, permit or license regulating, relating to, or
imposing liability or standards of conduct concerning, any environmental matters.




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




          “ERISA Affiliate” means each person (as defined in Section 3(9) of ERISA) which,
together with the Company or any Subsidiary, would be deemed to be a member of the same Controlled
Group.




          “Eurodollar”, 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 Adjusted LIBO Rate (or, in the case of a Competitive Loan, the LIBO Rate).




          “Event of Default” has the meaning specified in Article VII.




          “Existing Credit Agreement” has the meaning given to such term in the recitals hereto.




          “Excluded Taxes” means, 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 either Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
lending office is located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which either Borrower is located and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by either Borrower under
Section 2.17(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office)
or is attributable to such Foreign Lender’s failure to comply with Section 2.15(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new lending office (or assignment), to receive additional amounts from the Borrowers with
respect to such withholding tax pursuant to Section 2.15(a).




          “Federal Funds Effective Rate” means, 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.




          “Fixed Rate” means, with respect to any Competitive Loan (other than a Eurodollar
Competitive Loan), the fixed rate of interest per annum specified by the Lender making such
Competitive Loan in its related Competitive Bid.




6









 








          “Fixed Rate Loan” means a Competitive Loan bearing interest at a Fixed Rate.




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




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




          “Governmental Authority” means 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”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation 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 other obligation 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 or other
obligation 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 other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.




          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances, (k) all obligations of such Person in respect of Swap Agreements
and (l) all obligations of such Person to make lease payments or other payments under any
“synthetic lease”. The Indebtedness of any Person shall





7









 







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 therefore 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 Taxes” means Taxes other than Excluded Taxes.




          “Intellectual Property” means all intellectual and similar property, including
inventions, designs, patents, patent registrations and applications, trademarks, trademark
registrations and applications, trade dress, service marks, copyrights, copyright registrations and
applications, know-how and trade secrets.




          “Interest Election Request” means a request by either Borrower to convert or continue
a Revolving Borrowing in accordance with Section 2.06.




          “Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each
March, June, September and December, (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 and (c) with respect to any Fixed Rate 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
Fixed Rate Borrowing with an Interest Period of more than 90 days’ duration (unless otherwise
specified in the applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days’ duration after the first day of such Interest
Period, and any other dates that are specified in the applicable Competitive Bid Request as
Interest Payment Dates with respect to such Borrowing.




          “Interest Period” means (a) 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 (or, with the consent of each Lender, nine or
twelve months) thereafter, as the applicable Borrower may elect and (b) with respect to any Fixed
Rate Borrowing, the period (which shall not be less than seven days or more than 360 days)
commencing on the date of such Borrowing and ending on the date specified in the applicable
Competitive Bid Request; provided that (i) 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, in the case of a Eurodollar Borrowing only, 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 (ii) any Interest Period pertaining to a Eurodollar Borrowing 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, in the case of a
Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.




8









 








          “Lenders” means 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.




          “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as the rate for Dollar
deposits with a maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate at which Dollar deposits of $5,000,000 and for
a maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.




          “Lien” means any interest in property securing any obligation owed to, or a claim by,
a Person other than the owner of the property, and including but not limited to the lien or
security interest arising from a mortgage, encumbrance, pledge or security agreement. For the
purposes of this Agreement, the Company and any Subsidiary shall be deemed to be the owner of any
property which it has acquired or holds subject to a conditional sale agreement, financing lease,
or other arrangement pursuant to which title to the property has been retained by or vested in some
other Person for security purposes.




          “Loan” means a loan made by a Lender to a Borrower pursuant to this Agreement.




          “Margin” means, with respect to any Competitive Loan bearing interest at a rate based
on the LIBO Rate, the marginal rate of interest, if any, to be added to or subtracted from the LIBO
Rate to determine the rate of interest applicable to such Loan, as specified by the Lender making
such Loan in its related Competitive Bid.




          “Material Adverse Effect” means a material adverse effect on (i) the business, assets,
operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a
whole, (ii) the ability of a Borrower to perform its payment obligations under this Agreement or
(iii) the validity or enforceability of this Agreement, or the rights and remedies of the Lenders
hereunder.




          “Maturity Date” means October 20, 2009.




          “Multiemployer Plan” means an employee pension benefit plan within the meaning of
Section 4001(a)(3) of ERISA to which any member of the Controlled Group is then making or accruing
an obligation to make contributions or has within the preceding three plan





9









 







years made contributions, including for these purposes any Person which ceased to be a member
of the Controlled Group during such three year period.




          “Net Worth” means, at any date, stockholders’ equity of the Company at such time
determined in accordance with GAAP applied on a Consistent Basis.




          “Other Taxes” means 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.




          “Participant” has the meaning set forth in Section 10.04.




          “PBGC” means the Pension Benefit Guaranty Corporation established under ERISA, and any
successor thereto.




          “Permitted Encumbrances” means:





     (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
workers’ compensation, unemployment insurance or other social security laws or regulations
(other than ERISA);




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




     (e) easements, zoning restrictions, rights-of-way 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 Company or any Subsidiary.



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




          “Plan” means any multiemployer or single-employer plan as defined in Section 4001 of
ERISA, which is maintained, or at any time during the three calendar years preceding the date of
this Agreement was maintained, for employees of the Company, any Subsidiary or an ERISA Affiliate.




10









 








          “Prime Rate” means 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 in New York City;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.




          “Principal Property” means, in respect of any Lien: (a) any manufacturing facility of,
or other real property owned by, the Company or any of its Subsidiaries located in the United
States of America, (b) any accounts receivable, inventory or Intellectual Property of the Company
or any of its domestic Subsidiaries or (c) any shares of capital stock, other equity ownership
interests or intercompany indebtedness of any Subsidiary that owns any of the foregoing.




          “Register” has the meaning set forth in Section 10.04.




          “Regulation D” means Regulation D of the Board as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.




          “Regulation T, U or X” means Regulation T, U or X, as applicable, of the Board as from
time to time in effect and any successor to all or a portion thereof establishing margin
requirements.




          “Related Parties” means, 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” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time; provided that, for purposes of declaring the Loans to
be due and payable pursuant to Article VII, and for all purposes after the Commitments expire or
terminate, the outstanding Competitive Loans of the Lenders shall be included in their respective
Revolving Credit Exposures in determining the Required Lenders.




          “Responsible Party” means the chief executive officer, president or chief financial
officer of the Company.




          “Restatement Effective Date” has the meaning specified in the Amendment and
Restatement Agreement.




          “Revolving Credit Exposure” means, with respect to any Lender at any time, the
outstanding principal amount of such Lender’s Revolving Loans at such time.




          “Revolving Loan” means a Loan made pursuant to Section 2.03.




          “Significant Subsidiary” means, at any time, any Subsidiary that would be a
“significant subsidiary” within the meaning of Regulation S-X of the Securities and Exchange
Commission.




11









 








          “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.




          “Subsidiary” means with respect to a Person, at any date, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation (irrespective of whether or not at the
time, any class or classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (ii) any partnership, association, joint venture or other entity in which
such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at any
time. Except as otherwise expressly provided, all references herein to “Subsidiary” shall mean a
Subsidiary of the Company.




          “Subsidiary Borrower” means Hubbell Cayman Limited, a Cayman Islands corporation and a
wholly owned Subsidiary.




          “Subsidiary Obligations” means (a) the obligation of the Subsidiary Borrower to pay
the principal of and premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans made to it, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (b) all
other monetary obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Subsidiary Borrower under this Agreement.




          “Swap Agreement” means 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 Company or the Subsidiaries shall be a
Swap Agreement.




12









 








          “Tangible Net Worth” means, at any date, the excess of total assets over total
liabilities of the Company and its Subsidiaries as of such date determined on a consolidated basis
in accordance with GAAP applied on Consistent Basis, excluding, however, from the determination of
total assets (i) goodwill, capitalized research and development expenses, Intellectual Property,
licenses and rights if any in respect thereof, and other similar intangibles and (ii) any items not
included in clause (i) above which are treated as intangibles in conformity with GAAP.




          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.




          “Total Capitalization” means, at any date, the sum of (a) total Indebtedness of the
Company and its Subsidiaries on a consolidated basis as of such date and (b) Net Worth as of such
date.




          “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, the Alternate Base Rate or, in the case of a Competitive Loan or Borrowing, the
LIBO Rate or a Fixed Rate.




          SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type
(e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving
Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g.,
a “Eurodollar Revolving Borrowing”).




          SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any 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), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.




          SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance





13









 







with GAAP, as in effect from time to time; provided that, if the Company notifies the
Administrative Agent that the Company requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the Company 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.




ARTICLE II




The Credits




          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees to make Revolving Loans to the Company or the Subsidiary Borrower from time to time
during the Availability Period in an aggregate principal amount that will not result in (a) such
Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment, (b) the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of outstanding Competitive Loans
exceeding the total Commitments or (c) the sum of the total Revolving Credit Exposures with respect
to Revolving Loans to the Subsidiary Borrower plus the aggregate principal amount of outstanding
Competitive Loans to the Subsidiary Borrower exceeding $25,000,000. Within the foregoing limits
and subject to the terms and conditions set forth herein, each Borrower may borrow, prepay and
reborrow Revolving Loans.




          SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part of
a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. Each Competitive Loan shall be made in accordance with the procedures set
forth in Section 2.04. 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
and Competitive Bids 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, (i) each Revolving Borrowing shall be comprised entirely of ABR
Loans or Eurodollar Loans as the applicable Borrower may request in accordance herewith, and (ii)
each Competitive Borrowing shall be comprised entirely of Eurodollar Loans or Fixed Rate Loans as
the applicable 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 applicable
Borrower to repay such Loan in accordance with the terms of this Agreement.




          (c) At the commencement of each Interest Period for any Eurodollar Revolving 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. At the time that each ABR Revolving 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;
provided that an ABR Revolving Borrowing may be in an




14









 







aggregate amount that is equal to the entire unused balance of the total Commitments. Each
Competitive 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 and Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of 15 Eurodollar
Revolving Borrowings outstanding.




          (d) Notwithstanding any other provision of this Agreement, a 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 Revolving Borrowings. To request a Revolving Borrowing,
the applicable 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 (b) in the case of an ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of the proposed Borrowing.
Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved
by the Administrative Agent and signed by the applicable Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance with Section 2.02:





     (i) the Borrower in respect of the requested Borrowing;




     (ii) the aggregate amount of the requested Borrowing;




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




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




     (v) 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




     (vi) the location and number of the applicable Borrower’s account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.05.


If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested Eurodollar Revolving Borrowing, then the applicable Borrower shall be deemed to have
selected an Interest Period of one month’s duration. If no election as to the identity of the
Borrower is specified, the requested Borrowing shall be made to the Company. Promptly following
receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall
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. Competitive Bid Procedure. (a) Subject to the terms and conditions set
forth herein, from time to time during the Availability Period either Borrower may





15









 







request Competitive Bids and may (but shall not have any obligation to) accept Competitive
Bids and borrow Competitive Loans; provided that (i) the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of outstanding Competitive Loans at any time shall
not exceed the total Commitments and (ii) the sum of the total Revolving Credit Exposures with
respect to Revolving Loans made to the Subsidiary Borrower plus the aggregate principal amount of
outstanding Competitive Loans made to the Subsidiary Borrower at any time shall not exceed
$25,000,000. To request Competitive Bids, the applicable Borrower shall notify the Administrative
Agent of such request by telephone, in the case of a Eurodollar Borrowing, not later than 11:00
a.m., New York City time, four Business Days before the date of the proposed Borrowing and, in the
case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that the Borrowers may submit up to
(but not more than) two Competitive Bid Requests on the same day, but a Competitive Bid Request
shall not be made within five Business Days after the date of any previous Competitive Bid Request,
unless any and all such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic Competitive Bid
Request shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid Request in a form approved by the Administrative Agent and signed by the
applicable Borrower. Each such telephonic and written Competitive Bid 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 a Eurodollar Borrowing or a Fixed Rate Borrowing;




     (iv) the Interest Period to be applicable to such Borrowing, which shall be a period
contemplated by the definition of the term “Interest Period”;




     (v) the location and number of the applicable Borrower’s account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.05; and




     (vi) the identity of the Borrower in respect of such Borrowing.


Promptly following receipt of a Competitive Bid Request in accordance with this Section, the
Administrative Agent shall notify the Lenders of the details thereof by telecopy, inviting the
Lenders to submit Competitive Bids.




          (b) Each Lender may (but shall not have any obligation to) make one or more Competitive Bids
to the applicable Borrower in response to a Competitive Bid Request. Each Competitive Bid by a
Lender must be in a form approved by the Administrative Agent and must be received by the
Administrative Agent by telecopy, in the case of a Eurodollar Competitive Borrowing, not later than
9:30 a.m., New York City time, three Business Days before the proposed date of such Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time,
on the proposed date of such Competitive Borrowing. Competitive Bids that do not conform
substantially to the form approved by the Administrative




16









 







Agent may be rejected by the Administrative Agent, and the Administrative Agent shall notify
the applicable Lender as promptly as practicable. Each Competitive Bid shall specify (i) the
principal amount (which shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 and
which may equal the entire principal amount of the Competitive Borrowing requested by the
applicable Borrower) of the Competitive Loan or Loans that the Lender is willing to make, (ii) the
Competitive Bid Rate or Rates at which the Lender is prepared to make such Loan or Loans (expressed
as a percentage rate per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.




          (c) The Administrative Agent shall promptly notify the applicable Borrower by telecopy of the
Competitive Bid Rate and the principal amount specified in each Competitive Bid and the identity of
the Lender that shall have made such Competitive Bid.




          (d) Subject only to the provisions of this paragraph, the applicable Borrower may accept or
reject any Competitive Bid. Such Borrower shall notify the Administrative Agent by telephone,
confirmed by telecopy in a form approved by the Administrative Agent, whether and to what extent it
has decided to accept or reject each Competitive Bid, in the case of a Eurodollar Competitive
Borrowing, not later than 10:30 a.m., New York City time, three Business Days before the date of
the proposed Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than 10:30
a.m., New York City time, on the proposed date of the Competitive Borrowing; provided that
(i) the failure of such Borrower to give such notice shall be deemed to be a rejection of each
Competitive Bid, (ii) such Borrower shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if such Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by such Borrower shall not exceed
the aggregate amount of the requested Competitive Borrowing specified in the related Competitive
Bid Request, (iv) to the extent necessary to comply with clause (iii) above, such Borrower may
accept Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata in accordance with
the amount of each such Competitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in a
minimum principal amount of $5,000,000 and an integral multiple of $1,000,000; provided
further that if a Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation of acceptances of portions of
multiple Competitive Bids at a particular Competitive Bid Rate pursuant to clause (iv) the amounts
shall be rounded to integral multiples of $1,000,000 in a manner determined by such Borrower. A
notice given by such Borrower pursuant to this paragraph shall be irrevocable.




          (e) The Administrative Agent shall promptly notify each bidding Lender by telecopy whether or
not its Competitive Bid has been accepted (and, if so, the amount and Competitive Bid Rate so
accepted), and each successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its Competitive Bid has been
accepted.




17









 








          (f) If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a
Lender, it shall submit such Competitive Bid directly to the applicable Borrower at least one
quarter of an hour earlier than the time by which the other Lenders are required to submit their
Competitive Bids to the Administrative Agent pursuant to paragraph (b) of this Section.




          SECTION 2.05. 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
12:00 noon, 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 applicable Borrower by promptly crediting the amounts so received, in like funds,
to an account of the such Borrower maintained with the Administrative Agent in New York City and
designated by such Borrower in the applicable Borrowing Request or Competitive Bid Request.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date 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 applicable 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 applicable 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 such Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the case of such 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 such
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 2.06. Interest Elections. (a) Each Revolving Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Revolving
Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the applicable Borrower may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The applicable 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. This Section
shall not apply to Competitive Borrowings which may not be converted or continued.




          (b) To make an election pursuant to this Section, the applicable 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 such Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such





18









 







election. Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by the applicable
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);




     (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 applicable 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 applicable Borrower fails to deliver a timely Interest Election Request with
respect to a Eurodollar Revolving 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 Company, then, so long as an Event
of Default is continuing (i) no outstanding Revolving Borrowing may be converted to or continued as
a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable thereto.




          SECTION 2.07. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Commitments shall terminate on the Maturity Date.




          (b) The Company 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 not less
than $1,000,000 or an integral multiple thereof and (ii) the Company shall not terminate





19









 







or reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.09, the sum of the Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans would exceed the total Commitments.




          (c) The Company shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) 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 Company pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by
the Company may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of
the Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.




          SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan owed by such Borrower on the Maturity Date and
(ii) to the Administrative Agent for the account of each Lender the then unpaid principal amount of
each Competitive Loan owed by such Borrower on the last day of the Interest Period applicable to
such Loan.




          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of each 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 Borrower thereof, the Class and 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 each 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 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 either 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 (i) a Revolving Loan
promissory note substantially in the form of Exhibit E-1 (or such other form approved by the
applicable Borrower and the Administrative Agent, such approval not to be unreasonably withheld) or
(ii) a Competitive Loan promissory note substantially in the form of Exhibit E-2 (or such other
form approved by the applicable Borrower and the Administrative





20









 







Agent, such approval not to be unreasonably withheld). In such event, the applicable 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) and in a form
approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to Section 10.04) be
represented by one or more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its registered
assigns).




          SECTION 2.09. Prepayment of Loans. (a) Each 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 the Borrowers shall not have
the right to prepay any Competitive Loan without the prior consent of the Lender thereof.




          (b) The applicable Borrower shall notify the Administrative Agent by telephone (confirmed by
telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Revolving
Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of
prepayment and (ii) in the case of prepayment of an ABR Revolving Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of 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
2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.07. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.
Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in
the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section
2.11.




          SECTION 2.10. Fees. (a) The Company agrees to pay to the Administrative Agent for
the account of each Lender a facility fee, which shall accrue at the Applicable Facility Fee Rate
on the daily amount of the Commitment of such Lender (whether used or unused) during the period
from and including the Effective Date to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any Revolving Credit Exposure
after its Commitment terminates, then such facility fee shall continue to accrue on the daily
amount of such Lender’s Revolving Credit Exposure from and including the date on which its
Commitment terminates to but excluding the date on which such Lender ceases to have any Revolving
Credit Exposure. Accrued facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments terminate, commencing
on the first such date to occur after the date hereof; provided that any facility fees
accruing after the date on which the Commitments terminate shall be payable on demand. All
facility 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).




21









 








          (b) The Company agrees to pay to the Administrative Agent for the account of each Lender
ratably in accordance with such Lender’s Commitment a utilization fee, which shall accrue at a rate
equal to 0.125% per annum on all outstanding Loans for each day that the aggregate outstanding
Loans are in excess of 50% of the then aggregate Commitments; provided that, if any Lender
continues to have any Loans outstanding after the Commitments terminate, then such utilization fee
shall continue to accrue on such Loans during any period that such Lender continues to have any
Loans outstanding. Accrued utilization fees shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof; provided that any
utilization fees accruing after the date on which the Commitments terminate shall be payable on
demand. All utilization 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).




          (c) The Company agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Company and the Administrative
Agent.




          (d) 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 facility fees and utilization fees, to
the Lenders. 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.




          (b) The Loans comprising each Eurodollar Borrowing shall bear interest (i) in the case of a
Eurodollar Revolving Loan, at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable LIBOR Interest Addition, or (ii) in the case of a Eurodollar
Competitive Loan, at the LIBO Rate for the Interest Period in effect for such Borrowing plus (or
minus, as applicable) the Margin applicable to such Loan.




          (c) Each Fixed Rate Loan shall bear interest at the Fixed Rate applicable to such Loan.




          (d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by either 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.




          (e) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued





22









 







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 Revolving 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.




          (f) 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, Adjusted LIBO Rate or 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 or the LIBO Rate, as applicable, for such Interest Period; or




          (b) the Administrative Agent is advised by the Required Lenders (or, in the case of a
Eurodollar Competitive Loan, the Lender that is required to make such Loan) that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for such Interest Period;




then the Administrative Agent shall give notice thereof to the Company and the Lenders by telephone
or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the
Company 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 Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective, (ii) if
any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be made as an
ABR Borrowing and (iii) any request by either Borrower for a Eurodollar Competitive Borrowing shall
be ineffective; provided that if the circumstances giving rise to such notice do not affect
all the Lenders, then requests by a Borrower for Eurodollar Competitive Borrowings may be made to
Lenders that are not affected thereby.




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





     (i) 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




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



23









 




and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan or Fixed Rate Loan (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 the Company will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.




          (b) 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 the Company
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.




          (c) If the cost to any Lender of making or maintaining any Loan to the Subsidiary Borrower is
increased (or the amount of any sum received or receivable by any Lender (or its applicable lending
office) is reduced) by an amount deemed in good faith by such Lender to be material, by reason of
the fact that the Subsidiary Borrower is incorporated in, or conducts business in, a jurisdiction
outside the United States, the Subsidiary Borrower will pay to such Lender such additional amount
or amounts as will compensate such Lender for such increased cost or reduction suffered.




          (d) A certificate of a 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), (b) or (c) of
this Section shall be delivered to the Company and shall be conclusive absent manifest error. The
Company or the applicable Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.




          (e) 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 Company shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date that such Lender
notifies the Company 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
270-day period referred to above shall be extended to include the period of retroactive effect
thereof.




          (f) Notwithstanding the foregoing provisions of this Section, a Lender shall not be entitled
to compensation pursuant to this Section in respect of any Competitive Loan if the Change in Law
that would otherwise entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.




24









 








          SECTION 2.14. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan or Fixed Rate 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 or Fixed Rate Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.09(b) and is revoked in accordance therewith), (d) the failure to borrow any
Competitive Loan after accepting the Competitive Bid to make such Loan, or (e) the assignment of
any Eurodollar Loan or Fixed Rate Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the applicable Borrower pursuant to Section 2.17, then, in any
such event, the Company or the Company shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, 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, 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 any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the
Company and shall be conclusive absent manifest error. The Company or the applicable 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) Any and all payments by or on account of any obligation of
either Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if either 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)
such Borrower shall make such deductions and (iii) such Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.




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




          (c) The relevant Borrower shall indemnify the Administrative Agent and each Lender, within 10
days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent or such Lender, as the case may be, on or with respect to any
payment by or on account of any obligation of such Borrower hereunder (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and
any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or





25









 







legally imposed or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to either Borrower by a Lender or by the
Administrative Agent on its own behalf or on behalf of a Lender shall be conclusive absent manifest
error.




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




          (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which either Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to such
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by such Borrower as will permit such payments to be made without withholding or at a
reduced rate.




          (f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by either
Borrower or with respect to which either Borrower has paid additional amounts pursuant to this
Section 2.15, it shall pay over such refund to such Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by such Borrower under this Section 2.15 with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses 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); provided that such Borrower,
upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over
to such Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative
Agent or such Lender is required to repay such refund to such Governmental Authority. This Section
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 which it deems confidential) to either
Borrower or any other Person.




          SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, 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 setoff 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 10.03 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





26









 







shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, 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 amount of principal then due to such parties.




          (c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans resulting
in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving
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 Revolving 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 Revolving 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 either Borrower pursuant to and in accordance with the express
terms of this Agreement 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
Company or any Subsidiary (as to which the provisions of this paragraph shall apply). Each
Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against such Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Borrower in the amount of
such participation.




          (d) Unless the Administrative Agent shall have received notice from the applicable Borrower
prior to the date on which any payment is due to the Administrative Agent for the account of the
Lenders hereunder that such Borrower will not make such payment, the Administrative Agent may
assume that such Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such event, if such
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.




          (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.05(b) or 2.16(d), then the Administrative Agent may, in its discretion




27









 







(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
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 either 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 use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.13 or
2.15, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Company hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.




          (b) If any Lender requests compensation under Section 2.13, or if either 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 defaults in its obligation to fund Loans
hereunder, then the Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans held by it) to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Company shall have received the prior
written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding principal of its
Loans (other than Competitive Loans) and 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 applicable Borrower or Borrowers (in the case of all other
amounts) and (iii) 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. 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 Company to require such assignment and delegation cease to apply.




          SECTION 2.18. Increase in Commitments. (a) The Company may, by written notice to the
Administrative Agent (which shall promptly deliver a copy to each of the Lenders), request that the
total Commitments be increased by an amount not less than $25,000,000 for any such increase;
provided that after giving effect to any such increase the sum of the total Commitments shall not
exceed $250,000,000 minus any amount by which the Commitments shall have been reduced pursuant to
Section 2.07. Such notice shall set forth the amount of the requested increase in the total
Commitments and the date on which such increase is requested to become effective (which shall be
not less than 10 Business Days or more than 60 days after the date of such notice), and shall offer
each Lender the opportunity to increase its Commitment by its Applicable Percentage of the proposed
increased amount. Each Lender shall, by notice to the





28









 







Company and the Administrative Agent given not more than 10 days after the date of the
Company’s notice, either agree to increase its Commitment by all or a portion of the offered amount
(each Lender so agreeing being an “Increasing Lender”) or decline to increase its Commitment (and
any Lender that does not deliver such a notice within such period of 10 days shall be deemed to
have declined to increase its Commitment). In the event that, on the 10th day after the Company
shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall
have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount
less than the increase in the total Commitments requested by the Company, the Company may arrange
for one or more banks or other financial institutions (any such bank or other financial institution
referred to in this clause (a) being called an “Augmenting Lender”), which may include any Lender,
to extend Commitments or increase their existing Commitments in an aggregate amount equal to the
unsubscribed amount; provided that each Augmenting Lender, if not already a Lender hereunder, shall
be subject to the approval of the Administrative Agent (which approval shall not be unreasonably
withheld) and the Company and each Augmenting Lender shall execute all such documentation as the
Administrative Agent shall reasonably specify to evidence its Commitment and/or its status as a
Lender hereunder. Any increase in the total Commitments may be made in an amount which is less
than the increase requested by the Company if the Company is unable to arrange for, or chooses not
to arrange for, Augmenting Lenders.




          (b) On the effective date (the “Increase Effective Date”) of any increase in the total
Commitments pursuant to this Section 2.18 (the “Commitment Increase”), if any Revolving
Loans are outstanding, the Borrowers (i) shall prepay all Revolving Loans then outstanding
(including all accrued but unpaid interest thereon) and (ii) may, at their option, fund such
prepayment by simultaneously borrowing Revolving Loans of the Types and for the Interest Periods
specified in one or more Borrowing Requests delivered pursuant to Section 2.03, which Revolving
Loans shall be made by the Lenders (including the Increasing Lenders and the Augmenting Lenders, if
any) ratably in accordance with their respective Commitments (calculated after giving effect to the
Commitment Increase). The payments made pursuant to clause (i) above in respect of each Eurodollar
Loan shall be subject to indemnification by the Borrowers pursuant to the provisions of Section
2.14 if the Increase Effective Date occurs other than on the last day of the Interest Period
relating thereto.




          (c) Increases and new Commitments created pursuant to this Section 2.18 shall become effective
on the date specified in the notice delivered by the Company pursuant to the first sentence of
paragraph (a) above; provided that the Company may, with the consent of the Administrative
Agent (such consent not to be unreasonably withheld), extend such date by up to 30 days by
delivering written notice to the Administrative Agent no less than three Business Days prior to the
date specified in the notice delivered by the Company pursuant to the first sentence of paragraph
(a) above.




          (d) Notwithstanding the foregoing, no increase in the total Commitments (or in the Commitment
of any Lender) or addition of an Augmenting Lender shall become effective under this Section
unless, (i) on the date of such increase, the conditions set forth in clauses (b) and (c) of
Section 3.02 shall be satisfied and the Administrative Agent shall have received a certificate to
that effect dated such date and executed by a Responsible Officer of the Company, and (ii) if
required by the Administrative Agent, the Administrative Agent shall have received




29









 







(with sufficient copies for each of the Lenders) documents consistent with those delivered on
the Restatement Effective Date under clauses (c) and (e) of Section 3 of the Amendment and
Restatement Agreement.




ARTICLE III




Conditions Precedent to Loans




          SECTION 3.01. [Intentionally Omitted].




          SECTION 3.02. Each Borrowing. The obligation of each Lender to make a Loan on the
occasion of any Borrowing is subject to the satisfaction of the following conditions:




          (a) the Administrative Agent shall have received written notice of the applicable Borrower’s
intent to borrow if required by Article II;




          (b) the representations and warranties of the Company set forth in Article IV (other than the
representation set forth in Section 4.08 and the representation set forth in the last sentence of
Section 4.06) shall be true and correct on and as of the date of such Borrowing with the same
effect as though such representations and warranties had been made on and as of such date, except
to the extent that such representations and warranties expressly relate to an earlier date, in
which case such representations and warranties shall be true and correct as of such earlier date;




          (c) at the time of (and after giving effect to) such Borrowing, no Default shall have occurred
and be continuing; and




          (d) immediately after giving effect to such Borrowing:





     (i) the Revolving Credit Exposure of each Lender shall not exceed such Lender’s
Commitment;




     (ii) the sum of the total Revolving Credit Exposures plus the aggregate principal
amount of outstanding Competitive Loans shall not exceed the total Commitments at such time;
and




     (iii) the sum of the total Revolving Credit Exposures with respect to Revolving Loans
to the Subsidiary Borrower plus the aggregate principal amount of outstanding Competitive
Loans to the Subsidiary Borrower shall not exceed $25,000,000;


Each Borrowing shall be deemed to constitute a representation and warranty by the Company and the
applicable Borrower on the date thereof as to the matters specified in paragraphs (b), (c) and (d)
of this Section.




30









 








ARTICLE IV




Representations and Warranties




          The Company hereby represents and warrants to the Administrative Agent and the Lenders that:




          SECTION 4.01. Organization and Good Standing. Each of the Company and its
Subsidiaries is a corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, is duly qualified and in good standing as a foreign
corporation authorized to do business in every jurisdiction where the failure to so qualify would
have a Material Adverse Effect, and has the requisite corporate power and authority to own its
properties and to carry on its business as now conducted and as proposed to be conducted.




          SECTION 4.02. Due Authorization. Each Borrower (i) has the corporate power and
requisite authority to execute, deliver and perform this Agreement and (ii) is duly authorized to,
and has been authorized by all necessary corporate action, to execute, deliver and perform this
Agreement.




          SECTION 4.03. No Conflicts. Neither the execution and delivery of this Agreement by
the Borrowers, nor the consummation of the transactions contemplated herein, nor performance by
either Borrower of and compliance with the terms and provisions hereof will (i) violate or conflict
with any provision of either Borrower’s articles of incorporation or bylaws, (ii) violate,
contravene or materially conflict with any law, regulation (including Regulation U or Regulation
X), order, writ, judgment, injunction, decree or permit applicable to it, (iii) violate, contravene
or materially conflict with contractual provisions of, or cause an event of default under, any
indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to
which either Borrower is a party or by which either Borrower may be bound or (iv) result in or
require the creation of any Lien upon or with respect to either Borrower’s properties, except to
the extent that any such violation, contravention, conflict or Lien referred to in the foregoing
clauses (ii), (iii) or (iv) could not reasonably be expected to have a Material Adverse Effect.




          SECTION 4.04. Consents. No consent, approval, authorization or order of, or filing,
registration or qualification with, any Governmental Authority or third party is required in
connection with the execution, delivery or performance of this Agreement, except to the extent that
the failure to obtain such consents, approvals, authorization or orders, or to make any such
filing, registration or qualification, could not reasonably be expected to have a Material Adverse
Effect.




          SECTION 4.05. Enforceable Obligations. This Agreement has been duly executed and
delivered by each Borrower and constitutes a legal, valid and binding obligation of such Borrower
enforceable in accordance with its terms, except as may be limited by bankruptcy or insolvency laws
or similar laws affecting creditors’ rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and any implied covenant of good faith and fair
dealing.





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          SECTION 4.06. Financial Condition. The financial statements and financial information
provided to the Lenders, consisting of (a) an audited consolidated balance sheet of the Company and
its Subsidiaries dated as of December 31, 2004, together with related consolidated statements of
income, stockholders’ equity and changes in financial position or cash flow certified by
PricewaterhouseCoopers LLP, the Company’s independent certified public accountants, and (b) a
Company prepared unaudited consolidated balance sheet of the Company and its Subsidiaries dated as
of June 30, 2005, together with related consolidated statements of income, stockholders’ equity and
changes in financial position or cash flow certified by the Company’s chief financial officer,
fairly represent in all material respects the financial condition of the Company and its
Subsidiaries as of such respective dates and for such periods and such financial statements were
prepared in accordance with GAAP applied on a Consistent Basis, subject to normal year-end audit
adjustments and the absence of footnotes in the case of the statements referred to in the foregoing
clause (b). Since December 31, 2004, there have occurred no changes or circumstances which have
had or are likely to have a Material Adverse Effect.




          SECTION 4.07. No Default. No Default presently exists.




          SECTION 4.08. No Material Litigation. Except as disclosed in Schedule 4.08, there are
no actions, suits or legal, equitable, arbitration or administrative proceedings, pending or, to
the knowledge of the Company, threatened against the Company or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.




          SECTION 4.09. Taxes. The Company has filed, or caused to be filed, all tax returns
(federal, state, local and foreign) required to be filed and paid all amounts of Taxes shown
thereon to be due (including interest and penalties) and has paid all other taxes, fees,
assessments and other governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing (or necessary to preserve any Liens in favor of the Lenders), by
it or its Subsidiaries, except for such Taxes (i) which are not yet delinquent, (ii) which are
being contested in good faith and by proper proceedings, and against which adequate reserves are
being maintained in accordance with GAAP or (iii) which, if not paid, could not reasonably be
expected to have a Material Adverse Effect.




          SECTION 4.10. Compliance with Law. The Company and each of its Subsidiaries is in
compliance with all laws, rules, regulations, orders and decrees (including Environmental Laws)
applicable to it or to its properties, except for such laws, rules, regulations, orders and decrees
noncompliance with which could not reasonably be expected to have a Material Adverse Effect.




          SECTION 4.11. ERISA. Except, in the case of any of the following, for matters which
would not have a Material Adverse Effect, (i) no Reportable Event (as defined in ERISA) has
occurred and is continuing with respect to any Plan; (ii) as of the end of the most recent Plan
year, no Plan has an unfunded current liability (determined under Section 412 of the Code) or an
accumulated funding deficiency; (iii) no proceedings have been instituted, or, to the knowledge of
the Company, planned, to terminate any Plan; (iv) neither the Company, any Subsidiary or any ERISA
Affiliate, nor any duly-appointed administrator of a Plan has instituted or intends to institute
proceedings to withdraw from any Multiemployer Plan; and (v) each Plan has been





32









 







maintained and funded in all material respects with its terms and with the provisions of ERISA
applicable thereto.




          SECTION 4.12. Investment and Holding Company. Neither Borrower is an “investment
company,” as such term is defined in the Investment Company Act of 1940 or a “holding company” as
defined in the Public Utility Holding Company Act of 1935.




          SECTION 4.13. Environmental Laws. The Company and each Subsidiary is in compliance
with all applicable Environmental Laws, except to the extent that noncompliance therewith could not
reasonably be expected to have a Material Adverse Effect.




ARTICLE V




Affirmative Covenants




          The Company hereby covenants and agrees that so long as the Commitments are in effect and
until the Loans, together with interest, fees and other obligations which are then due and payable
hereunder, have been paid in full:




          SECTION 5.01. Information Covenants. The Company will furnish, or cause to be
furnished, to the Administrative Agent and each Lender:




          (a) Annual Financial Statements. As soon as available and in any event within 90 days
after the close of each fiscal year of the Company, a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such fiscal year together with related consolidated statements of
income and retained earnings and of cash flows for such fiscal year, setting forth in comparative
form consolidated figures for the preceding fiscal year examined by PricewaterhouseCoopers LLP, the
Company’s independent certified public accountants, whose opinion shall be to the effect that such
financial statements have been prepared in accordance with GAAP applied on a Consistent Basis and
shall not be qualified as to the scope of the audit or as to the status of the Company or any of
its Subsidiaries as a going concern. The financial information required by this Section 5.01(a)
may be delivered in the form of an Annual Report on Form 10-K as filed with the Securities and
Exchange Commission.




          (b) Quarterly Financial Statements. As soon as available and in any event within 45
days after the end of each of the first three fiscal quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Subsidiaries as at the end of such quarterly
period together with related consolidated statements of income and retained earnings and of cash
flows for such quarterly period and for the portion of the fiscal year ending with such period, in
each case setting forth in comparative form consolidated figures for the corresponding period of
the preceding fiscal year and accompanied by a certificate of the chief financial officer of the
Company as having been prepared in accordance with GAAP applied on a Consistent Basis, subject to
normal year-end audit adjustments and the absence of footnotes. The financial information required
by this Section 5.01(b) may be delivered in the form of a Quarterly Report on Form 10-Q as filed
with the Securities and Exchange Commission.




          (c) Officer’s Certificates. At the time of delivery of the financial statements
provided for in Sections 5.01(a) and (b) hereof, a certificate of the chief financial officer of
the





33









 







Company substantially in the form of Exhibit C to the effect that the Company is in
substantial compliance with the terms of this Agreement and no Default exists, or if any Default
does exist specifying the nature and extent thereof and what action the Company proposes to take
with respect thereto. Such certificate shall set forth reasonably detailed calculations
demonstrating compliance with Sections 6.01 and 6.02.




          (d) SEC Reports. Promptly upon transmission thereof, copies of all filings on Forms
10-K, 10-Q, 8-K and registration statements filed by the Company with the Securities and Exchange
Commission, or any successor agency, and copies of all reports furnished by the Company to its
stockholders.




          (e) Notice of Default, Litigation, etc. Upon a Responsible Party of the Company
obtaining knowledge thereof, it will give written notice to the Administrative Agent and the
Lenders (i) immediately, of the occurrence of an event or condition consisting of a Default,
specifying the nature and existence thereof and what action the Company proposes to take with
respect thereto, and (ii) promptly, but in any event within five Business Days, of the occurrence
of any of the following with respect to the Company or any of its Subsidiaries: (A) the pendency
or commencement of any litigation, arbitral or governmental proceeding against the Company or any
of its Subsidiaries which is likely to have a Material Adverse Effect, (B) any levy of an
attachment, execution or other process against its assets which is likely to have a Material
Adverse Effect, (C) the occurrence of an event or condition which shall constitute a default or
event of default under any other agreement for borrowed money in excess of $50,000,000 or (D) any
development in its business or affairs which has resulted in, or which the Company reasonably
believes is likely to result in, a Material Adverse Effect.




          (f) Other Information. Promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition of the Company or
any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any
Lender may reasonably request.




          SECTION 5.02. Books and Records; Communication with Accountants. The Company will,
and will cause each of its Subsidiaries to, keep complete and accurate books and records of its
transactions in accordance with good accounting practices. The Company will, and will cause each
of its Subsidiaries to, permit on reasonable notice officers or designated representatives of the
Administrative Agent or any Lender to visit and inspect its properties, to examine its books and
records, and to discuss the affairs, finances and accounts of the Company and its Subsidiaries
with, and be advised as to the same by, the Company’s officers and its independent certified public
accountants, all at such reasonable times and as often as reasonably requested.




          SECTION 5.03. Compliance with Law. The Company will, and will cause each of its
Subsidiaries to, comply with all applicable laws, rules, regulations and orders of, and all
applicable restrictions imposed by all applicable Governmental Authorities, except where any such
noncompliance could not reasonably be expected to have a Material Adverse Effect.




          SECTION 5.04. Payment of Taxes. The Company will, and will cause each of its
Subsidiaries to, pay and discharge all Taxes, assessments and governmental charges or levies





34









 







imposed upon it, or upon its income or profits, or upon any of its properties, before they
shall become delinquent, unless the same is being contested in good faith by appropriate
proceedings and adequate reserves therefor have been established in accordance with GAAP or unless
the failure to make such payments could not reasonably be expected to have a Material Adverse
Effect.




          SECTION 5.05. Insurance. The Company will, and will cause each of its Subsidiaries
to, at all times maintain in full force and effect insurance in such amounts, covering such risks
and liabilities and with such deductibles or self-insurance retentions as are in accordance with
normal industry practice.




          SECTION 5.06. ERISA. The Company will, and will cause each of its Subsidiaries to,
(a) at all times, make prompt payment of all contributions required from the Company and each
Subsidiary under all Plans and required of the Company and each Subsidiary to meet the minimum
funding standard set forth in ERISA with respect to all Plans if the failure to make any such
payment would likely have a Material Adverse Effect; and (b) notify the Administrative Agent
immediately of any fact, including any Reportable Event (as defined in ERISA) arising in connection
with any of its Plans, which would reasonably be expected to constitute grounds for termination
thereof by the PBGC or for the appointment by the appropriate United States District Court of a
trustee to administer such Plan, involving a Plan, the termination of which would reasonably be
expected to have a Material Adverse Effect, together with a statement, if requested by the Lenders,
as to the reason therefor and the action, if any, proposed to be taken with respect thereof. The
Company will not, nor will it permit any of its Subsidiaries or ERISA Affiliates to, (i) terminate
a Plan if any such termination would give rise to or result in any liability, or (ii) cause or
permit to exist any event or condition which presents a material risk of termination at the request
of the PBGC, where in either (i) or (ii) that liability would reasonably be expected to have a
Material Adverse Effect.




          SECTION 5.07. Use of Proceeds. The proceeds of the Loans hereunder will be used by
each Borrower for working capital, capital expenditures, and other lawful general corporate
purposes, including support of the Company’s commercial paper program. None of the proceeds will
be used for the purpose of purchasing or carrying any “margin stock” (as such term is defined in
Regulation U) or for the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock in violation of the requirements of Regulation U.




ARTICLE VI




Negative Covenants




          The Company hereby covenants and agrees that so long as the Commitments are in effect and
until the Loans, together with interest, fees and other obligations which are then due and payable
hereunder, have been paid in full:




          SECTION 6.01. Net Worth. The Company will not permit the Net Worth of the Company and
its Subsidiaries at any time to be less than $675,000,000.






35









 








          SECTION 6.02. Indebtedness. (a) The Company will not permit total Indebtedness of
the Company and its Subsidiaries on a consolidated basis at any time outstanding to exceed 55% of
Total Capitalization at such time.




          (b) Without limiting paragraph (a) above, the Company will not permit any of its Subsidiaries
to create, incur, assume, suffer to exist any Indebtedness (including any Guarantee of any
Indebtedness), except:





     (i) Indebtedness hereunder;




     (ii) Indebtedness of any such Subsidiary owed to the Company or to a Subsidiary of the
Company;




     (iii) Indebtedness of any such Subsidiary existing on the Effective Date (all
Indebtedness of the Subsidiaries in an amount of $1,000,000 or greater existing on the
Effective Date is described on Schedule 6.02) and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal amount thereof or
result in an earlier maturity date;




     (iv) endorsements of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business;




     (v) Indebtedness incurred in respect of (A) workers’ compensation claims,
self-insurance obligations, bankers’ acceptances, performance, surety and similar bonds and
completion guarantees provided by the Company or a Subsidiary in the ordinary course of
business, (B) performance bonds or similar obligations of the Company or any of its
Subsidiaries for or in connection with pledges, deposits or payments made or given in the
ordinary course of business, and not for money borrowed, in connection with or to secure
statutory, regulatory or similar obligations, including obligations under health, safety or
environmental obligations, and (C) Guarantees to suppliers, lessors, licensees, contractors,
franchises or customers of obligations incurred in the ordinary course of business and not
for money borrowed;




     (vi) Indebtedness incurred by any Subsidiary constituting reimbursement obligations
with respect to letters of credit issued in the ordinary course of business;




     (vii) Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn
against insufficient funds in the ordinary course of business, provided,
however, that such Indebtedness is extinguished within five Business Days of
incurrence; and




     (viii) Indebtedness of Subsidiaries not otherwise permitted by the foregoing clauses of
this Section; provided that the aggregate principal amount of such additional
Indebtedness of all such Subsidiaries at any one time outstanding permitted under this
clause (viii) does not exceed $25,000,000.



          SECTION 6.03. Consolidation, Merger. The Company will not, and will not permit the
Subsidiary Borrower to, dissolve, liquidate, or wind up its affairs, or enter into any




36









 







transaction of merger or consolidation unless (i) the Company or the Subsidiary Borrower (as
applicable) is the surviving corporation of such merger or consolidation or (ii) the surviving
corporation in such merger or consolidation shall be a corporation existing under the laws of the
United States of America, any state thereof or the District of Columbia (the “Successor
Corporation”), the Successor Corporation shall expressly assume, by amendment to this Agreement
executed by the applicable Borrower, the Successor Corporation and the Administrative Agent, the
due and punctual payment of the principal of and interest on the Loans to the applicable Borrower
and all other amounts payable by such Borrower under this Agreement and the payment and performance
of every covenant hereof on the part of the applicable Borrower and its Subsidiaries to be
performed or observed, and no Default shall have occurred or be continuing at the time of such
merger or consolidation or would result from such merger or consolidation.




          SECTION 6.04. Transfer of Assets. The Company will not sell, lease, transfer or
otherwise dispose of all or substantially all of its property or assets, except to a wholly-owned
Subsidiary of the Company.




          SECTION 6.05. Transactions with Affiliates. The Company will not, nor will it permit
any Subsidiary to, other than in the ordinary course of business, enter into any transaction or
series of transactions, with any Affiliate of the Company, other than on terms and conditions
substantially as favorable to the Company or such Subsidiary as would be obtainable by it in a
comparable arm’s-length transaction with a Person other than an Affiliate.




          SECTION 6.06. Liens. The Company will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any Principal Property now owned or hereafter
acquired by it to secure Indebtedness of the Company or any Subsidiary, except:




          (a) Permitted Encumbrances;




          (b) any Lien on any property or asset of the Company or any Subsidiary existing on the date
hereof; provided that (i) such Lien shall not cover any other property or asset of the
Company or any Subsidiary and (ii) such Lien shall secure only those obligations which it secures
on the date hereof and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof (except in respect of any fees and expenses incurred in
connection with any such extension, renewal or replacement);




          (c) any Lien existing on any property or asset prior to the acquisition thereof by the Company
or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary
after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (ii) such Lien shall not cover any other property or
assets of the Company or any Subsidiary 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, as
the case may be, and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof (except in respect of any fees and expenses incurred in
connection with any such extension, renewal or replacement);




37









 








          (d) Liens on fixed or capital assets acquired, constructed or improved by the Company or any
Subsidiary; provided that (i) such Liens and the Indebtedness secured thereby are incurred
prior to or within 180 days after such acquisition or the completion of such construction or
improvement, and (ii) such Liens shall not cover any other property or assets of the Company or any
Subsidiary or secure any Indebtedness other than the Indebtedness incurred to finance the
acquisition, construction or improvement of such fixed or capital assets; and




          (e) Liens not otherwise permitted hereunder; provided that, at the time of the
creation, incurrence or assumption of any Indebtedness secured by any Lien and after giving effect
thereto, the aggregate principal amount of the Indebtedness of the Company and the Subsidiaries
secured by Liens permitted under this clause (e) does not exceed an amount equal to 10% of Tangible
Net Worth at such time.




          SECTION 6.07. Swap Agreements. The Company will not and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Company or any Subsidiary has actual exposure (other than those in
respect of shares of capital stock or other equity ownership interests of the Company or any of its
Subsidiaries), and (b) Swap Agreements entered into in order to effectively cap, collar or exchange
interest rates (from fixed to floating rates, from one floating rate to another floating rate or
otherwise) with respect to any interest-bearing liability or investment of the Company or any
Subsidiary.




          SECTION 6.08. Subsidiary Borrower. The Company will not permit the Subsidiary
Borrower to cease to be a wholly-owned Subsidiary of the Company.




ARTICLE VII




Events of Default




          SECTION 7.01. Events of Default. Upon the occurrence of any of the following
specified events (each an “Event of Default”):




          (a) Payment. Either Borrower shall (i) default in the payment when due of any
principal of any Loan, or (ii) default, and such default shall continue for five or more days, in
the payment when due of any interest on any Loan, or of any fees or other amounts owing hereunder
or in connection herewith; or




          (b) Representations. Any representation, warranty or statement made or deemed to be
made by the Company herein or in connection with this Agreement or in any statement or certificate
delivered or required to be delivered pursuant hereto shall prove untrue in any material respect on
the date as of which it was deemed to have been made; or




          (c) Covenants. Either Borrower shall (i) default in the due performance or observance
of any term, covenant or agreement contained in Section 5.07 or Article VI, or (ii) default in the
due performance or observance by it of any term, covenant or agreement (other than those referred
to in subsections (a), (b) or (c)(i) of this Section 7.01) contained in this Agreement and such
default shall continue unremedied for a period of at least 30 days after notice thereof by the
Administrative Agent or any Lender to the Company; or if without the





38









 







written consent of the Lenders, this Agreement shall be disaffirmed or shall terminate, be
terminable or be terminated or become void or unenforceable for any reason whatsoever (other than
as expressly provided for hereunder); or




          (d) Bankruptcy, etc. (i) Either Borrower or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate
it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its assets, or either Borrower or any of its Significant Subsidiaries
shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced
against either Borrower or any of its Significant Subsidiaries any case, proceeding or other action
of a nature referred to in clause (i) above which (x) results in the entry of an order for relief
or any such adjudication or appointment or (y) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against either Borrower or any of its
Significant Subsidiaries any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) either Borrower or any of its Significant Subsidiaries shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or




          (e) Defaults under Other Agreements. Either Borrower or any of its Subsidiaries shall
(A) default in any payment with respect to any Indebtedness (other than the Loans hereunder) in
excess of $50,000,000, individually or in the aggregate for the Company and its Subsidiaries
collectively, or (B) default in the observance or performance of any agreement or condition
relating to any such Indebtedness (other than Loans hereunder) in excess of $50,000,000 or
contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event or condition shall occur or condition exist, the effect of which default or other event or
condition is to (i) cause such Indebtedness to become due prior to its stated maturity or (ii)
enable or permit (with or without the giving of notice, the lapse of time or both) the holder or
holders of such Indebtedness or any trustee or agent on its or their behalf to cause such
Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; or




          (f) Judgments. One or more judgments or decrees shall be entered against either
Borrower or any of its Subsidiaries involving a liability of $50,000,000 or more in any instance or
in the aggregate for all such judgments and decrees for the Company and its Subsidiaries
collectively (not paid or fully covered by insurance provided by a carrier who has acknowledged
coverage or covered by an indemnification provided by a credit-worthy indemnitor) and any such
judgments or decrees shall not have been vacated, discharged or stayed or bonded pending appeal
within 60 days from the entry thereof; or




39









 








          (g) ERISA. The Company, any Subsidiary or any ERISA Affiliate shall fail to pay when
due an amount or amounts aggregating in excess of $50,000,000 which it shall have become liable to
pay under ERISA; or notice of intent to terminate a Plan or Plans which in the aggregate have
unfunded liabilities in excess of $50,000,000 (individually and collectively, a “Material
Plan”) shall be filed under ERISA by the Company, any Subsidiary or any ERISA Affiliate, any
plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings
under ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA)
in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating
that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the Controlled Group to incur a
current payment obligation in excess of $50,000,000, and the liability that, individually or in the
aggregate, would reasonably be expected to occur would result in a Material Adverse Effect; or




          (h) Change in Control. (i) Any “person” or “group” (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof) (other than either of the two trusts (the “Roche Trust” and the
“Hubbell Trust”) which, as of the Effective Date, each own more that 5% of the Class A Common Stock
of the Company and the beneficiaries of which are the issue of Harvey Hubbell and, in the case of
the Roche Trust, their spouses, or any future trust established for any of the same beneficiaries)
either (A) becomes the “beneficial owner” (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date
hereof), directly or indirectly, of voting securities of the Company (or securities convertible
into or exchangeable for such voting securities) representing 40% or more of the combined voting
power of all voting securities of the Company (on a fully diluted basis) or (B) otherwise has the
ability, directly or indirectly, to elect a majority of the board of directors of the Company; or
(ii) during any period of up to 12 consecutive months, commencing on the Effective Date, Continuing
Directors shall cease for any reason (other than the death, disability or retirement of a director)
to constitute a majority of the board of directors of the Company;



then, in any such event, and at any time thereafter, the Administrative Agent, upon the direction
of the Required Lenders, shall, by written notice to the Company take any of the following actions
without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims
against the Borrowers, except as otherwise specifically provided for herein:





     (i) Termination. Declare the Commitments of each Lender terminated, whereupon
the Commitment of each Lender hereunder shall terminate immediately;




     (ii) Acceleration. Declare the unpaid principal of and any accrued interest in
respect of all the outstanding Loans, together with all fees and other obligations of the
Borrowers accrued hereunder, to be due whereupon the same shall be immediately due and
payable without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers; and



40









 






     (iii) Enforcement of Rights. Enforce any and all rights and remedies of the
Administrative Agent or the Lenders in respect of the Loans, including without limitation
all rights of setoff; provided however that, notwithstanding the foregoing,
if an Event of Default specified in Section 7.01(d) with respect to either Borrower shall
occur, then the Commitments of the Lenders hereunder shall automatically terminate and the
Loans, together with accrued interest thereon and all fees and other obligations of the
Borrowers accrued hereunder, shall immediately become due and payable without the giving of
any notice or other action by the Administrative Agent or any Lender.



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 either Borrower or any Subsidiary or other Affiliate
thereof 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 10.02), 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 Company or any of its 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
10.02) 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 a 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,





41









 







instrument or document, or (v) the satisfaction of any condition set forth in Article III or
elsewhere herein, other than to confirm receipt of items expressly required to be delivered 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 either
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 facility 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
Company. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Company, 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 Company to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Company and such successor.
After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section
10.03 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





42









 







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.




          Each party hereto agrees and acknowledges that (i) the Syndication Agents do not have any
duties or responsibilities in their capacities as Syndication Agents, respectively, hereunder and
shall not have, or become subject to, any liability hereunder in such capacities and (ii) the
exculpation provisions contained herein relating to the Administrative Agent shall be equally
applicable to the Syndication Agents and the Syndication Agents shall each receive the full benefit
thereof.




ARTICLE IX




Guarantee




          In order to induce the Lenders to extend credit to the Subsidiary Borrower hereunder, the
Company hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a
surety, the Subsidiary Obligations. The Company further agrees that the due and punctual payment
of the Subsidiary Obligations may be extended or renewed, in whole or in part, without notice to or
further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding
any such extension or renewal of any Subsidiary Obligation.




          The Company waives presentment to, demand of payment from and protest to the Subsidiary
Borrower of any of the Subsidiary Obligations, and also waives notice of acceptance of its
obligations and notice of protest for nonpayment. The obligations of the Company hereunder shall
not be affected by (a) the failure of any Lender to assert any claim or demand or to enforce any
right or remedy against the Subsidiary Borrower under the provisions of this Agreement or
otherwise; (b) any extension or renewal of any of the Subsidiary Obligations; (c) any rescission,
waiver, amendment or modification of, or release from, any of the terms or provisions of this
Agreement or any other agreement; (d) the failure or delay of any Lender to exercise any right or
remedy against any other guarantor of the Subsidiary Obligations; (e) the failure of any Lender to
assert any claim or demand or to enforce any remedy under any other agreement or instrument; (f)
any default, failure or delay, wilful or otherwise, in the performance of the Subsidiary
Obligations; (g) any law, regulation, decree or order of any jurisdiction, or any other event,
affecting any term of the Subsidiary Obligations or Lenders’ rights with respect thereto,
including, without limitation: (i) the application of any such law, regulation, decree or order,
including any prior approval, which would prevent the exchange of a currency other than Dollars for
Dollars or the remittance of funds outside of such jurisdiction or the unavailability of Dollars in
any legal exchange market in such jurisdiction in accordance with normal commercial practice; or
(ii) a declaration of banking moratorium or any suspension of payments by banks in such
jurisdiction or the imposition by such jurisdiction or any governmental authority thereof of any
moratorium on, the required rescheduling or restructuring of, or required approval of payments on,
any indebtedness in such jurisdiction; or (iii) any expropriation, confiscation, nationalization or
requisition by such country or any governmental authority that directly or indirectly deprives the
Subsidiary Borrower of any assets or their use or of the ability to operate its business or a
material part thereof; or (iv) any war (whether or not declared), insurrection, revolution, hostile
act, civil strife or similar events occurring in such jurisdiction which has the





43









 







same effect as the events described in clause (i), (ii) or (iii) above (in each of the cases
contemplated in clauses (i) through (iv) above, to the extent occurring or existing on or at any
time after the date of this Agreement; or (h) any other act, omission or delay to do any other act
which may or might in any manner or to any extent vary the risk of the Company or otherwise operate
as a discharge of the Company as a matter of law or equity or which would impair or eliminate any
right of the Company to subrogation, in each case, other than payment in full of the Subsidiary
Obligations after termination of the Commitments.




          The Company further agrees that its guarantee hereunder constitutes a promise of payment when
due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or
collection of any of the Subsidiary Obligations or operated as a discharge thereof) and not merely
of collection, and waives any right to require that any resort be had by any Lender to any balance
of any deposit account or credit on the books of any Lender in favor of the Company or any
Subsidiary or any other Person.




          The obligations of the Company hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Subsidiary Obligations, any impossibility in the performance of the
Subsidiary Obligations or otherwise, in each case, other than the defense of payment in full of the
Subsidiary Obligations.




          The Company further agrees that its obligations hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of any Subsidiary
Obligation is rescinded or must otherwise be restored by any Lender upon the bankruptcy or
reorganization of either Borrower or otherwise.




          In furtherance of the foregoing and not in limitation of any other right which any Lender may
have at law or in equity against the Company by virtue hereof, upon the failure of the Subsidiary
Borrower to pay any Subsidiary Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, the Company hereby promises to
and will, upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be
paid, to the Administrative Agent for distribution to the Lenders in cash an amount equal the
unpaid principal amount of such Subsidiary Obligation. The Company further agrees that if payment
in respect of any Subsidiary Obligation shall be due at a place of payment other than New York and
if, by reason of any legal prohibition, disruption of currency or foreign exchange markets, war or
civil disturbance or other event, payment of such Subsidiary Obligation at such place of payment
shall be impossible or, in the reasonable judgment of any Lender, not consistent with the
protection of its rights or interests, then, at the election of such Lender, the Company shall make
payment of such Subsidiary Obligation in New York, and shall indemnify such Lender against any
losses or expenses (including losses or expenses resulting from fluctuations in exchange rates)
that it shall sustain as a result of such alternative payment.




          Upon payment in full by the Company of any Subsidiary Obligation of the Subsidiary Borrower,
each Lender shall, in a reasonable manner, assign to the Company the amount of such Subsidiary
Obligation owed to such Lender and so paid, such assignment to be pro tanto to the extent to which
the Subsidiary Obligation in question was discharged by the







44









 








Company, or make such disposition thereof as the Company shall direct (all without recourse to
any Lender and without any representation or warranty by any Lender). Upon payment by the Company
of any sums as provided above, all rights of the Company against the Subsidiary Borrower arising
as a result thereof by way of right of subrogation or otherwise shall in all respects be
subordinated and junior in right of payment to the prior indefeasible payment in full of all the
Subsidiary Obligations owed by the Subsidiary Borrower to the Lenders (it being understood that,
after the discharge of all the Subsidiary Obligations due and payable from the Subsidiary
Borrower, such rights may be exercised by the Company notwithstanding that the Subsidiary Borrower
may remain contingently liable for indemnity or other Subsidiary Obligations).




ARTICLE X




Miscellaneous




          SECTION 10.01. 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 telecopy, as follows:





     (i) if to the Company, to it at 584 Derby Milford Road, Orange, Connecticut 06477-4024,
Attention of James H. Biggart (Telecopy No. (203) 799-4205), with a copy to Richard W.
Davies, Vice President, General Counsel and Secretary (Telecopy No.(203) 799-4333);




     (ii) if to the Subsidiary Borrower, to it in care of the Company as provided in clause
(i) above;




     (iii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, 1111 Fannin Street, 10th Floor, Houston, TX 77002, Attention of Glenn Hector
(Telecopy No. (713) 750-2938), with a copy to JPMorgan Chase Bank, N.A., Two Corporate
Drive, Suite 730, Shelton, CT 06484, Attention of Scott Farquhar (Telecopy No.(203)
944-8495); and




     (iv) if to any other Lender, to it at its address (or telecopy 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 either 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.




45









 








          (c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by 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 10.02. 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 either 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 Borrowers and the Required
Lenders or by the Borrowers and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) 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, (iii) postpone the scheduled date of payment of the principal amount of any Loan,
or any interest thereon, 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, (iv) change Section 2.16(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the written consent of
each Lender, (v) change any of the provisions of this Section or 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 or (vi) release the Company from its
Guarantee under Article IX (except as expressly provided in Article IX) or limit its liability in
respect of such Guarantee, without the written consent of each Lender; provided further
that no such agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the Administrative Agent.




          SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Company shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
in connection with the syndication of the credit facility provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and
(ii) all out-of-pocket expenses incurred by the Administrative





46









 







Agent or any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or protection of its rights
in connection with this Agreement, including its rights under this Section, or in connection with
the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans.




          (b) The Company shall indemnify the Administrative Agent and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or
as a result of (i) the execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of the transactions contemplated hereby, (ii) any Loan or the use of
the proceeds therefrom, (iii) any Environmental Liability related in any way to the Company or any
of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.




          (c) To the extent that the Company 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, neither of the Borrowers shall assert, and each
Borrower hereby waives, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, any Loan or the use of the proceeds thereof.




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




          SECTION 10.04. 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) no Borrower may 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 either 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






47









 







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 an Affiliate of the Company) 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 Company; provided that no consent of the Company shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund
(as defined below) or, if an Event of Default under clause (a) or (d) of Article VII
has occurred and is continuing, any other assignee; and




     (B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment to an Affiliate of a Lender
or for an assignment to an assignee that is a Lender immediately prior to giving
effect to such assignment.



          (ii) Assignments shall be subject to the following 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, the amount of the Commitment 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 Company and the Administrative Agent
otherwise consent; provided that no such consent of the Company shall be
required if an Event of Default under clause (a) or (d) of Article VII 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;
provided that this clause shall not apply to rights in respect of
outstanding Competitive Loans;




     (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;




     (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and




     (E) in the case of an assignment to a CLO (as defined below), the assigning
Lender shall retain the sole right to approve any amendment,



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modification or waiver of any provision of this Agreement; provided
that the Assignment and Assumption between such Lender and such CLO may provide that
such Lender will not, without the consent of such CLO, agree to any amendment,
modification or waiver described in the first proviso to Section 10.02(b) that
affects such CLO.




     For purposes of this Section 10.04(b), the terms “Approved Fund” and “CLO” have the
following meanings:




     “Approved Fund” means (a) a CLO and (b) with respect to any Lender that is a
fund which invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.




     “CLO” means any entity (whether a corporation, partnership, trust or otherwise)
that is engaged in making, purchasing, holding or otherwise investing in bank loans and
similar extensions of credit in the ordinary course of its business and is administered or
managed by a Lender to an Affiliate of such Lender.




     (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 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 10.03).
Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 10.04 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 Borrowers,
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, and the Borrowers, 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 Borrowers 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



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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. 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 either Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”), other than to
an Affiliate of the Company, 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 Borrowers, 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 the
first proviso to Section 10.02(b) that affects such Participant. Subject to paragraph (c)(ii) of
this Section, each Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.13, 2.14 and 2.15 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 10.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.16(c) as though it were a
Lender.





     (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 Company’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.15
unless the Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section 2.15(e) 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 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 10.05. Survival. All covenants, agreements, representations and warranties
made by either 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





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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 10.03 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 10.06. 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 3.01, 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 telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.




          SECTION 10.07. 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 remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.




          SECTION 10.08. 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 either Borrower
against any of and all the obligations of such Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. 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 10.09. Governing Law; Jurisdiction; Consent to Service of Process. (a)(a)
This Agreement shall be construed in accordance with and governed by the law of the State of New
York.




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          (b) Each Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive 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 either Borrower or its properties in the courts of any jurisdiction.




          (c) Each 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 10.01. 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 10.10. 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.




          SECTION 10.11. 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 10.12. Confidentiality. 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 (a) 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




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Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) 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, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to either Borrower and its obligations, (g) with the consent of the Company or (h) to the
extent such Information (i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than either Borrower. For the purposes of this Section, “Information”
means all information received from either Borrower relating to either 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 a Borrower; provided that, in the case of
information received from either Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.




          SECTION 10.13. 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 10.14. USA Patriot Act. Each Lender hereby notifies each Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), (the “Act”), it is required to obtain, verify and record information that
identifies such Borrower, which information includes the name and address of such Borrower and
other information that will allow such Lender to identify such Borrower in accordance with the Act.




          SECTION 10.15. Existing Credit Agreement; Effectiveness of the Amendment and
Restatement. Until this Agreement becomes effective in accordance with the terms of the
Amendment and Restatement Agreement, the Existing Credit Agreement shall remain in full force and
effect and shall not be affected hereby. After the Restatement Effective Date, all





53









 







obligations of the Company under the Existing Credit Agreement shall become obligations of the
Company hereunder, and the provisions of the Existing Credit Agreement shall be superseded by the
provisions hereof.




          SECTION 10.16. Judgment. (a) If, for the purpose of obtaining judgment in any court,
it is necessary to convert a sum owing hereunder in one currency into another currency, each party
hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the relevant jurisdiction
the first currency could be purchased with such other currency on the Business Day immediately
preceding the day on which final judgment is given.




          (b) The obligations of each Borrower in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than the
currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be
discharged only to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement
Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to the Applicable Creditor in the Agreement Currency, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Borrowers contained in this Section 10.16 shall
survive the termination of this Agreement and the payment of all other amounts owing hereunder.





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