Exhibit 10.4


 


EXECUTION COPY


 




 





CREDIT AGREEMENT


 


dated as of


 


April 29, 2005


 


between


 


BRUNSWICK CORPORATION,


 


The SUBSIDIARY ACCOUNT PARTIES


and


SUBSIDIARY BORROWERS Party Hereto,


 


The LENDERS Party Hereto


 


and


 


JPMORGAN CHASE BANK, N.A.,


 


as Administrative Agent


 










 


$650,000,000


 










 


J.P. MORGAN SECURITIES INC. and RBS SECURITIES CORPORATION,


as Joint Lead Arrangers and Joint Bookrunners


 


THE ROYAL BANK OF SCOTLAND PLC,


as Syndication Agent


 


BANK OF AMERICA, N.A.,


SUNTRUST BANK


and


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as Documentation Agents




 





 





















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I
  DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  SECTION 1.01.
  Defined Terms

  	
  1

  
	
  SECTION 1.02. Classification of
  Loans and Borrowings

  	
  26

  
	
  SECTION 1.03. Terms Generally

  	
  26

  
	
  SECTION 1.04. Accounting Terms;
  GAAP; Fiscal Year

  	
  27

  
	
  SECTION 1.05. Currencies;
  Currency Equivalents

  	
  27

  
	
   

  	
   

  
	
  ARTICLE II THE CREDITS

  	
  28

  
	
   

  	
   

  
	
  SECTION 2.01. The Commitments.

  	
  28

  
	
  SECTION 2.02. Loans and
  Borrowings.

  	
  29

  
	
  SECTION 2.03. Requests for
  Syndicated Borrowings.

  	
  30

  
	
  SECTION 2.04. Competitive Bid
  Procedure.

  	
  33

  
	
  SECTION 2.05. Swingline Loans

  	
  36

  
	
  SECTION 2.06. Letters of Credit.

  	
  37

  
	
  SECTION 2.07. Funding of
  Borrowings.

  	
  43

  
	
  SECTION 2.08. Interest
  Elections.

  	
  44

  
	
  SECTION 2.09. Termination,
  Reduction and Increase of the Commitments.

  	
  46

  
	
  SECTION 2.10. Repayment of
  Loans; Evidence of Debt.

  	
  48

  
	
  SECTION 2.11. Prepayment of
  Loans.

  	
  50

  
	
  SECTION 2.12. Fees.

  	
  51

  
	
  SECTION 2.13. Extension of
  Commitment Termination Date.

  	
  52

  
	
  SECTION 2.14. Interest.

  	
  54

  
	
  SECTION 2.15. Alternate Rate of
  Interest

  	
  55

  
	
  SECTION 2.16. Increased Costs.

  	
  55

  
	
  SECTION 2.17. Break Funding
  Payments

  	
  57

  
	
  SECTION 2.18. Taxes.

  	
  57

  
	
  SECTION 2.19. Payments
  Generally; Pro Rata Treatment; Sharing of Set-offs.

  	
  60

  
	
  SECTION 2.20. Mitigation
  Obligations; Replacement of Lenders.

  	
  63

  
	
  SECTION 2.21. Designation of Subsidiary
  Obligors.

  	
  64

  
	
   

  	
   

  
	
  ARTICLE III REPRESENTATIONS AND
  WARRANTIES

  	
  67

  
	
   

  	
   

  
	
  SECTION 3.01. Organization;
  Powers

  	
  67

  
	
  SECTION 3.02. Authorization;
  Enforceability

  	
  67

  
	
  SECTION 3.03. Governmental
  Approvals; No Conflicts

  	
  68

  
	
  SECTION 3.04. Financial
  Condition; No Material Adverse Change.

  	
  68

  
	
  SECTION 3.05. Properties.

  	
  68

  
	
  SECTION 3.06. Litigation and
  Environmental Matters.

  	
  68

  
	
  SECTION 3.07. Investment and
  Holding Company Status

  	
  69

  
	
  SECTION 3.08. Taxes

  	
  69

  
	
  SECTION 3.09. ERISA

  	
  69

  



 


- i -





















 


	
  SECTION 3.10. Disclosure

  	
  69

  
	
  SECTION 3.11. Use of Credit

  	
  69

  
	
  SECTION 3.12. Representations
  and Warranties of Certain Subsidiary Obligors

  	
  70

  
	
   

  	
   

  
	
  ARTICLE IV CONDITIONS

  	
  70

  
	
   

  	
   

  
	
  SECTION 4.01. Effective Date

  	
  70

  
	
  SECTION 4.02. Each Credit Event

  	
  72

  
	
   

  	
   

  
	
  ARTICLE V AFFIRMATIVE COVENANTS

  	
  72

  
	
   

  	
   

  
	
  SECTION 5.01. Financial
  Statements; Ratings Change and Other Information

  	
  72

  
	
  SECTION 5.02. Notices of
  Material Events

  	
  74

  
	
  SECTION 5.03. Existence; Conduct
  of Business

  	
  74

  
	
  SECTION 5.04. Taxes and Other
  Obligations

  	
  75

  
	
  SECTION 5.05. Maintenance of
  Properties; Insurance

  	
  75

  
	
  SECTION 5.06. Books and Records;
  Inspection Rights

  	
  75

  
	
  SECTION 5.07. Compliance with
  Laws and Obligations

  	
  75

  
	
  SECTION 5.08. Use of Proceeds
  and Letters of Credit

  	
  75

  
	
  SECTION 5.09. Governmental
  Authorizations

  	
  75

  
	
   

  	
   

  
	
  ARTICLE VI NEGATIVE COVENANTS

  	
  76

  
	
   

  	
   

  
	
  SECTION 6.01. Liens

  	
  76

  
	
  SECTION 6.02. Mergers,
  Consolidations, Etc.

  	
  77

  
	
  SECTION 6.03. Dispositions

  	
  77

  
	
  SECTION 6.04. Transactions with
  Affiliates

  	
  77

  
	
  SECTION 6.05. Leverage Ratio

  	
  77

  
	
   

  	
   

  
	
  ARTICLE VII EVENTS OF DEFAULT

  	
  78

  
	
   

  	
   

  
	
  ARTICLE VIII THE ADMINISTRATIVE
  AGENT

  	
  80

  
	
   

  	
   

  
	
  ARTICLE IX GUARANTEE

  	
  83

  
	
   

  	
   

  
	
  SECTION 9.01. The Guarantee

  	
  83

  
	
  SECTION 9.02. Obligations
  Unconditional

  	
  83

  
	
  SECTION 9.03. Reinstatement

  	
  84

  
	
  SECTION 9.04. Subrogation

  	
  84

  
	
  SECTION 9.05. Remedies

  	
  85

  
	
  SECTION 9.06. Instrument for the
  Payment of Money

  	
  85

  
	
  SECTION 9.07. Continuing
  Guarantee

  	
  85

  
	
   

  	
   

  
	
  ARTICLE X MISCELLANEOUS

  	
  85

  



 


- ii
-





















 


	
  SECTION 10.01. Notices

  	
  85

  
	
  SECTION 10.02. Waivers;
  Amendments.

  	
  86

  
	
  SECTION 10.03. Expenses;
  Indemnity; Damage Waiver.

  	
  88

  
	
  SECTION 10.04. Successors and
  Assigns.

  	
  89

  
	
  SECTION 10.05. Survival

  	
  92

  
	
  SECTION 10.06. Counterparts;
  Integration; Effectiveness

  	
  92

  
	
  SECTION 10.07. Severability

  	
  92

  
	
  SECTION 10.08. Right of Setoff

  	
  93

  
	
  SECTION 10.09. Governing Law;
  Jurisdiction; Judicial Proceedings; Etc.

  	
  93

  
	
  SECTION 10.10. WAIVER OF JURY
  TRIAL

  	
  94

  
	
  SECTION 10.11. Judgment
  Currency

  	
  94

  
	
  SECTION 10.12. Headings

  	
  95

  
	
  SECTION 10.13. Confidentiality

  	
  95

  
	
  SECTION 10.14. Termination of
  Commitments under Existing Credit Agreement

  	
  96

  
	
  SECTION 10.15. USA PATRIOT Act

  	
  96

  
	
  SECTION 10.16. Waiver of
  Immunity.

  	
  96

  
	
  SECTION 10.17. Appointment of
  Company as Agent

  	
  96

  



 


 


	
  SCHEDULE 1.01A

  	
  -

  	
  Commitments

  
	
  SCHEDULE 1.01B

  	
  -

  	
  Approving Issuing Lenders

  
	
  SCHEDULE 1.01C

  	
  -

  	
  Mandatory Costs

  
	
  SCHEDULE 2.06(l)

  	
  -

  	
  Existing Letters of Credit

  
	
  SCHEDULE 3.06(a)

  	
  -

  	
  Litigation

  
	
  SCHEDULE 3.06(b)

  	
  -

  	
  Environmental Matters

  
	
  SCHEDULE 6.01

  	
  -

  	
  Liens

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  A

  	
  -

  	
  Form of
  Assignment and Assumption

  
	
  EXHIBIT
  B-1

  	
  -

  	
  Form of
  Subsidiary Account Party Designation Letter

  
	
  EXHIBIT
  B-2

  	
  -

  	
  Form of
  Subsidiary Borrower Designation Letter

  
	
  EXHIBIT
  C

  	
  -

  	
  Form of
  Opinion of Counsel to the Obligors

  
	
  EXHIBIT
  D

  	
  -

  	
  Form of
  Opinion of Special New York Counsel to JPMCB

  
	
  EXHIBIT
  E

  	
  -

  	
  Form of
  Process Agent Acceptance Letter

  
	
  EXHIBIT
  F

  	
  -

  	
  Form of
  Termination Letter

  
					



 


- iii -





















 


CREDIT
AGREEMENT dated as of April 29, 2005, between BRUNSWICK CORPORATION, certain
SUBSIDIARIES of Brunswick Corporation that shall be SUBSIDIARY ACCOUNT PARTIES
and/or SUBSIDIARY BORROWERS party hereto, the LENDERS party hereto and JPMORGAN
CHASE BANK, N.A., as Administrative Agent.


 


The
Company (as hereinafter defined) has requested that the Lenders (as so defined)
make loans and extend credit to the Company and certain of its designated Subsidiaries
in an aggregate initial principal or face amount not exceeding $650,000,000 at
any one time outstanding in U.S. dollars and other agreed currencies.  The Lenders are prepared to extend such
credit upon the terms and conditions hereof, and, accordingly, the parties
hereto agree as follows:


 


ARTICLE I



DEFINITIONS


 


SECTION 1.01.  Defined Terms.  As used in this Agreement, the following terms
have the meanings specified below:


 


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


 


“Account
Party” means any of the Company and the Subsidiary Account Parties, as the
context may require, and “Account Parties” means all of the foregoing.


 


“Additional
Commitment Lender” has the meaning set forth in Section 2.13(b).


 


“Additional
Margin” means 0.10%.


 


“Adjusted
Eurocurrency Rate” means, for the Interest Period for any Syndicated
Eurocurrency Borrowing, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the Eurocurrency Rate for
such Interest Period multiplied by (other than in the case of any Loan
made to a Foreign Subsidiary Borrower) (b) the Statutory Reserve Rate for
such Interest Period, plus (c) if applicable, as reasonably
determined by the Administrative Agent in accordance with Schedule 1.01C,
the Mandatory Costs.


 


“Administrative
Agent” means JPMCB, in its capacity as administrative agent for the Lenders
hereunder.


 


“Administrative
Agent’s Account” means, for each Currency, an account in respect of such
Currency designated by the Administrative Agent in a notice to the Company, the
relevant Obligor (if other than the Company) and the Lenders.


 


Credit Agreement


 





















 


- 2 -


 


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


 


“Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified; provided that,
notwithstanding the foregoing, the BAC Joint Venture shall be deemed an
Affiliate of the Company and its Subsidiaries.


 


“Agreed
Foreign Currency” means, at any time, (a) Pounds Sterling, (b) euro
and (c) (i) with respect to the denomination of Syndicated Loans
hereunder, any other Foreign Currency agreed to by the Administrative Agent and
each Multicurrency Lender (or, with respect to Syndicated Loans to any Future Foreign
Subsidiary Borrower, each Approving Relevant Lender for such Future Foreign
Subsidiary Borrower) or (ii) with respect to the denomination of any
Letter of Credit, any other Foreign Currency agreed to by the Administrative
Agent and the relevant Issuing Lender, so long as, in respect of any such specified
Currency or other Foreign Currency, at such time (A) such Currency is
dealt with in the London interbank deposit market, (B) such Currency is
freely transferable and convertible into Dollars in the London foreign exchange
market and (C) no central bank or other governmental authorization in the
country of issue of such Currency (including, in the case of the euro, any
authorization by the European Central Bank) is required to permit use of such
Currency (I) by any Lender for making any Loan hereunder and/or to permit the relevant
Borrower to borrow and repay the principal thereof and to pay the interest
thereon or (II) by any Issuing Lender for issuing or making any disbursement
with respect to any Letter of Credit hereunder and/or to permit the relevant
Account Party to reimburse any Issuing Lender for any such disbursement or pay
the interest thereon or to permit any Lender to acquire a participation
interest in any Letter of Credit or make any payment to the Issuing Lender in
consideration therefor, unless in each case such authorization has been
obtained and is in full force and effect.


 


“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
for such day plus 0.50%.  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,
as the case may be.


 


“Applicable
Dollar Percentage” means, with respect to any Dollar Lender, the percentage
of the Total Dollar Sub-Commitment represented by such Dollar Lender’s Dollar
Sub-Commitment; provided that if the Dollar Sub-Commitments have
terminated or expired, the Applicable Dollar Percentages shall be determined
based upon the Total Dollar Sub-Commitment most recently in effect, giving
effect to any assignments.


 


“Applicable
Multicurrency Percentage” means, with respect to any Multicurrency Lender,
the percentage of the Total Multicurrency Sub-Commitment represented by such
Multicurrency Lender’s Multicurrency Sub-Commitment; provided that if
the Multicurrency Sub-Commitments have terminated or expired, the Applicable
Multicurrency Percentages shall be determined based upon the Total
Multicurrency Sub-Commitment most recently in effect, giving effect to any
assignments.


 


Credit Agreement


 





















 


- 3 -


 


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


 


“Applicable
Rate” means, for any day, with respect to any Syndicated Eurocurrency Loan,
or with respect to the facility fees or participation fees in respect of
Letters of Credit payable hereunder, as the case may be, the applicable rate
per annum set forth below under the caption “Eurocurrency Spread”, “Facility
Fee Rate” or “Letter of Credit Rate”, respectively, based upon the ratings by
Moody’s and S&P, respectively, applicable on such date to the Index Debt:


 




	
   

  	
  Index Debt Ratings

  (S&P/Moody’s)

  	
  Eurocurrency

  Spread

  	
  Facility

  Fee Rate

  	
  Letter of

  Credit Rate

  
	
  Category 1



  	
  >
  A / A2

  	
  0.175%

  	
  0.075%

  	
  0.175%

  
	
  Category 2



  	
  >
  A- / A3

  	
  0.270%

  	
  0.080%

  	
  0.270%

  
	
  Category 3



  	
  >
  BBB+ / Baa1

  	
  0.350%

  	
  0.100%

  	
  0.350%

  
	
  Category 4



  	
  >
  BBB / Baa2

  	
  0.425%

  	
  0.125%

  	
  0.425%

  
	
  Category 5



  	
  >
  BBB- / Baa3

  	
  0.550%

  	
  0.150%

  	
  0.550%

  
	
  Category 6



  	
  <
  BBB- / Baa3

  	
  0.700%

  	
  0.200%

  	
  0.700%

  






 


For
purposes of the foregoing, (i) if the ratings established or deemed to
have been established by Moody’s and S&P for the Index Debt shall fall
within different Categories that are one Category apart, the Applicable Rate
shall be determined by reference to the Category of the higher of the two
ratings; (ii) if the ratings established or deemed to have been
established by Moody’s and S&P for the Index Debt shall fall within
different Categories that are more than one Category apart, the Applicable Rate
shall be determined by reference to the Category next below that of the higher
of the two ratings; (iii) if only one of Moody’s and S&P shall have in
effect a rating for the Index Debt, the Applicable Rate shall be determined by
reference to the Category of such rating; (iv) if neither Moody’s nor
S&P shall have in effect a rating for the Index Debt (other than by reason
of the circumstances referred to in the last sentence of this definition), then
the applicable rating shall be determined by reference to Category 6; and (v) if
the ratings established or deemed to have been established by Moody’s and
S&P for the Index Debt shall be changed (other than as a result of a change
in the rating system of Moody’s or S&P), such change shall be effective as
of the date on which it is first announced by the applicable rating agency,
irrespective of when notice of such change shall have been furnished by the Company
to the Administrative Agent and the Lenders pursuant to Section 5.01 or
otherwise.  Each change in the Applicable
Rate shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the
next such change.  If the rating system
of Moody’s or S&P shall change, or if either such


 


Credit Agreement


 





















 


- 4 -


 


rating agency shall cease to be in the business of rating corporate
debt obligations, the Company 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 agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.


 


“Approved
Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions
of credit in the ordinary course of its business and that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.


 


“Approving
Issuing Lender” means (a) as of the Effective Date, for any Foreign
Subsidiary Account Party (if any) under the caption “Foreign Subsidiary Account
Parties” on the signature pages hereof, each Issuing Lender (if any)
specified on Schedule 1.01B as an Approving Issuing Lender for such
Foreign Subsidiary Account Party and (b) thereafter, for any Foreign
Subsidiary that has been designated as a “Subsidiary Account Party” pursuant to
Section 2.21(a), each Issuing Lender (if any) that has evidenced its
willingness to issue Letters of Credit for account of such Foreign Subsidiary
Account Party.


 


“Approving
Relevant Lender” means for any Foreign Subsidiary that has been designated as
a “Subsidiary Borrower” after the Effective Date pursuant to Section 2.21(b),
each Multicurrency Lender (if any) that has evidenced its willingness to make
Syndicated Loans to such Foreign Subsidiary Borrower.


 


“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.


 


“Assuming
Lender” has the meaning set forth in Section 2.09(e).


 


“Attributable
Securitization Indebtedness” means, at any time with respect to an asset
securitization by the Company or any of its Subsidiaries, the principal amount
of Indebtedness which (a) if such asset securitization is structured as a
secured lending agreement, is the principal amount of such Indebtedness under
such agreement or (b) if such asset securitization is structured as a
purchase agreement, would be outstanding at such time under such asset
securitization if it were structured as a secured lending agreement rather than
a purchase agreement.


 


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


 


“BAC
Joint Venture” means Brunswick Acceptance Company L.L.C., a joint venture
company (a majority of the Equity Interest of which is owned by General Electric  Commercial Finance or one of its Subsidiaries
and the remainder thereof by the Company and/or any Subsidiary of the Company).


 


Credit Agreement


 





















 


- 5 -


 


“BAC
Joint Venture Obligations” means any and all agreements, undertakings,
arrangements and other contractual obligations of the Company and its
Subsidiaries to make loans or advances, or guarantee the obligations of, or
purchase or otherwise acquire any capital stock, obligations or other
securities of, make any capital contribution to, or otherwise invest in, the
BAC Joint Venture.


 


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


 


“Borrower”
means any of the Company and the Subsidiary Borrowers, as the context may
require, and “Borrowers” means all of the foregoing (including the
Swingline Borrowers).


 


“Borrowing”
means (a) all ABR Loans made, converted or continued on the same date,
(b) all Syndicated Eurocurrency Loans or Competitive Loans of the same
Class, Type and Currency that have the same Interest Period (or any single
Competitive Loan that does not have the same Interest Period as any other
Competitive Loan of the same Type) or (c) a Swingline Loan.


 


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


 


“Business
Day” means any day (a) on which commercial banks are not authorized or
required by law to close in New York City, (b) if such day relates to a
borrowing of, a payment or prepayment of principal of or interest on, a
continuation or conversion of or into, or the Interest Period for, a
Eurocurrency Borrowing denominated in Dollars (or any notice with respect
thereto), that is also a day on which dealings in deposits denominated in Dollars
are carried out in the London interbank market, (c) if such day relates to a borrowing or
continuation of, a payment or prepayment of principal of or interest on, or the
Interest Period for, any Eurocurrency Borrowing denominated in any Foreign
Currency (other than euro) (or any notice with respect thereto), or to the
issuance or payment under any Letter of Credit denominated in any Foreign
Currency (other than euro) (or any notice with respect thereto), that is also a
day on which commercial banks and the foreign exchange market settle payments
in the Principal Financial Center for such Foreign Currency and/or (d) if
such day relates to a borrowing or continuation of, a payment or prepayment of
principal of or interest on, or the Interest Period for, any Eurocurrency
Borrowing denominated in euro (or any notice with respect thereto), or to the
issuance or payment under any Letter of Credit denominated in euro (or any
notice with respect thereto), that is also a TARGET Day.


 


“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.


 


Credit Agreement


 





















 


- 6 -


 


“Change
in Control” means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Exchange Act and the rules of the SEC thereunder as in
effect on the date hereof), of Equity Interests representing more than 30% of
the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of the Company; (b) with respect to a tender offer (for
which a filing has been made with the SEC which purports to comply with the
requirements of the Exchange Act and the rules of the SEC thereunder as in
effect on the date hereof) made for Equity Interests of the Company, which
tender offer has not been negotiated and approved by the board of directors of
the Company, the earlier of (i) any Business Day during such tender offer
when the Person or group making such tender offer owns, directly or indirectly,
beneficially or of record, and/or has accepted for payment Equity Interests
representing 25% or more of the aggregate voting power represented by the
issued and outstanding Equity Interests of the Company and (ii) three
Business Days before such tender offer is to terminate unless the tender offer
is withdrawn first if the Person or group making such tender offer could own,
by the terms of the tender offer plus any Equity Interests owned by such Person
or group, Equity Interests representing 50% or more of the aggregate voting
power representing by the issued and outstanding Equity Interests of the Company
when such tender offer terminates; (c) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Company by Persons
who were neither (i) nominated by the board of directors of the Company nor
(ii) appointed by directors so nominated; or (d) the acquisition of
direct or indirect Control of the Company by any Person or group.


 


“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 any Issuing Lender (or, for purposes of Section 2.16(b), by any lending
office of such Lender or such Issuing Lender or by such Lender’s or such
Issuing Lender’s holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.


 


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


 


“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
Syndicated Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender’s Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.09(b), (b) increased
from time to time pursuant to Section 2.09(e) or Section 2.13,
and (c) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 10.04 (and the “Commitment” of any
Lender shall be deemed to include its Dollar Sub-Commitment and its Multicurrency
Sub-Commitment, if any).  The initial
amount of each Lender’s Commitment is set forth on Schedule 1.01A, in an
agreement entered into by such Lender pursuant to Section 2.09(e) or
in the


 


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- 7 -


 


Assignment and Assumption pursuant to which such Lender shall have
assumed its Commitment, as applicable. 
The initial aggregate amount of the Total Commitment (including the
Total Dollar Sub-Commitment and the Total Multicurrency Sub-Commitment) is $650,000,000.


 


“Commitment
Increase” has the meaning set forth in Section 2.09(e).


 


“Commitment
Increase Date” has the meaning set forth in Section 2.09(e).


 


“Commitment
Termination Date” means the fifth anniversary of the Effective Date (or, if
such date is not a Business Day, on the immediately preceding Business Day),
subject to extension (in the case of each Lender consenting thereto) as
provided in Section 2.13.


 


“Commitment
Utilization Day” means (a) any day on which the sum of (i) the
total of the aggregate principal amount of outstanding Syndicated Loans
denominated in Dollars plus (ii) the aggregate principal amount of
outstanding Competitive Loans denominated in Dollars plus (iii) the
aggregate principal amount of outstanding Swingline Loans plus (iv) the
total LC Exposure equals or exceeds 50% of the total Commitments and (b) any
day following the termination of the Commitments on which any Loans are
outstanding.


 


“Company”
means Brunswick Corporation, a Delaware corporation.


 


“Competitive”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans constituting such Borrowing, are made pursuant to Section 2.04.


 


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


 


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


 


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


 


“Competitive
Bid Request” means a request by the Company or any Subsidiary Borrower for
Competitive Bids in accordance with Section 2.04.


 


“Consent
Date” has the meaning set forth in Section 2.13(a).


 


“Consolidated
EBITDA” means, for any period, the sum, for the Company and its Subsidiaries
(determined on a consolidated basis without duplication in accordance with
GAAP), of the following:  (a) Consolidated
Net Income for such period plus (b) without duplication and to the
extent deducted in determining such Consolidated Net Income, the sum of (i) Consolidated
Interest Expense for such period, (ii) income tax expense for such period,
(iii) all amounts


 


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- 8 -


 


attributable to depreciation and amortization for such period and (iv) all
non-cash charges to the extent deducted in determining Consolidated Net Income,
and minus (c) without duplication and to the extent included in
determining such Consolidated Net Income, any non-cash gains for such
period.  For the purposes of calculating
Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a
“Reference Period”) pursuant to any determination of the Leverage Ratio,
if during such Reference Period the Company or any Subsidiary shall have made a
Material Acquisition, Consolidated EBITDA for such Reference Period shall be
calculated after giving pro  forma effect thereto as if such
Material Acquisition occurred on the first day of such Reference Period.  As used in this definition, “Material
Acquisition” means any acquisition of property or series of related
acquisitions of property that (I) constitutes assets comprising all or
substantially all of an operating unit of a business or constitutes all or
substantially all of the Equity Interests of a Person and (II) involves the
payment of consideration by the Company and its Subsidiaries in excess of $50,000,000.


 


“Consolidated Interest Expense” means, for
any period, for the Company and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), all interest in respect of
Indebtedness (including the interest component of any payments in respect of
Capital Lease Obligations) accrued or capitalized during such period (whether
or not actually paid during such period).


 


“Consolidated Net
Income” means, for any period, the net income or loss of the Company and
its Subsidiaries (determined on a consolidated basis in accordance with GAAP)
for such period; provided that there shall be excluded (a) the
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Company or is merged into or consolidated with the Company or
any of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary of the Company) in which the Company or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Company or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of
any Subsidiary of the Company to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or any organizational or governing documents, any law, treaty, rule or
regulation or any determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to such Subsidiary.


 


“Consolidated Tangible
Assets” means, as of any date, the aggregate of all assets of the Company and
its Subsidiaries (determined on a consolidated basis in accordance with GAAP)
after deducting related depreciation, amortization and other valuation reserves
and excluding (a) any capital write-ups resulting from reappraisals of
assets or of other investments after December 31, 2004 (other than a
write-up of any assets constituting part of the assets and business of another
Person made in connection with the acquisition, direct or indirect, of the
assets and business of such other Person) except as permitted in accordance
with GAAP, (b) treasury stock and (c) patent and trademark rights,
goodwill, unamortized discounts and expenses and any other intangible items,
all in accordance with GAAP, in each case as shown in the consolidated
financial statements of the Company and its Subsidiaries for the most recent
fiscal quarter ended at least 30 days prior to such date.


 


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- 9 -


 


“Consolidated Total
Indebtedness” means, as of any date, without duplication, the sum of (a) Indebtedness
for Borrowed Money (determined
on a consolidated basis without duplication in accordance with GAAP) as
of such date plus (b) Contingent Obligations as of such date to the
extent that such Contingent Obligations exceed in the aggregate $75,000,000 (but
without duplication of any amounts in respect of such Contingent Obligations
that are deducted in determining Consolidated EBITDA for the relevant period).


 


“Contingent
Obligations” means (a) any agreement, undertaking or arrangement by
which the Company or any Restricted Subsidiary assumes, guarantees, endorses
(excluding endorsement of negotiable instruments for collection in the ordinary
course of business), contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes liable upon, any Indebtedness of any Person
(other than the Company or any Restricted Subsidiary), or agrees to maintain
the net worth or working capital or other financial condition of any such
Person or otherwise assures any creditor of any such Person against loss and (b) any
take-or-pay contract to which the Company or any Restricted Subsidiary is a
party.  Notwithstanding the foregoing,
the following shall not be deemed to be Contingent Obligations: (x) inventory
repurchase and recourse obligations of the Company and its Restricted
Subsidiaries incurred in the ordinary course of business and as described in
the Company’s annual audited consolidated financial statements; (y) all
contingent obligations of the Company and its Restricted Subsidiaries as an
account party or applicant in respect of standby letters of credit or surety
bonds; and (z) the BAC Joint Venture Obligations.  The amount of any Contingent Obligation
shall, as of any date, be equal to the amount of the obligation so guaranteed
or otherwise supported on such date; provided that, if the liability of
the Company or any Restricted Subsidiary extending such guaranty or support is
limited with respect thereto to an amount less than the obligations guaranteed
or supported, or is limited to recourse against a particular asset or assets of
the Company or such Restricted Subsidiary, the amount of the corresponding
Contingent Obligation shall be limited (i) in the case of a guaranty or
other support limited by amount, to such lesser amount, or (ii) in the
case of a guaranty or other support limited by recourse to a particular asset
or assets, to the higher of (A) the fair market value of such asset or
assets as of such date and (B) the value at which such asset or assets
would, in conformity with GAAP, be reflected on, or valued for the purposes of
preparing, a consolidated balance sheet of the Company or such Restricted
Subsidiary as of such date.


 


“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is bound.


 


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


 


“Credit
Exposure” means, with respect to any Lender at any time, the sum of the
Dollar Amount of such Lender’s Syndicated Loans, LC Exposure and Swingline
Exposure at such time.


 


“Currency”
means the lawful currency of any country.


 


Credit Agreement


 





















 


- 10 -


 


“Currency
Valuation Notice” has the meaning set forth in Section 2.11(b).


 


“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.


 


“Designation
Letter” means any of the Subsidiary Account Party Designation Letters and
the Subsidiary Borrower Designation Letters, as the context requires, and “Designation
Letters” means all of the foregoing.


 


“Disposition”
means any sale, lease, license, transfer, assignment or other disposition of
all or any portion of the business, assets, rights, revenues or property, real,
personal or mixed, tangible or intangible, of the Company or any of its
Subsidiaries.


 


“Dollar
Amount” means (a) with respect to any Loan or Borrowing, (i) if
such Loan or Borrowing is denominated in Dollars, the outstanding principal
amount thereof and (ii) if such Loan or Borrowing is denominated in a
Foreign Currency, the Dollar Equivalent of the outstanding principal amount
thereof, (b) with respect to any Letter of Credit, (i) if such Letter
of Credit is denominated in Dollars, the undrawn amount thereof and (ii) if
such Letter of Credit is denominated in a Foreign Currency, the Dollar
Equivalent of the undrawn amount thereof and (c) with respect to any LC
Disbursement, (i) if such LC Disbursement is denominated in Dollars, the
amount thereof and (ii) if such LC Disbursement is denominated in a Foreign
Currency, the Dollar Equivalent of such LC Disbursement.


 


“Dollar
Credit Exposure” means, with respect to any Dollar Lender at any time, the
sum of the outstanding principal amount of such Dollar Lender’s Dollar Loans
and its Dollar LC Exposure and Swingline Exposure at such time.


 


“Dollar
Equivalent” means:


 


(a)  with respect to any Borrowing or Loan
denominated in any Foreign Currency, the amount of Dollars that would be
required to purchase an amount of such Foreign Currency equal to the outstanding
principal amount of such Borrowing or Loan if such purchase were made (i) in
the case of any determination made on any Quarterly Date under Section 2.11(b),
on such Quarterly Date, (ii) in the case of any determination made upon
receipt by the Administrative Agent of any Currency Valuation Notice under Section 2.11(b),
(A) if such Currency Valuation Notice is received by the Administrative
Agent prior to 11:00 a.m., New York City time, on a Business Day, on such
Business Day or (B) if such Currency Valuation Notice is otherwise
received, on the first Business Day after such Currency Valuation Notice is
received, (iii) in the case of any determination made by the
Administrative Agent under Section 2.03(c), as of the Business Day that
the Borrowing Request is received by the Administrative Agent, (iv) in the
case of any redenomination under the last sentence of Section 2.19(a)(iii),
on the date of such redenomination or (v) in any other case, on the date
two Business Days prior to the date of such Borrowing or Loan, determined in
accordance with the last sentence of the definition of the term “Interest
Period”;


 


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- 11 -


 


(b)  with respect to any Letter of Credit
denominated in any Foreign Currency, the amount of Dollars that would be
required to purchase an amount of such Foreign Currency equal to the undrawn
amount of such Letter of Credit if such purchase were made (i) in the case
of any determination made on any Quarterly Date under Section 2.11(b), on
such Quarterly Date, (ii) in the case of any determination made upon
receipt by the Administrative Agent of any Currency Valuation Notice under Section 2.11(b),
(A) if such Currency Valuation Notice is received by the Administrative
Agent prior to 11:00 a.m., New York City time, on a Business Day, on such
Business Day or (B) if such Currency Valuation Notice is otherwise
received, on the first Business Day after such Currency Valuation Notice is
received, (iii) in the case of any determination made by the Administrative
Agent under Section 2.03(c), as of the Business Day that the Borrowing
Request is received by the Administrative Agent or (iv) in any other case,
on the date two Business Days prior to the date of issuance of (or, if later,
on the date of any Issuing Lender’s LC Disbursement with respect to) such
Letter of Credit;


 


(c)  with respect to any LC Disbursement
denominated in any Foreign Currency, the amount of Dollars that would be
required to purchase an amount of such Foreign Currency equal to the amount of
such LC Disbursement if such purchase were made (i) in the case of any
determination of the amount which any Lender is obligated to pay to the
applicable Issuing Lender pursuant to Section 2.06(e) in respect of
any such LC Disbursement, on the date of the request by such Issuing Lender for
such payment or, if earlier, on the date of any redenomination under the last
sentence of Section 2.19(a)(iii) or (ii) in any other case, on
the date of such LC Disbursement; and


 


(d)  with respect to any reimbursement obligation
of any Account Party denominated in any Foreign Currency that is redenominated
pursuant to the last sentence of Section 2.19(a)(iii), the amount of
Dollars that would be required to purchase an amount of such Foreign Currency
equal to the amount of such reimbursement obligation (before giving effect to
such redenomination) if such purchase were made on the date of such
redenomination,


 


in each case based upon
the spot selling rate at which the Person serving as the Administrative Agent
offers to sell such Foreign Currency for Dollars in the London foreign exchange
market at approximately 11:00 a.m., London time, for delivery two Business
Days later.


 


“Dollar
LC Exposure” means, at any time, the sum of (a) the aggregate amount
of Dollar Letters of Credit undrawn at such time plus (b) the aggregate
amount of all LC Disbursements in respect of such Letters of Credit that have
not yet been reimbursed by or on behalf of any Obligor at such time.  The Dollar LC Exposure of any Lender at any
time shall be its Applicable Dollar Percentage of the total Dollar LC Exposure
at such time.


 


“Dollar
Lender” means (a) on the Effective Date, the Lenders having Dollar
Sub-Commitments on Schedule 1.01A hereto under the heading “Dollar Lenders”
and (b) thereafter, the Lenders from time to time holding Loans made
pursuant to Dollar Sub-Commitments or holding Dollar Sub-Commitments, after
giving effect to any assignments thereof permitted by Section 10.04(b).


 


Credit Agreement


 





















 


- 12 -


 


“Dollar
Letters of Credit” means Letters of Credit that utilize the Dollar
Sub-Commitments.


 


“Dollar
Loan” means a Loan denominated in Dollars made by a Lender under its Dollar
Sub-Commitment.


 


“Dollars”
or “$” refers to lawful money of the United States of America.


 


“Dollar Sub-Commitment”
means, as to each Dollar Lender, the obligation of such Dollar Lender to make
Syndicated Loans and to acquire participations in Letters of Credit hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s
Dollar Credit Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.09 and (b) 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 Dollar
Sub-Commitment is set forth on Schedule 1.01A, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Dollar
Sub-Commitment, as applicable. The initial aggregate amount of the Total Dollar
Sub-Commitment is $500,000,000.


 


“Domestic
Subsidiary Account Party” means any Subsidiary Account Party other than a
Foreign Subsidiary Account Party.


 


“Domestic
Subsidiary Borrower” means any Subsidiary Borrower other than a Foreign
Subsidiary Borrower.


 


“Effective
Date” means the date on which the conditions specified in Section 4.01
are satisfied (or waived in accordance with Section 10.02).


 


“Environmental
Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, or to the
management, release or threatened release of any Hazardous Material.


 


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


 


“Equity
Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person, and any warrants, options or
other rights entitling the holder thereof to purchase or acquire any such
equity interest.


 


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- 13 -


 


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


 


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


 


“ERISA
Event” means (a) any “reportable event”, as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an “accumulated funding deficiency” (as
defined in Section 412 of the Code or Section 302 of ERISA), whether
or not waived; (c) the filing pursuant to Section 412(d) of the
Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by the
Company or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan other than PBGC premiums due but
not delinquent under Section 4007 of ERISA; (e) the receipt by the
Company or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Company or any
of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt
by the Company or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.


 


“Eurocurrency”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans constituting such Borrowing, are bearing interest at a rate
determined by reference to (a) in the case of a Syndicated Loan or a
Syndicated Borrowing, the Adjusted Eurocurrency Rate, or (b) in the case
of a Competitive Loan or a Competitive Borrowing, the Eurocurrency Rate.


 


“Eurocurrency
Rate” means, for the Interest Period for any Eurocurrency Borrowing
denominated in any Currency, the rate appearing on the Screen at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as LIBOR for deposits denominated in such Currency with a
maturity comparable to such Interest Period. 
In the event that such rate is not available on the Screen at such time
for any reason, then the Eurocurrency Rate for such Interest Period shall be
the rate at which deposits in such Currency in the amount of $5,000,000 (or, in
the case of any Eurocurrency Borrowing in any Foreign Currency, the Foreign
Currency Equivalent thereof, appropriately rounded) and for a maturity
comparable to such Interest Period are offered by the principal London office
of the Person serving as 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.


 


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- 14 -


 


“euro”
means the single currency of Participating Member States of the European Union,
which shall be an Agreed Foreign Currency and a Foreign Currency under this
Agreement.


 


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


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to
time.


 


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender or any Issuing
Lender or any other recipient of any payment to be made by or on account of any
obligation of any Obligor hereunder or under any other Loan Document:


 


(a) 
income or franchise taxes imposed on (or measured by) such recipient’s net
income by the United States of America (or any political subdivision or state
thereof) (each a “U.S. Taxing Authority”), 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 or any Issuing Lender, in which its
applicable lending office is located;


 


(b) 
any branch profits taxes imposed by any U.S. Taxing Authority or any similar
tax imposed by any other jurisdiction described in clause (a) above;


 


(c) 
in the case of a Dollar Lender or an Issuing Lender under the Dollar
Sub-Commitments or in the case of a Multicurrency Lender or an Issuing Lender
under the Multicurrency Sub-Commitments with respect to the Company or any
Domestic Subsidiary (other than an assignee thereof pursuant to a request by
the Company under Section 2.20(b)), any withholding tax that is imposed by
any U.S. Taxing Authority on payments by the Company or any Domestic Subsidiary
from an office within the United States of America to such Lender to the extent
such tax (i) is in effect and would apply as of the date such Lender
becomes a party to this Agreement or (ii) relates to such payments that
would be made to any new applicable lending office designated by such Lender
and is in effect and would apply as of the time of such designation;


 


(d) 
in the case of a Multicurrency Lender under the Multicurrency Sub-Commitments
with respect to any Initial Foreign Subsidiary Borrower or in the case of an
Approving Issuing Lender under the Multicurrency Sub-Commitments with respect
to any Foreign Subsidiary Account Party party hereto on the Effective Date
(other than an assignee thereof pursuant to a request by the Company under Section 2.20(b)),
any withholding tax that is imposed by the jurisdiction of organization of such
Initial Foreign Subsidiary Borrower or Foreign Subsidiary Account Party, as the
case may be, (or any political subdivision thereof) on payments by such Initial
Foreign Subsidiary Borrower or Foreign Subsidiary Account Party, as the case
may be, from an office within such jurisdiction to such Lender to the extent
such tax (i) is in effect and would apply as of the date such Lender
becomes a party to this Agreement or (ii) relates to such payments that
would be made to any new applicable lending office designated by such Lender
and is in effect and would apply as of the time of such designation;


 


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- 15 -


 


(e) 
in the case of an Approving Relevant Lender under the Multicurrency
Sub-Commitment with respect to any Future Foreign Subsidiary Borrower (for
Loans in any Foreign Currency agreed to by such Lender) or in the case of an
Approving Issuing Lender under the Multicurrency Sub-Commitment with respect to
any Foreign Subsidiary Account Party that shall become a party hereto after the
Effective Date (for Letters of Credit in any Foreign Currency agreed to by such
Lender) (other than an assignee thereof pursuant to a request by the Company
under Section 2.20(b)), any withholding tax that is imposed by the
jurisdiction of organization of such Future Foreign Subsidiary Borrower or such
Foreign Subsidiary Account Party, as the case may be, (or any political
subdivision thereof) on payments by such Future Foreign Subsidiary Borrower or
Foreign Subsidiary Account Party, as the case may be, from an office within
such jurisdiction to such Lender to the extent such tax (i) is in effect
and would apply as of the date such Future Foreign Subsidiary Borrower or
Foreign Subsidiary Account Party, as the case may be, shall have been approved
by such Approving Relevant Lender as a Foreign Subsidiary Borrower or by such
Approving Issuing Lender as a Foreign Subsidiary Account Party, as the case may
be, hereunder or (ii) (at any time following such approval) relates to
payments that would be made to any new applicable lending office designated by
such Lender and is in effect and would apply as of the time of such
designation; or


 


(f) 
any withholding tax that is attributable to such Lender’s failure to comply
with Section 2.18(e) or Section 2.18(g), as applicable, except (i) as
a result of any Change in Law, (ii) in the case of clause (c), (d) or
(e) above, to the extent that such withholding tax shall have resulted
from the making of any payment by a Borrower to a location other than the
office designated by the Administrative Agent or the relevant Lender for the
receipt of payments of the applicable type from such Borrower or (iii) to
the extent the relevant Lender (or its assignee) was entitled, at the time of
designation of a new lending office (or at the time of assignment) to receive
additional amounts from the relevant Borrower with respect to such withholding
tax pursuant to Section 2.18(a).


 


“Existing
Commitment Termination Date” has the meaning set forth in Section 2.13(a).


 


“Existing
Credit Agreement” means the Credit Agreement dated as of November 15,
2002 among the Company, the Subsidiaries party thereto, the lenders party
thereto and JPMCB (formerly known as JPMorgan Chase Bank), as Administrative
Agent, as amended and in effect on the date hereof.


 


“Existing
Letters of Credit” has the meaning set forth in Section 2.06(l).


 


“Extension
Date” has the meaning set forth in Section 2.13(a).


 


“Extension
Request” has the meaning set forth in Section 2.13(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


 


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- 16 -


 


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.


 


“Financial
Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Company.


 


“Fixed
Rate” means, with respect to any Competitive Loan (other than a Competitive
Eurocurrency Loan), the fixed rate of interest per annum specified by the
Lender making such Competitive Loan in its related Competitive Bid.  When used in reference to any Loan or
Borrowing, “Fixed Rate” refers to whether such Loan, or the Loans
constituting such Borrowing, are Competitive Loans bearing interest at a Fixed
Rate.


 


“Foreign
Currency” means at any time any Currency other than Dollars.


 


“Foreign
Currency Equivalent” means, with respect to any amount in Dollars, the
amount of any Foreign Currency that could be purchased with such amount of
Dollars using the reciprocal of the foreign exchange rate(s) specified in the
definition of the term “Dollar Equivalent”, as determined by the Administrative
Agent.


 


“Foreign
Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America or any State thereof.


 


“Foreign
Subsidiary Account Party” means any Subsidiary Account Party that is a
Foreign Subsidiary.


 


“Foreign
Subsidiary Borrower” means any Initial Foreign Subsidiary Borrower or
Future Foreign Subsidiary Borrower.


 


“Future
Foreign Subsidiary Borrower” means any Foreign Subsidiary of the Company
designated as a Subsidiary Borrower after the Effective Date pursuant to Section 2.21(b).


 


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


 


“Governmental
Authority” means the government of the United States of America, or of 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.


 


“Guaranteed
Obligations” has the meaning set forth in Section 9.01.


 


“Guarantor”
means the Company.


 


Credit Agreement


 





















 


- 17 -


 


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


 


“Immaterial
Subsidiary” means a Subsidiary of the Company (other than a Subsidiary
Obligor) that provides less than 1% of the consolidated revenues of, or holds
less than 1% of the consolidated assets of, the Company and its Subsidiaries on
a consolidated basis determined in accordance with GAAP.


 


“Increasing
Lender” has the meaning set forth in Section 2.09(e).


 


“Indebtedness”
means, without duplication, (a) with respect to any Person (including the Company
and its Restricted Subsidiaries), all indebtedness, liabilities and other
monetary obligations of such Person for (i) obligations for borrowed money
or evidenced by bonds, debentures, notes or similar instruments, (ii) obligations
representing the deferred purchase price of property or services other than
accounts payable arising in connection with the purchase of inventory on terms
customary in the trade, (iii) Capital Lease Obligations and (iv) obligations
(other than Contingent Obligations) in respect of bankers’ acceptances and (b) with
respect to the Company and its Restricted Subsidiaries, Attributable
Securitization Indebtedness other than Attributable Securitization Indebtedness
arising out of asset securitizations done with the BAC Joint Venture.


 


“Indebtedness
for Borrowed Money” means, without duplication, the sum for the Company and
each of its Restricted Subsidiaries of Indebtedness of such Person described in
clauses (a)(i), (a)(iii) and (b) of the definition of “Indebtedness”,
but shall exclude (a) notes, bills and checks presented in the ordinary
course of business by such Person to banks for collection or deposit and (b) with
respect to the Company and its Restricted Subsidiaries, all obligations of the Company
and its Restricted Subsidiaries of the character referred to in this definition
to the extent owing to the Company or any of its Restricted Subsidiaries.


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Index
Debt” means senior, unsecured, long-term indebtedness for borrowed money of
the Company that is not guaranteed by any other Person or subject to any other
credit enhancement.


 


“Initial
Foreign Subsidiary Borrower” means any Subsidiary Borrower on the Effective
Date that is a Foreign Subsidiary.


 


“Interest
Election Request” means a request by any Borrower to convert or continue a
Syndicated Borrowing in accordance with Section 2.08.


 


“Interest
Payment Date” means (a) with respect to any ABR Loan (other than
a Swingline Loan), each Quarterly Date, (b) with respect to any
Eurocurrency Loan, the last day of each Interest Period therefor and, in the
case of any Interest Period for a Eurocurrency Loan of more than three months’
duration, each day prior to the last day of such Interest Period that


 


Credit Agreement


 





















 


- 18 -


 


occurs at three-month intervals after the first day of such Interest
Period, (c) with respect to any Fixed Rate Loan, the last day of the
Interest Period therefor and, in the case of any Interest Period for a Fixed
Rate Loan 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 90-day intervals 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 Loan
Borrowing and (d) with respect to any Swingline Loan, the day that such
Loan is required to be repaid.


 


“Interest
Period” means:


 


(a)  for any Syndicated Eurocurrency Loan or
Borrowing, the period commencing on the date of such Loan or Borrowing and
ending (i) fourteen days thereafter or (ii) on the numerically
corresponding day in the calendar month that is one, two, three, six or (with
the consent of each Lender making a Loan as part of any such Borrowing) nine or
twelve months thereafter, or, with respect to such portion of any Syndicated
Eurocurrency Loan or Borrowing denominated in a Foreign Currency that is scheduled
to be repaid on the Commitment Termination Date, a period of less than one
month’s duration commencing on the date of such Loan or Borrowing and ending on
the Commitment Termination Date, as specified in the applicable Borrowing
Request or Interest Election Request;


 


(b)  for any Competitive Eurocurrency Loan or
Borrowing, the period commencing on the date of such Loan or Borrowing and
ending fourteen days thereafter, on the numerically corresponding day in the
calendar month that is one, two, three, six, nine or twelve months thereafter
or, with respect to such portion of any Competitive Eurocurrency Loan or
Borrowing denominated in a Foreign Currency that is scheduled to be repaid on
the Commitment Termination Date a period of less than one month’s duration
commencing on the date of such Loan or Borrowing and ending on the Commitment
Termination Date, as specified in the applicable Competitive Bid Request; and


 


(c)  for any Fixed Rate Loan or Borrowing, the
period (which shall not be less than seven days or more than 360 days)
commencing on the date of such Loan or 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 Eurocurrency 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 Eurocurrency Borrowing (other than an Interest Period
pertaining to a Eurocurrency Borrowing denominated in a Foreign Currency that
ends on the Commitment Termination Date that is permitted to be of less than
one month’s duration as provided in this definition) 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 Loan initially shall be the date on which such Loan is


 


Credit Agreement


 





















 


- 19 -


 


made and, in the case of
a Syndicated Loan, thereafter shall be the effective date of the most recent
conversion or continuation of such Loan, and the date of a Syndicated Borrowing
comprising Loans that have been converted or continued shall be the effective
date of the most recent conversion or continuation of such Loans.


 


“Issuing
Lender” means JPMCB, The Bank of New York, Wells Fargo Bank, National
Association and each other Lender designated by the Company as an “Issuing
Lender” hereunder that has agreed to such designation (and is reasonably
acceptable to the Administrative Agent), each in its capacity as an issuer of
one or more Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.06(j), in each case so long as such Person shall remain
an Issuing Lender hereunder.  Any Issuing
Lender may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of such Issuing Lender, in which case the term “Issuing
Lender” shall include any such Affiliate with respect to Letters of Credit
issued by such Affiliate.


 


“JPMCB”
means JPMorgan Chase Bank, N.A.


 


“LC Disbursement”
means a payment made by any Issuing Lender pursuant to a Letter of Credit.


 


“LC Exposure”
means, as at any time, the sum of the Dollar LC Exposure and the Multicurrency
LC Exposure.


 


“Lenders”
means the Persons listed on Schedule 1.01A and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption or as an
Assuming Lender pursuant to Section 2.09(e) or as an Additional
Commitment Lender pursuant to Section 2.13, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the
term “Lenders” includes the Swingline Lender.


 


“Letter
of Credit” means any standby letter of credit issued or continued pursuant
to this Agreement.


 


“Letter
of Credit Documents” means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments,
guarantees or other documents (whether general in application or applicable
only to such Letter of Credit) governing or providing for (a) the rights
and obligations of the parties concerned or at risk with respect to such Letter
of Credit or (b) any collateral security for any of such obligations, each
as the same may be modified and supplemented and in effect from time to time.


 


“Leverage
Ratio” means, as of any date, the ratio of (a) Consolidated Total
Indebtedness as of such date to (b) Consolidated EBITDA for the period of
four consecutive fiscal quarters ending on or most recently ended prior to such
date.


 


“LIBOR”
means, for any Currency, the rate at which deposits denominated in such
Currency are offered to leading banks in the London interbank market.


 


Credit Agreement


 





















 


- 20 -


 


“Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of
such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.


 


“Loan
Documents” means, collectively, this Agreement, the Letter of Credit
Documents and the Designation Letters.


 


“Loans”
means the loans made by the Lenders to the Borrowers pursuant to this
Agreement.


 


“Local
Time” means (a) with respect to any Loan or Letter of Credit
denominated in or any payment to be made in Dollars, New York City time, (b) with
respect to any Loan or Letter of Credit denominated in or any payment to be
made in any Foreign Currency (other than euro), the local time in the Principal
Financial Center for the currency in which such Loan or Letter of Credit is
denominated or such payment is to be made and (c) with respect to any Loan
or Letter of Credit denominated in or any payment to be made in euro, the local
time in London, England.


 


“Margin
Stock” means “margin stock” within the meaning of Regulations T, U and X of
the Board.


 


“Material
Adverse Effect” means a material adverse effect on (a) the business,
financial condition, prospects or results of operations of the Company and its
Subsidiaries taken as a whole, (b) the ability of the Company to perform
any of its obligations under this Agreement or any of the other Loan Documents
or (c) the rights of or benefits available to the Lenders under this
Agreement or any of the other Loan Documents.


 


“Material
Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit) or Contingent Obligations, or obligations in respect of one or more
Swap Agreements, of any one or more of the Company and its Restricted
Subsidiaries in an aggregate principal amount exceeding $50,000,000.  For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of any Person in
respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that such Person would be required to
pay if such Swap Agreement were terminated at such time.


 


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


 


“Multicurrency
Credit Exposure” means, with respect to any Multicurrency Lender at any
time, the sum of the outstanding principal amount of such Multicurrency Lender’s
Multicurrency Loans and its Multicurrency LC Exposure at such time.


 


“Multicurrency
LC Exposure” means, at any time, the sum of (a) the aggregate Dollar
Amount of all outstanding Multicurrency Letters of Credit undrawn at such time
plus (b) the aggregate amount of all LC Disbursements in respect of such
Letters of Credit that have not yet been reimbursed by or on behalf of any
Obligor at such time.  The Multicurrency
LC


 


Credit Agreement


 





















 


- 21 -


 


Exposure of any Lender at any time shall be its Applicable
Multicurrency Percentage of the total Multicurrency LC Exposure at such time.


 


“Multicurrency
Lender” means (a) on the Effective Date, the Lenders having Multicurrency
Sub-Commitments on Schedule 1.01A hereto under the heading “Multicurrency
Lenders” and (b) thereafter, the Lenders from time to time holding Loans
made pursuant to Multicurrency Sub-Commitments or holding Multicurrency
Sub-Commitments, after giving effect to any assignments thereof permitted by Section 10.04(b).  Unless the context otherwise requires, the
term “Multicurrency Lender” includes the Approving Relevant Lenders.


 


“Multicurrency
Letters of Credit” means Letters of Credit that utilize the Multicurrency
Sub-Commitments.


 


“Multicurrency
Loan” means a Loan denominated in an Agreed Foreign Currency or in Dollars
made by a Lender under its Multicurrency Sub-Commitment.


 


“Multicurrency
Sub-Commitment” means, as to each Multicurrency Lender, the obligation of
such Multicurrency Lender to make Syndicated Loans and to acquire
participations in Letters of Credit hereunder, in each case, denominated in
Dollars or in an Agreed Foreign Currency, expressed as a Dollar amount
representing the Dollar Equivalent of the maximum aggregate amount of such
Lender’s Syndicated Multicurrency Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.09 and (b) 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 Multicurrency Sub-Commitment is set forth on Schedule 1.01A,
or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Multicurrency Sub-Commitment, as applicable.  The initial aggregate amount of the Total
Multicurrency Sub-Commitment is $150,000,000.


 


“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA which is contributed to by either the Company or an ERISA Affiliate.


 


“Non-U.S.
Lender” means any Lender or Issuing Lender that is not a “United States
Person” as defined in Section 7701 of the Code.


 


“Obligor”
means any of the Borrowers, the Account Parties and the Guarantor, as the
context may require, and “Obligors” means all of the foregoing.


 


“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 under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document but excluding
Excluded Taxes.


 


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


 


“Participating
Member State” means any member state of the European Community that adopts
or has adopted the euro as its lawful currency in accordance with the
legislation of the European Union relating to the European Monetary Union.


 


Credit Agreement


 





















 


- 22 -


 


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


 


“Permitted
Encumbrances” means:


 


(a)  Liens imposed by law for taxes, assessments
or governmental charges or levies on property that are not yet due or
thereafter can be paid without penalty or are being contested in compliance
with Section 5.04;


 


(b)  carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s, servicemen’s and other like Liens imposed by law,
arising in the ordinary course of business and securing obligations that are
not overdue by more than 60 days or are being contested in compliance with Section 5.04;


 


(c)  pledges and deposits (including letters of
credit, surety bonds and other escrowed or trust holdings) made in the ordinary
course of business in compliance with workers’ compensation laws, unemployment,
general liability and other insurance, old age pensions and other social
security or retirement benefits, or similar laws or regulations;


 


(d)  Liens incurred over cash deposits and other
investments 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;


 


(e)  judgment liens in respect of judgments that
do not constitute an Event of Default under clause (j) of Article VII;


 


(f)  easements, zoning restrictions, rights-of-way
and similar encumbrances or charges on real property imposed by law or arising
in the ordinary course of business that 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; and


 


(g)  bankers’ liens and rights of setoff arising
by operation of law and contractual rights of setoff or any contractual Liens
or netting rights in favor of the relevant depository institutions in
connection with any cash management services provided to the Company or any of
its Subsidiaries.


 


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


 


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


 


“Pounds
Sterling” means the lawful currency of England.


 


Credit Agreement


 





















 


- 23 -


 


“Prime
Rate” means the rate of interest per annum publicly announced from time to
time by JPMCB 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
Financial Center” means, in the case of any Currency, the principal
financial center in the country of issue of such Currency, as determined by the
Administrative Agent.


 


“Quarterly
Dates” means the last Business Day of March, June, September and December in
each year, the first of which shall be the first such day after the date
hereof.


 


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


 


“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 Commitments representing more
than 50% of the total 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 Loans become due and payable pursuant to Article VII
or the Commitments expire or terminate, “Required Lenders” means,
Lenders having Credit Exposures representing more than 50% of the total Credit
Exposures (computed, in the case of Loans denominated in a Foreign Currency, as
the Dollar Equivalent thereof, as determined by the Administrative Agent) at
such time (and, for purposes of this proviso, the outstanding Competitive Loans
made by any of the Lenders shall be included in their respective Credit
Exposures in determining the Required Lenders).


 


“Restricted
Subsidiary” means any Subsidiary other than each Subsidiary which is a
general partner in a partnership formed to own, lease or operate bowling
centers, provided that notwithstanding the foregoing, the term “Restricted
Subsidiary” shall include any Subsidiary Obligor.


 


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


 


“Screen”
means, for any Currency, the relevant display page for LIBOR for such
Currency (as determined by the Administrative Agent) on the Telerate Service; provided
that, if the Administrative Agent determines that there is no such relevant
display page for LIBOR for such Currency, “Screen” means the relevant
display page for LIBOR for such Currency (as determined by the
Administrative Agent) on the Reuters Monitor Money Rates Service.


 


“SEC”
means the United States Securities and Exchange Commission, together with any
successor agency responsible for the administration and enforcement of the
Securities Act of 1933, as amended from time to time, and the Exchange Act.


 


Credit Agreement


 





















 


- 24 -


 


“Statutory
Reserve Rate” means, for the Interest Period for any Syndicated
Eurocurrency Borrowing, 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 arithmetic mean, taken over each day in such Interest Period, of 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 person serving as Administrative Agent is subject for
eurocurrency funding (currently referred to as “Eurocurrency liabilities” in
Regulation D of the Board).  Such
reserve percentages shall include those imposed pursuant to such
Regulation D.  Eurocurrency 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.


 


“Sub-Commitment”
shall refer, as applicable, to a Dollar Sub-Commitment or a Multicurrency
Sub-Commitment.


 


“Subsidiary”
means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent’s consolidated financial statements if such financial statements
were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held. 
Unless otherwise specified, “Subsidiary” means a Subsidiary of the Company.


 


“Subsidiary
Account Party” means (a) each wholly-owned Subsidiary of the Company that
is listed under the caption “Subsidiary Account Parties” on the signature pages hereof
and (b) each other wholly-owned Subsidiary of the Company that shall
become a Subsidiary Account Party pursuant to Section 2.21(a), in each
case so long as such Subsidiary shall remain a Subsidiary Account Party hereunder.  The term “Subsidiary Account Party”
includes any of the Domestic Subsidiary Account Parties and the Foreign
Subsidiary Account Parties.


 


“Subsidiary
Account Party Designation Letter” means the Subsidiary Account Party
Designation Letter entered into by the Company and a wholly-owned Subsidiary of
the Company pursuant to Section 2.21(a), pursuant to which such Subsidiary
shall (subject to the terms and conditions of Section 2.21) be designated
as a Subsidiary Account Party, substantially in the form of Exhibit B-1
or any other form approved by the Administrative Agent.


 


“Subsidiary
Borrower” means (a) each wholly-owned Subsidiary of the Company that
is listed under the caption “Subsidiary Borrowers” on the signature pages hereof
and (b) each other wholly-owned Subsidiary of the Company that shall
become a Subsidiary Borrower pursuant to Section 2.21(b), in each case so
long as such Subsidiary shall remain a Subsidiary Borrower hereunder.  The term “Subsidiary Borrower”
includes any of the Domestic Subsidiary Borrowers and the Foreign Subsidiary
Borrowers.


 


Credit Agreement


 





















 


- 25 -


 


“Subsidiary
Borrower Designation Letter” means the Subsidiary Borrower Designation
Letter entered into by the Company and a wholly-owned Subsidiary of the Company
pursuant to Section 2.21(b), pursuant to which such Subsidiary shall
(subject to the terms and conditions of Section 2.21) be designated as a
Subsidiary Borrower, substantially in the form of Exhibit B-2 or any
other form approved by the Administrative Agent.


 


“Subsidiary
Obligor” means any of the Subsidiary Borrowers and the Subsidiary Account
Parties, as the context may require, and “Subsidiary Obligors” means all
of the foregoing.


 


“Substantial
Portion” means, with respect to the property of the Company and its
Subsidiaries, such property which (a) represents more than 25% of the
consolidated assets of the Company and its Subsidiaries as would be shown in
the consolidated financial statements of the Company and its Subsidiaries for
the most recent fiscal quarter ended at least 30 days prior to the date when
such determination is made, or (b) is responsible for more than 25% of the
consolidated net sales of the Company and its Subsidiaries as reflected in the
financial statements of the Company and its Subsidiaries for the twelve-month
period ending on the last day of the fiscal quarter referred to in clause (a) above.


 


“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.


 


“Swingline
Borrower” means any of the Company and the Domestic Subsidiary Borrowers,
as the context may require, and “Swingline Borrowers” means all of the
foregoing.


 


“Swingline
Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. 
The Swingline Exposure of any Lender at any time shall be its Applicable
Dollar Percentage of the total Swingline Exposure at such time.


 


“Swingline
Lender” means JPMCB, in its capacity as the lender of Swingline Loans
hereunder.


 


“Swingline
Loan” means a Loan made pursuant to Section 2.05.


 


“Syndicated”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans constituting such Borrowing, are made pursuant to Section 2.01.


 


“TARGET
Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer payment system (or any successor settlement system
as determined by the Administrative Agent) is open for the settlement of
payments in euro.


 


Credit Agreement


 





















 


- 26 -


 


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


 


“Termination
Letter” has the meaning set forth in Section 2.21(d).


 


“Total
Commitment” means, at any time, the aggregate amount of the Commitments as
in effect at such time.


 


“Total Dollar
Sub-Commitment” means, at any time, the aggregate amount of the Dollar
Sub-Commitments as in effect at such time.


 


“Total Multicurrency
Sub-Commitment” means, at any time, the aggregate amount of the
Multicurrency Sub-Commitments as in effect at such time.


 


“Transactions”
means the execution, delivery and performance by the Company and each
Subsidiary Obligor of this Agreement and the other Loan Documents, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder.


 


“2004
10-K” has the meaning set forth in Section 3.06(a).


 


“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans constituting such Borrowing, is
determined by reference to the Adjusted Eurocurrency Rate, the Alternate Base
Rate or, in the case of a Competitive Loan or Borrowing, the Eurocurrency Rate
or a Fixed Rate.


 


“Unused
Multicurrency Commitment Amount” has the meaning set forth in Section 2.03(c).


 


“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined
in Part I of Subtitle E of Title IV of ERISA.


 


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 “Competitive Loan”), by Type
(e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Competitive
Eurocurrency Loan”).  Borrowings also may
be classified and referred to by Class (e.g., a “Competitive Borrowing”),
by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Competitive
Eurocurrency Borrowing”).  Loans and
Borrowings may also be identified by Currency.


 


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


 


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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; Fiscal Year.  Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance 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 any change in the application of
GAAP 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.  To enable the ready and consistent
determination of compliance with the covenants set forth in Article VI,
the Company will not change its fiscal year from a fiscal year consisting of
four fiscal quarters ending on December 31, each fiscal quarter of which
is comprised of three fiscal months consisting of a first fiscal month of four
calendar weeks, a second fiscal month of four calendar weeks and a third fiscal
month of five calendar weeks.


 


SECTION 1.05.  Currencies; Currency Equivalents.  (a)  At any time, any reference in the
definition of the term “Agreed Foreign Currency” or in any other provision of
this Agreement to the Currency of any particular country means the lawful
currency of such country at such time whether or not the name of such Currency
is the same as it was on the date hereof.


 


(b) 
Wherever in this Agreement in connection with a Borrowing or Loan a required
minimum or multiple amount thereof is expressed in Dollars, but such Borrowing
or Loan is denominated in a Foreign Currency, such amount shall be the relevant
Foreign Currency Equivalent of such Dollar amount (rounded to the nearest 1,000
units of such Foreign Currency).


 


(c) 
Each obligation hereunder of any party hereto that is denominated in a Currency
of a country that is not a Participating Member State on the date hereof shall,
effective from the date on which such country becomes a Participating Member
State, be redenominated in euro in accordance with the legislation of the
European Union applicable to the European Monetary Union; provided that,
if and to the extent that any such legislation provides that any such
obligation of any such party payable within such Participating Member State by
crediting an account of the creditor can be paid by the debtor either in euro
or such Currency, such party shall be entitled to pay or repay such amount
either in euro or in such Currency.  If
the basis of accrual of interest or fees expressed in this Agreement with
respect to an Agreed Foreign


 


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Currency of any country that becomes a Participating Member State after
the date on which such currency becomes an Agreed Foreign Currency shall be
inconsistent with any convention or practice in the interbank market for the
basis of accrual of interest or fees in respect of the euro, such convention or
practice shall replace such expressed basis effective as of and from the date
on which such country becomes a Participating Member State; provided
that, with respect to any Borrowing denominated in such currency that is
outstanding immediately prior to such date, such replacement shall take effect
at the end of the Interest Period therefor. 
Without prejudice to the respective liabilities of the Borrowers and the
Subsidiary Account Parties to the Lenders and of the Lenders to the Borrowers
and the Subsidiary Account Parties under or pursuant to this Agreement, each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time reasonably
specify to be necessary or appropriate to reflect the introduction or
changeover to the euro in any country that becomes a Participating Member State
after the date hereof.


 


ARTICLE II



THE CREDITS


 


SECTION 2.01.  The Commitments.


 


(a) 
Subject to the terms and conditions set forth herein, each Dollar Lender agrees
to make Syndicated Loans in Dollars to the Company and the Domestic Subsidiary
Borrowers from time to time during the Availability Period in an aggregate
principal amount that will not result in (i) such Lender’s Dollar Credit
Exposure exceeding such Lender’s Dollar Sub-Commitment, or (ii) the sum of
the total Credit Exposures plus the Dollar Amount of all outstanding Competitive
Loans exceeding the Total Commitments.


 


(b) 
Subject to the terms and conditions set forth herein, each Multicurrency Lender
agrees to make Syndicated Loans in Dollars or in any Agreed Foreign Currency to
the Company and the Domestic Subsidiary Borrowers from time to time during the
Availability Period in an aggregate principal amount that will not result in (i) such
Lender’s Multicurrency Credit Exposure exceeding such Lender’s Multicurrency
Sub-Commitment, (ii) the Dollar Amount of all outstanding Syndicated Loans
denominated in Agreed Foreign Currencies exceeding $150,000,000 or (iii) the
sum of the total Credit Exposures plus the Dollar Amount of all
outstanding Competitive Loans exceeding the Total Commitments.


 


(c) 
Subject to the terms and conditions set forth herein, each Multicurrency Lender
agrees to make Syndicated Loans in Dollars or in any Agreed Foreign Currency to
each of the Initial Foreign Subsidiary Borrowers from time to time during the
Availability Period in an aggregate principal amount that will not result in (i) such
Lender’s Multicurrency Credit Exposure exceeding such Lender’s Multicurrency
Sub-Commitment, (ii) the Dollar Amount of all outstanding Syndicated Loans
denominated in Agreed Foreign Currencies exceeding $150,000,000 or (iii) the
sum of the total Credit Exposures plus the Dollar Amount of all
outstanding Competitive Loans exceeding the Total Commitments.


 


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(d) 
Subject to the terms and conditions set forth herein, each Approving Relevant
Lender agrees to make Syndicated Loans in Dollars or in any Agreed Foreign
Currency to any Future Foreign Subsidiary Borrower for such Approving Relevant
Lender from time to time during the Availability Period in an aggregate
principal amount that will not result in (i) such Lender’s Multicurrency Credit
Exposure exceeding such Lender’s Multicurrency Sub-Commitment, (ii) the
Dollar Amount of all outstanding Syndicated Loans denominated in Agreed Foreign
Currencies exceeding $150,000,000 or (iii) the sum of the total Credit
Exposures plus the Dollar Amount of all outstanding Competitive Loans
exceeding the Total Commitments. 
Notwithstanding anything to the contrary, no Lender shall be required to
make Syndicated Loans to any Future Foreign Subsidiary Borrower in any Foreign
Currency unless such Lender is an Approving Relevant Lender with respect to
such Foreign Subsidiary Borrower and such Lender has agreed to lend to such
Foreign Subsidiary in such Foreign Currency.


 


(e) 
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrowers may borrow, prepay and reborrow Syndicated Loans.


 


SECTION 2.02.  Loans and Borrowings.


 


(a) 
Obligations of Lenders.  Each
Syndicated Loan to the Company or any Domestic Subsidiary Borrower shall be
made as part of a Borrowing consisting of Loans of the same Currency and Type
made by the applicable Lenders ratably in accordance with their respective applicable
Sub-Commitments (subject to Section 2.03(c)(ii)).  Each Syndicated Loan to the Initial Foreign
Subsidiary Borrowers shall be made as part of a Borrowing consisting of Loans
of the same Currency and Type made by the Multicurrency Lenders ratably in
accordance with their respective Multicurrency Sub-Commitments (subject to Section 2.03(c)(ii)).  Each Syndicated Loan to any Future Foreign
Subsidiary Borrower shall be made as part of a Borrowing consisting of Loans of
the same Currency and Type made by the Approving Relevant Lenders for such
Foreign Subsidiary Borrower ratably in accordance with the respective Multicurrency
Sub-Commitments of such Approving Relevant Lenders only (subject to Section 2.03(c)(ii)).  Each Competitive Loan shall be made in
accordance with the procedures set forth in Section 2.04.  Each Swingline Loan shall be made in
accordance with Section 2.05.  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) 
Type of Loans.  Subject to Section 2.15,
(i) each Syndicated Borrowing by the Company or any Domestic Subsidiary
Borrower shall be constituted entirely of ABR Loans or of Eurocurrency
Loans denominated in a single Currency as the relevant Borrower may request in
accordance herewith and (ii) each Syndicated Borrowing by any Foreign
Subsidiary Borrower shall be constituted entirely of Eurocurrency Loans
denominated in a single Currency as the relevant Foreign Subsidiary Borrower
may request in accordance herewith.  Each
Swingline Loan shall be an ABR Loan. 
Each ABR Loan (whether a Syndicated Loan or a Swingline Loan) shall be
denominated in Dollars.


 


Each
Lender at its option may make any Eurocurrency Loan by causing any U.S. or
non-U.S. branch or any Affiliate of such Lender to make such Loan; provided
that any


 


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exercise of such option shall not affect the obligation of the relevant
Borrower to repay such Loan in accordance with the terms of this Agreement.


 


(c) 
Minimum Amounts; Limitation on Number of Borrowings.  Each Syndicated Eurocurrency Borrowing shall
be in an aggregate amount of $5,000,000 (or, in the case of each Syndicated
Eurocurrency Borrowing denominated in an Agreed Foreign Currency, $2,000,000)
or a larger multiple of $1,000,000.  Each
ABR Borrowing shall be in an aggregate amount equal to $5,000,000 or a
larger multiple of $1,000,000; provided that an ABR Borrowing may
be in an aggregate amount that is equal to the entire unused balance of the Total
Dollar Sub-Commitment or that is required to finance the reimbursement of an
LC Disbursement as contemplated by Section 2.06(f).  Each Competitive Borrowing shall be in an
aggregate amount equal to $5,000,000 or a larger multiple of $1,000,000.  Borrowings of more than one Class, Currency
and Type may be outstanding at the same time; provided that there shall
not at any time be more than a total of sixteen Syndicated Eurocurrency
Borrowings outstanding.


 


(d) 
Limitations on Interest Periods. 
Notwithstanding any other provision of this Agreement, neither the
Company nor any other Borrower shall be entitled to request (or to elect to
convert to or continue as a Syndicated Eurocurrency Borrowing) any Borrowing if
the Interest Period requested therefor would end after the Commitment
Termination Date.


 


SECTION 2.03.  Requests for Syndicated Borrowings.


 


(a) Borrowing
Requests.  To request a Syndicated
Borrowing, the Company (on behalf of itself or the relevant Borrower) or the
relevant Borrower shall notify the Administrative Agent of such request by
telephone:


 


(i) in the case of a Syndicated Eurocurrency
Borrowing denominated in Dollars by the Company or any Domestic Subsidiary
Borrower, not later than 11:00 a.m., New York City time, three Business
Days before the date of the proposed Borrowing;


 


(ii) in the case of a Syndicated Eurocurrency
Borrowing denominated in an Agreed Foreign Currency by the Company or any
Domestic Subsidiary Borrower, not later than 11:00 a.m., London time, four
Business Days before the date of the proposed Borrowing;


 


(iii) in the case of a Syndicated Eurocurrency
Borrowing denominated in Dollars or an Agreed Foreign Currency by any Foreign
Subsidiary Borrower, not later than 11:00 a.m., London time, five Business
Days before the date of the proposed Borrowing; or


 


(iv) in the case of an ABR Borrowing by the
Company or any Domestic Subsidiary Borrower, not later than 11:00 a.m.,
New York City time, on the date of the proposed Borrowing.


 


Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the Company (on
behalf of itself or the relevant Borrower) or the relevant Borrower.


 


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(b) 
Content of Borrowing Requests. 
Each telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:


 


(i) 
the name of the relevant Borrower;


 


(ii)  the Currency and the aggregate amount
(denominated in such Currency) of the requested Borrowing;


 


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


 


(iv)  in the case of a Syndicated Borrowing
denominated in Dollars, whether such Borrowing is to be an ABR Borrowing
or a Eurocurrency Borrowing and whether such Borrowing shall constitute a
utilization of the Dollar Sub-Commitment or Multicurrency Sub-Commitment;


 


(v)  in the case of a Syndicated Eurocurrency
Borrowing, the Interest Period therefor, which shall be a period contemplated
by the definition of the term “Interest Period” and permitted under Section 2.02(d);
and


 


(vi)  the location and number of the relevant Borrower’s
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.07.


 


(c) 
Notice by Administrative Agent; Determination of Lender Ratable Shares.


 


(i) 
Promptly following receipt of a Borrowing Request for a Borrowing under the
Dollar Sub-Commitments by the Company or a Domestic Subsidiary Borrower, the
Administrative Agent shall advise each Dollar Lender of the details thereof and
of the amounts of such Lender’s Loan to be made as part of the requested
Borrowing.


 


(ii) Promptly
following receipt of a Borrowing Request for a Borrowing under the
Multicurrency Sub-Commitments, the Administrative Agent shall determine each relevant
Multicurrency Lender’s availability under its Multicurrency Sub-Commitments
(the “Unused Multicurrency Commitment Amount”) as of the date that the
Administrative Agent received the relevant Borrowing Request which shall be (A) such
Lender’s Multicurrency Sub-Commitment minus such Lender’s Multicurrency Loans
denominated in Dollars and minus (B) such Lender’s Multicurrency LC
Exposure and minus (C) the Dollar Amount of such Lender’s
Multicurrency Loans and Competitive Loans denominated in an Agreed Foreign
Currency, provided that:


 


(A)  In the case of a Borrowing Request for a
Borrowing by the Company, a Domestic Subsidiary Borrower or an Initial Foreign
Subsidiary Borrower, immediately upon determining the Unused Multicurrency
Commitment Amount of each Multicurrency Lender, the Administrative Agent shall
then determine each relevant Multicurrency Lender’s Loan to be made as part of
the requested Borrowing.  Notwithstanding
Section 2.19(c), the Loans to be made as part of the requested Borrowing
shall be made ratably in accordance with the Multicurrency Lenders’ respective Multicurrency
Sub-Commitments; provided that (x) no Lender’s Multicurrency Loan
to be made as part of the requested Borrowing shall be in an amount greater
than such Lender’s Unused Multicurrency Commitment Amount and (y) to the


 


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extent
that any Multicurrency Lender’s Unused Multicurrency Commitment Amount is less
than such Lender’s ratable portion of the aggregate amount of such Borrowing
(its “Ratable Portion”), the difference between its Ratable Portion and
its Unused Multicurrency Commitment Amount shall be allocated ratably to the
amount to be loaned by the other Multicurrency Lenders (to the extent that such
other Lenders have the capacity to do so under their respective Unused Multicurrency
Commitment Amounts) in accordance with their respective Multicurrency Sub-Commitments.  Promptly upon determining each Multicurrency
Lender’s Loan to be made as part of the requested Borrowing, the Administrative
Agent shall advise each Multicurrency Lender of the details of the Borrowing
Request and of the amount of such Lender’s Loan to be made as part of the
requested Borrowing.


 


(B)  In the case of a Borrowing Request for a
Borrowing by a Future Foreign Subsidiary Borrower, immediately upon determining
each relevant Lender’s Unused Multicurrency Commitment Amount, the
Administrative Agent shall then determine such Borrower’s Approving Relevant
Lender’s Loan to be made part of the requested Borrowing.   The Loans to be made as part of the
requested Borrowing shall be made ratably in accordance with the Approving
Relevant Lenders’ respective Multicurrency Sub-Commitments; provided
that (x) no Approving Relevant Lender’s Loan to be made as part of the
requested Borrowing shall be in an amount greater than such Approving Relevant Lender’s
Unused Multicurrency Commitment Amount and (y) to the extent that any Approving
Relevant Lender’s Unused Multicurrency Commitment Amount is less than such
Lender’s ratable portion of the aggregate amount of the Borrowing (its “Future
Subsidiary Borrower Ratable Portion”), the difference between its Future
Subsidiary Borrower Ratable Portion and its Unused Multicurrency Commitment
Amount shall be allocated ratably to the amount to be loaned by other Approving
Relevant Lenders (to the extent that such other Approving Relevant Lenders have
the capacity to do so under their respective Unused Multicurrency Commitment
Amounts) in accordance with their respective Multicurrency Sub-Commitments.  Promptly upon determining each Approving
Relevant Lender’s Loan to be made as part of the requested Borrowing, the
Administrative Agent shall advise each Approving Relevant Lender of the details
of the Borrowing Request and of the amount of such Approving Relevant Lender’s Loan
to be made as part of the requested Borrowing.


 


(d) 
Failure to Elect.  (i)  With
respect to any Borrowing Request in respect of a Syndicated Borrowing by the
Company or any Domestic Subsidiary Borrower:


 


(A) if no election as to the Currency of such Syndicated
Borrowing is specified, then the requested Syndicated Borrowing shall be
denominated in Dollars;


 


(B)  if no election as to the Type of such Syndicated
Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing, unless an Agreed Foreign Currency has been specified, in
which case such Syndicated Borrowing shall be a Eurocurrency Borrowing
denominated in such Agreed Foreign Currency;


 


(C)  if no Interest Period is specified with
respect to any requested Syndicated Eurocurrency Borrowing, (i) if the
Currency specified for such Borrowing is Dollars (or


 


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- 33 -


 


if no
Currency has been so specified), the requested Borrowing shall be made instead
as an ABR Borrowing and (ii) if the Currency specified for such
Borrowing is an Agreed Foreign Currency, the relevant Borrower shall be deemed
to have selected an Interest Period of one month’s duration; and


 


(D)          if
no election as to the Sub-Commitment of a Borrowing is specified for a
Borrowing denominated in Dollars by the Company or a Domestic Subsidiary
Borrower, then the relevant Borrower shall be deemed to have requested a
Borrowing under the Dollar Sub-Commitment, provided that, if at such
time the Dollar Sub-Commitment shall be fully drawn, then the relevant Borrower
shall be deemed to have requested a Borrowing in Dollars under the
Multicurrency Sub-Commitment


 


(ii) 
With respect to any Borrowing Request in respect of a Syndicated Borrowing by
any Foreign Subsidiary Borrower:


 


(A)  if no election as to the Currency of such
Syndicated Borrowing is specified, then the requested Syndicated Borrowing shall
be denominated in Dollars; and


 


(B)  if no Interest Period is specified with
respect to such Syndicated Borrowing, such Foreign Subsidiary Borrower shall be
deemed to have selected an Interest Period of one month’s duration.


 


SECTION 2.04.  Competitive Bid Procedure.


 


(a) 
Requests for Bids.  Subject to the
terms and conditions set forth herein, from time to time during the
Availability Period the Company or any Subsidiary Borrower may request
Competitive Bids and may (but shall not have any obligation to) accept
Competitive Bids and borrow Competitive Loans denominated in Dollars or in any
Foreign Currency; provided that the sum of the total Credit Exposures plus
the aggregate principal amount of outstanding Competitive Loans at any time
shall not exceed the Total Commitments. 
To request Competitive Bids, the Company (on behalf of itself or the
relevant Borrower) or the relevant Borrower shall notify the Administrative
Agent of such request by telephone:


 


(i) in the case of a Eurocurrency Borrowing
denominated in Dollars, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing;


 


(ii) in the case of a Eurocurrency Borrowing
denominated in a Foreign Currency, not later than 11:00 a.m., London time,
four Business Days before the date of the proposed Borrowing;


 


(iii) in the case of a Fixed Rate Borrowing
denominated in Dollars, not later than 11:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; and


 


(iv) in the case of a Fixed Rate Borrowing
denominated in a Foreign Currency, not later than 11:00 a.m. London time, one
Business Day before the date of the proposed Borrowing;


 


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provided
that the Borrowers may submit up to (but not more than) five 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 Company. 
Each such telephonic and written Competitive Bid Request shall specify
the following information in compliance with Section 2.02:


 


(i)  the Currency and aggregate amount (denominated
in such Currency) of the requested Borrowing;


 


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


 


(iii)  whether such Borrowing is to be a
Eurocurrency Borrowing or a Fixed Rate Borrowing;


 


(iv)  the Interest Period for such Borrowing,
which shall be a period contemplated by the definition of the term “Interest
Period” and permitted under Section 2.02(d); and


 


(v)  the location and number of the Company’s account
to which funds are to be disbursed, which shall comply with the requirements of
Section 2.07.


 


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) 
Making of Bids by Lenders.  Each
Lender may (but shall not have any obligation to) make one or more Competitive
Bids to the Company 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:


 


(i) in the case of a Competitive Eurocurrency
Borrowing denominated in Dollars, not later than 11:00 a.m., New York City
time, three Business Days before the proposed date of such Borrowing;


 


(ii) in the case of a Competitive Eurocurrency
Borrowing denominated in a Foreign Currency, not later than 11:00 a.m.,
London time, four Business Days before the proposed date of such Borrowing;


 


(iii)  in the case of a Fixed Rate Borrowing
denominated in Dollars, not later than 11:00 a.m., New York City time, on
the proposed date of such Borrowing; and


 


(iv)  in the case of a Fixed Rate Borrowing
denominated in a Foreign Currency, not later than 9:30 a.m. London time,
on the proposed date of such Borrowing.


 


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Competitive Bids that do
not conform substantially to the form approved by the Administrative Agent may
be rejected by the Administrative Agent, and the Administrative Agent shall
notify the relevant Lender of such rejection as promptly as practicable.  Each Competitive Bid shall specify (i) the
principal amount (which shall be $5,000,000 or a larger multiple of $1,000,000
and which may equal the entire principal amount of the Competitive Borrowing
requested by the Company) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Competitive Bid 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 for each such Loan and the last day
thereof.


 


(c) 
Notification of Bids by Administrative Agent.  The Administrative Agent shall promptly
notify the Company 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) 
Acceptance of Bids by the Company. 
Subject only to the provisions of this paragraph, the Company may accept
or reject any Competitive Bid.  The
Company 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:


 


(i)  in the case of a Competitive Eurocurrency
Borrowing denominated in Dollars, not later than 12:00 noon, New York City
time, three Business Days before the date of the proposed Competitive
Borrowing;


 


(ii)  in the case of a Competitive Eurocurrency
Borrowing denominated in a Foreign Currency, not later than 2:00 p.m., London
time, four Business Days before the date of the proposed Competitive Borrowing,


 


(iii)  in the case of a Fixed Rate Borrowing
denominated in Dollars, not later than 12:00 noon, New York City time, on
the proposed date of the Competitive Borrowing; and


 


(iv)  in the case of a Fixed Rate Borrowing
denominated in a Foreign Currency, not later than 10:30 a.m., London time,
on the proposed date of the Competitive Borrowing;


 


provided
that (i) the failure of the Company (on behalf of itself or the relevant
Borrower) or the relevant Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the Company shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Company rejects
a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by the Company 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) of this proviso, the Company 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) of this


 


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proviso, no Competitive
Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a principal amount of $5,000,000 or a larger 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) of the first
proviso of this paragraph, such Competitive Loan may be in an amount of
$1,000,000 or any 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 such clause (iv) the amounts shall
be rounded to multiples of $1,000,000 in a manner determined by the Company.  A notice given by the Company (on behalf of
itself or the relevant Borrower) or the relevant Borrower pursuant to this
paragraph shall be irrevocable.


 


(e) 
Notification of Acceptances by the Administrative Agent.  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.


 


(f) 
Bids by the Administrative Agent. 
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 Company
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.  Swingline Loans.  (a)  Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans in Dollars to any Swingline Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (i) the
aggregate principal amount of all Swingline Loans exceeding $25,000,000, (ii) the
sum of the total Dollar Credit Exposures exceeding the Total Dollar Sub-Commitments
or (iii) the sum of the total Credit Exposures plus the Dollar
Amount of all outstanding Competitive Loans exceeding the Total Commitment; provided
that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. 
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Swingline Borrowers may borrow, prepay and reborrow Swingline
Loans.


 


(b)  To request
a Swingline Loan, the Company (on behalf of itself or, if applicable, the
relevant Swingline Borrower) or the relevant Swingline Borrower shall notify
the Administrative Agent of such request by telephone (confirmed by telecopy),
not later than 1:00 p.m., New York City time, on the day of a
proposed Swingline Loan.  Each such
notice shall be irrevocable and shall specify:


 


(i) the name of the
relevant Swingline Borrower;


 


(ii)  the date of
the requested Swingline Loan (which shall be a Business Day);


 


(iii) the amount of such
Swingline Loan; and


 


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


 


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The Administrative Agent
will promptly advise the Swingline Lender of any such notice received from the
Company or the relevant Swingline Borrower. 
The Swingline Lender shall make each Swingline Loan available to the
relevant Swingline Borrower in accordance with such request (or, in the case of
a Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(f), by remittance to the relevant Issuing Lender)
by 3:00 p.m., New York City time, on the requested date of such
Swingline Loan.


 


(c) 
The Swingline Lender may by written notice given to the Administrative Agent not
later than 12:00 noon, New York City time, on any Business Day
require the Dollar Lenders to acquire participations on such Business Day in
all or a portion of the Swingline Loans outstanding.  Such notice shall specify the aggregate
amount of Swingline Loans in which Dollar Lenders will participate.  Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Dollar Lender, specifying
in such notice such Lender’s Dollar Applicable Percentage of such Swingline
Loan or Loans.  Each Dollar Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender’s Dollar Applicable Percentage of such Swingline Loan or
Loans.  Each Dollar Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.  Each Dollar Lender
shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.07
with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Dollar Lenders.  The
Administrative Agent shall notify the Company of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and
not to the Swingline Lender.  Any amounts
received by the Swingline Lender from the relevant Swingline Borrower (or other
party on behalf of such Swingline Borrower) in respect of a Swingline Loan
after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Dollar Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear; provided that any such payment so remitted shall
be repaid to the Swingline Lender or to the Administrative Agent, as
applicable, if and to the extent such payment is required to be refunded to the
relevant Swingline Borrower for any reason. 
The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the relevant Swingline Borrower of any default in
the payment thereof.


 


SECTION 2.06.  Letters of Credit.


 


(a) 
General.  Subject to the terms and
conditions set forth herein, in addition to the Loans provided for herein, from
time to time during the Availability Period, (i) the Company or any
Domestic Subsidiary Account Party may request any Issuing Lender to issue Letters
of Credit denominated in Dollars or in any Agreed Foreign Currency for the account
of the


 


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- 38 -


 


Company or such Domestic Subsidiary Account Party, as applicable, either
under the Dollar Sub-Commitments or under the Multicurrency Sub-Commitments, and
(ii) any Foreign Subsidiary Account Party may request any Approving Issuing
Lender with respect to such Foreign Subsidiary Account Party to issue Letters
of Credit denominated in Dollars or any Agreed Foreign Currency for the account
of such Foreign Subsidiary Account Party under the Multicurrency
Sub-Commitments, in each case such Letter of Credit being in such form as shall
be acceptable to the relevant Issuing Lender in its reasonable determination.  Letters of Credit issued hereunder shall
constitute utilization of the Commitments. 
Notwithstanding anything herein to the contrary, no Issuing Lender shall
be required to issue Letters of Credit for account of a Foreign Subsidiary
Account Party in any Foreign Currency unless such Issuing Lender is an
Approving Issuing Lender with respect to such Foreign Subsidiary Account Party
and such Issuing Lender has agreed to issue Letters of Credit in such Foreign
Currency.


 


(b) 
Notice of Issuance, Amendment, Renewal or Extension.  To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter of Credit), an
Account Party shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the relevant Issuing
Lender of such Letter of Credit) to such Issuing Lender and the Administrative
Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (d) of this Section), the amount and
Currency of such Letter of Credit, the name and address of the beneficiary
thereof, whether such Letter of Credit is to be made under the Dollar
Sub-Commitments or the Multicurrency Sub-Commitments and such other information
as shall be necessary to prepare, amend, renew or extend such Letter of
Credit.  If requested by such Issuing
Lender, such Account Party also shall submit a letter of credit application on
such Issuing Lender’s standard form in connection with any request for a Letter
of Credit.  In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by an Account Party to, or entered into by an Account Party with, any
Issuing Lender relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.


 


(c) 
Limitations on Amounts.  A Letter
of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the relevant
Account Party shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the aggregate
LC Exposure of the Issuing Lenders (determined for these purposes without
giving effect to the participations therein of the Lenders pursuant to
paragraph (e) of this Section) shall not exceed $150,000,000 and (ii) the
sum of the total Credit Exposures plus the Dollar Amount of all
outstanding Competitive Loans shall not exceed the Total Commitments.


 


(d) 
Expiration Date.  No Letter of
Credit shall have a stated expiry date that is later than the close of business
on the earlier of (i) the date twelve months after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, twelve months after the then-current expiration date of such Letter of
Credit, so long as such renewal or extension occurs within three months of such
then-current expiration date) and (ii) the date that


 


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- 39 -


 


is five Business Days
prior to the Commitment Termination Date in effect on the date such Letter of
Credit is issued, renewed or extended, as applicable.


 


(e) 
Participations.  By the issuance
of a Letter of Credit (or an amendment to a Letter of Credit increasing the
amount thereof) by the Issuing Lender, and without any further action on the
part of the Issuing Lender of such Letter of Credit or the Lenders, (i) in
the case of a Dollar Letter of Credit, the Issuing Lender hereby grants to each
Dollar Lender, and each Dollar Lender hereby acquires from such Issuing Lender
a participation in such Letter of Credit equal to such Dollar Lender’s
Applicable Dollar Percentage, and (ii) in the case of a Multicurrency
Letter of Credit, the Issuing Lender hereby grants to each Multicurrency
Lender, and each Multicurrency Lender hereby acquires from such Issuing Lender
a participation in such Letter of Credit equal to such Multicurrency Lender’s
Applicable Multicurrency Percentage of the aggregate amount available to be
drawn under such Letter of Credit.  Each
Dollar Lender and each Multicurrency Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Dollar Letters of Credit and Multicurrency Letters of Credit, as the case may
be, is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Dollar Sub-Commitment or Multicurrency Sub-Commitment, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.


 


In
consideration and in furtherance of the foregoing, each relevant Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided in
paragraph (f) below, to pay to the Administrative Agent, for account of
the relevant Issuing Lender of each Letter of Credit, (i) in the case of
each Letter of Credit issued for the account of the Company or any Domestic
Subsidiary Account Party and denominated in Dollars, Pounds Sterling or euro,
an amount in the relevant Currency equal to such Lender’s Applicable Dollar Percentage
or Applicable Multicurrency Percentage, as the case may be, of each
LC Disbursement made by such Issuing Lender and (ii) in the case of
each Letter of Credit issued for the account of the Company or any Domestic
Subsidiary Account Party in any Currency (other than Dollars, Pounds Sterling
or euro) or in the case of each Letter of Credit issued for the account of any
Foreign Subsidiary Account Party in any Currency, an amount in Dollars equal to
such Lender’s Applicable Multicurrency Percentage of the Dollar Amount of each
LC Disbursement made by such Issuing Lender, in each case promptly upon
the request of such Issuing Lender at any time from the time of such
LC Disbursement until such LC Disbursement is reimbursed by the relevant
Account Party or at any time after any reimbursement payment is required to be
refunded to such Account Party for any reason. 
Such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.  Each such payment
shall be made in the same manner as provided in Section 2.07 with respect to
Loans made by such Lender (and Section 2.07 shall apply, mutatis  mutandis,
to the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the relevant Issuing Lender the amounts so received by it from
the Lenders.  Promptly following receipt
by the Administrative Agent of any payment from the relevant Account Party
pursuant to the next following paragraph, the Administrative Agent shall
distribute such payment to such Issuing Lender or, to the extent that the
Lenders have made payments pursuant to this paragraph to reimburse such Issuing
Lender, then to such Lenders and such Issuing Lender as their interests may
appear.  Any payment made by a Lender
pursuant to this paragraph to reimburse an Issuing Lender for any
LC Disbursement shall not


 


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- 40 -


 


constitute a Loan and
shall not relieve the relevant Account Party of its obligation to reimburse
such LC Disbursement.


 


(f) 
Reimbursement.  If an Issuing
Lender shall make any LC Disbursement in respect of a Letter of Credit denominated
in Dollars issued by it for account of the Company or any Domestic Subsidiary
Account Party, the relevant Account Party shall reimburse such Issuing Lender
in respect of such LC Disbursement by paying to the Administrative Agent
an amount equal to such LC Disbursement not later than 12:00 noon,
New York City time, on (i) the Business Day that the relevant Account
Party and the Company receive notice that such LC Disbursement has been
made, if such notice is received prior to 10:00 a.m., New York City time,
or (ii) the Business Day immediately following the day that the relevant
Account Party receives such notice, if such notice is not received prior to
such time; provided that, if such LC Disbursement is made in
respect of a Letter of Credit issued for the account of the Company or any Domestic
Subsidiary Account Party hereunder, then the Company or such Domestic
Subsidiary Account Party (if it is also a Domestic Subsidiary Borrower hereunder),
as the case may be, may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 or 2.05 that such payment
be financed with all or any portion of a Syndicated ABR Borrowing or a Swingline
Loan, as applicable, in an amount permitted under Section 2.02(c) and,
to the extent so financed, the relevant Account Party’s obligation to make such
payment shall be discharged and replaced by the resulting Syndicated
ABR Borrowing or Swingline Loan (or the applicable portion thereof).


 


If an
Issuing Lender shall make any LC Disbursement in respect of a Letter of
Credit issued by it for account of the Company or any Domestic Subsidiary
Account Party denominated in an Agreed Foreign Currency or for account of a Foreign
Subsidiary Account Party, such Account Party shall reimburse such Issuing
Lender in respect of such LC Disbursement by paying to such Issuing Lender
in the Currency in which such Letter of Credit is denominated an amount equal
to such LC Disbursement not later than 12:00 noon, local time of such
Issuing Lender, on (i) the date that is two Business Days after the
Business Day that the relevant Account Party and the Company receive notice of
such LC Disbursement, if such notice is received prior to 10:00 a.m.,
local time (as provided above) or (ii) the date that is three Business
Days after the Business Day immediately following the day that the relevant
Account Party and the Company receive such notice, if such notice is not
received prior to such time.  Such Issuing
Lender shall promptly notify the Administrative Agent of the amount and date of
each such reimbursement.


 


If any
Account Party fails to make such payment when due in respect of any
LC Disbursement relating to a Letter of Credit issued for its account, the
Administrative Agent shall notify each relevant Lender of the applicable
LC Disbursement, the payment then due from such Account Party and such
Lender’s Applicable Dollar Percentage or Applicable Multicurrency Percentage,
as applicable, thereof.


 


Without
limiting any other obligations of the Company hereunder, the Company hereby
agrees to indemnify the relevant Issuing Lender of each Letter of Credit
denominated in a Foreign Currency for any and all costs, expenses and losses
incurred by it as a result of receiving payment or reimbursement for any LC
Disbursement thereunder from any Person in a Currency other than the Currency
in which such Letter of Credit was originally denominated.  Any such


 


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- 41 -


 


amount payable to any
Issuing Lender shall be payable within 10 days after demand by such Issuing
Lender.


 


(g) 
Obligations Absolute.  Each Account
Party’s obligations to reimburse LC Disbursements as provided in
paragraph (f) of this Section shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms
of this Agreement under any and all circumstances whatsoever and irrespective
of (i) any lack of validity or enforceability of any Letter of Credit, or
any term or provision therein, (ii) any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment
by any Issuing Lender under a Letter of Credit against presentation of a draft
or other document that does not comply strictly with the terms of such Letter
of Credit, (iv) at any time or from time to time, without notice to any
Account Party or any other Person, the time for any performance of or
compliance with any of such reimbursement obligations of any other Account
Party shall be waived, extended or renewed, (v) any of such reimbursement
obligations of any other Account Party shall be amended or otherwise modified
in any respect, or the Guarantee of any of such reimbursement obligations or
any security therefor shall be released, substituted or exchanged in whole or
in part or otherwise dealt with, (vi) any lien or security interest
granted to, or in favor of, the Administrative Agent or any of the Lenders as
security for any of such reimbursement obligations shall fail to be perfected, (vii) the
occurrence of any Default, (viii) the existence of any proceedings of the
type described in Section 7.01(g) or (h) with respect to any
other Obligor, (ix) any lack of validity or enforceability of any of such
reimbursement obligations against any other Obligor, or (x) any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of the obligations of any Account Party hereunder.


 


Neither
the Administrative Agent, the Lenders nor the Issuing Lenders, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit by the Issuing
Lender thereof or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Lender of such Letter of
Credit; provided that the foregoing shall not be construed to excuse
such Issuing Lender from liability to any Account Party or to any Lender which
has funded its participation hereunder in such Letter of Credit to the extent
of any direct damages (as opposed to consequential damages, claims in respect
of which are hereby waived by the Account Parties and the Lenders to the extent
permitted by applicable law) suffered by any Account Party or any such Lender,
as the case may be, that are caused by such Issuing Lender’s failure to
exercise the standard of care agreed hereunder to be applicable when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. 
The parties hereto expressly agree that such standard of care shall be
as follows, and that such Issuing Lender shall be deemed to have exercised such
standard of care in the absence of gross negligence or willful misconduct on
its part (as determined by a court of competent jurisdiction by final and
nonappealable judgment):


 


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- 42 -


 


(i)  an Issuing Lender of a Letter of Credit may
accept documents that appear on their face to be in substantial compliance with
the terms of such Letter of Credit without responsibility for further
investigation, regardless of any notice or information to the contrary, and may
make payment upon presentation of documents that appear on their face to be in
substantial compliance with the terms of such Letter of Credit; and


 


(ii)  an Issuing Lender of a Letter of Credit
shall have the right, in its sole discretion, to decline to accept such
documents and to make such payment if such documents are not in strict
compliance with the terms of such Letter of Credit.


 


(h) 
Disbursement Procedures.  Upon
presentation of documents with respect to a demand for payment under a Letter
of Credit, each Issuing Lender in respect of such Letter of Credit shall (i) promptly
notify the Administrative Agent, the Company and (if different) the relevant Account
Party by telephone (confirmed by telecopy) of such demand for payment, (ii) promptly
following its receipt of such documents, examine all documents purporting to
represent a demand for payment under a Letter of Credit and (iii) promptly
after such examination notify the Administrative Agent, the Company and (if
different) the relevant Account Party by telephone (confirmed by telecopy)
whether the Issuing Lender has made or will make an LC Disbursement under
such Letter of Credit; provided that any failure to give or delay in
giving any such notice shall not relieve such Account Party of its obligation
to reimburse such Issuing Lender and the Lenders with respect to any such
LC Disbursement or (if such Account Party is a Subsidiary Account Party)
the Company of its guarantee of such obligation.


 


(i) 
Interim Interest.  If any Issuing
Lender shall make any LC Disbursement, then, unless the relevant Account
Party shall reimburse such LC Disbursement in full on the date such
LC Disbursement is made, the unpaid amount thereof shall bear interest,
for each day from and including the date such LC Disbursement is made to
but excluding the date that such Account Party reimburses such
LC Disbursement, at the rate per annum then applicable to Syndicated ABR Loans
(if such amount is denominated in Dollars) or at the overnight London interbank
offered rate for the relevant Agreed Foreign Currency determined by the
Administrative Agent in good faith (if such amount is denominated in such
Currency); provided that, if such Account Party fails to reimburse such
LC Disbursement when due pursuant to paragraph (f) of this
Section, then Section 2.14(f) shall apply.  Interest accrued pursuant to this paragraph
shall be for account of such Issuing Lender, except that interest accrued on
and after the date of payment by any Lender pursuant to paragraph (e) of
this Section to reimburse such Issuing Lender shall be for account of such
Lender to the extent of such payment.


 


(j)  Additional Issuing Lenders; Termination of
Issuing Lenders.  An Issuing Lender
may be added, or an existing Issuing Lender may be terminated, under this
Agreement at any time by written agreement between the Company, the
Administrative Agent and the relevant Issuing Lender.  The Administrative Agent shall notify the
Lenders of any such addition or termination. 
At the time any such termination shall become effective, the Account
Parties shall pay all unpaid fees accrued for account of the Issuing Lender
being terminated pursuant to Section 2.12(b)(ii).  From and after the effective date of any such
addition, the new Issuing Lender shall have all the rights and obligations of
an Issuing Lender under this Agreement with respect to Letters of Credit to be
issued thereafter.  After the termination
of an Issuing Lender


 


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- 43 -


 


hereunder, the terminated Issuing Lender shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Lender
under this Agreement with respect to any outstanding Letters of Credit issued
by it prior to such termination, but shall not be required to issue any new
Letters of Credit or to renew or extend any such outstanding Letters of Credit.


 


(k)  Cash Collateralization.  If either (i) an Event of Default shall
occur and be continuing and the Company receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing more than 50% of the
total LC Exposure) demanding the deposit of cash collateral pursuant to
this paragraph or (ii) the Company shall be required to provide cover for
LC Exposure pursuant to Section 2.11, the Company shall immediately
deposit into an account established and maintained on the books and records of
the Administrative Agent, which account may be a “securities account” (within
the meaning of Section 8-501 of the Uniform Commercial Code as in
effect in the State of New York), in the name of the Administrative Agent and
for the benefit of the Lenders and the Issuing Lenders, an amount in
immediately available funds in Dollars equal to (x) in the case of clause (i) above,
105% of the LC Exposure as of such date plus any accrued and unpaid
interest thereon and (y) in the case of cover pursuant to Section 2.11,
the amount required under Section 2.11; provided that the
obligation to deposit such amount shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default described in
clause (h) or (i) of Article VII.  Such deposit shall be held by the
Administrative Agent as collateral for the LC Exposure under this
Agreement, and for this purpose the Company hereby grants a security interest
to the Administrative Agent for the benefit of the Lenders and the Issuing
Lenders in such collateral account and in any financial assets (as defined in
the Uniform Commercial Code) or other property held therein.  The Administrative Agent shall cause all such
cash collateral to be returned to the Company within three Business Days after (A) in
the case of clause (i) above, the applicable Event of Default shall have been
cured or waived (so long as no other Event of Default has occurred and is
continuing at such time) or (B) in the case of clause (ii) above, cover
for LC Exposure pursuant to Section 2.11(b) shall no longer be required.


 


(l)  Existing Letters of Credit.  Each of the standby letters of credit listed
on Schedule 2.06(l) and issued prior to the date hereof under the Existing
Credit Agreement by any bank or other entity that is an Issuing Lender as of
the date hereof shall automatically, and without any action on the part of any
Person, be deemed a Letter of Credit issued and continued hereunder as of the
Effective Date.


 


SECTION 2.07.  Funding of Borrowings.


 


(a) 
Funding by Lenders.  Each Lender
shall make each Loan to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds by 1:00 p.m., Local Time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be
made available as provided in Section 2.05.  The Administrative Agent will make such Loans
available to the relevant Borrower by promptly crediting the amounts so received,
in like funds, to an account of such Borrower designated by such Borrower in
the applicable Borrowing Request or Competitive Bid Request; provided
that Syndicated ABR Borrowings made to finance the


 


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- 44 -


 


reimbursement of an LC Disbursement as provided in Section 2.06(f) shall
be remitted by the Administrative Agent to the relevant Issuing Lender.


 


(b) 
Presumption by the Administrative Agent. 
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 relevant 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 relevant Lender and relevant 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 Federal Funds Effective Rate (if such Loan is denominated in Dollars) or at
the overnight London interbank offered rate for the relevant Agreed Foreign
Currency determined by the Administrative Agent in good faith (if such Loan is
denominated in such Currency) 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.  With respect to any share of a Borrowing not
made available by a Lender as contemplated above, if such Lender subsequently
pays its share of such Borrowing to the Administrative Agent, then the
Administrative Agent shall promptly repay any corresponding amount paid by the
relevant Borrower to the Administrative Agent as provided in this paragraph
(including interest thereon to the extent received by the Administrative
Agent); provided that such repayment to such Borrower shall not operate
as a waiver or any abandonment of any rights or remedies of such Borrower with
respect to such Lender.


 


SECTION 2.08.  Interest Elections.


 


(a) 
Elections by the Borrowers for Syndicated Borrowings.  The Loans constituting each Syndicated
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Syndicated Eurocurrency Borrowing, shall have the
Interest Period specified in such Borrowing Request.  Thereafter, the relevant Borrower may elect
to convert such Borrowing to a Borrowing of a different Type or to continue
such Borrowing as a Borrowing of the same Type and, in the case of a Syndicated
Eurocurrency Borrowing, may elect the Interest Period therefor, all as provided
in this Section; provided, however, that (i) a Syndicated
Borrowing denominated in one Currency may not be continued as, or converted to,
a Syndicated Borrowing in a different Currency, (ii) no Syndicated
Eurocurrency Borrowing may be continued if, after giving effect thereto, the
sum of the total Credit Exposures plus the Dollar Amount of all
outstanding Competitive Loans would exceed the Total Commitments, (iii) no
Syndicated Eurocurrency Borrowing denominated in a Foreign Currency may be
continued, if after giving effect thereto, the Dollar Equivalent of all
outstanding Eurocurrency Borrowings in Foreign Currencies exceed $150,000,000 and
(iv) a Syndicated Eurocurrency Borrowing denominated in a Foreign Currency
may not be converted to a Borrowing of a different Type.  A 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 relevant Lenders holding the
Loans constituting such Borrowing, and the Loans


 


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constituting each such portion shall be considered a separate
Borrowing.  This Section shall not
apply to Competitive Borrowings or Swingline Borrowings, which may not be
converted or continued.


 


(b) 
Notice of Elections.  To make an
election pursuant to this Section, the Company (on behalf of itself or the
relevant Borrower) or the relevant 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
Syndicated Borrowing of the Type resulting from such election to be made on the
effective date of such election.  Each
such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of
a written Interest Election Request in a form approved by the Administrative
Agent and signed by the Company (on behalf of itself or the relevant Borrower) or
the relevant Borrower.


 


(c) 
Content of Interest Election Requests. 
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) of this paragraph 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, in the case of a Borrowing
denominated in Dollars, the resulting Borrowing is to be an ABR Borrowing
or a Eurocurrency Borrowing; and


 


(iv)  if the resulting Borrowing is a
Eurocurrency Borrowing, the Interest Period therefor after giving effect to
such election, which shall be a period contemplated by the definition of the
term “Interest Period” and permitted under Section 2.02(d).


 


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


 


(e) 
Failure to Elect; Events of Default. 
If the Company or the relevant Subsidiary Borrower fails to deliver a
timely and complete Interest Election Request with respect to a Syndicated
Eurocurrency Borrowing by a Borrower prior to the end of the Interest Period
therefor, then, unless such Borrowing is repaid as provided herein, (i) if
such Borrowing is denominated in Dollars, at the end of such Interest Period
such Borrowing shall be converted to an ABR Borrowing, and (ii) if
such Borrowing is denominated in a Foreign Currency, the Company shall be
deemed to have selected an Interest Period of one month’s duration.  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
and the relevant Borrower, then, so long as an Event of Default is continuing (A) no
outstanding Syndicated Borrowing denominated in Dollars may be converted to or
continued as


 


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a Syndicated Eurocurrency Borrowing, (B) unless repaid, each
Syndicated Eurocurrency Borrowing denominated in Dollars shall be converted to
an ABR Borrowing at the end of the Interest Period therefor and (C) no
outstanding Syndicated Eurocurrency Borrowing denominated in a Foreign Currency
may have an Interest Period of more than one month’s duration.


 


SECTION 2.09.  Termination, Reduction and Increase of the
Commitments.


 


(a) 
Scheduled Termination.  Unless
previously terminated, the Commitments shall terminate on the Commitment
Termination Date.


 


(b) 
Voluntary Termination or Reduction. 
The Company may at any time terminate, or from time to time reduce, the
Commitments (and either or both of the Sub-Commitments); provided that (i) each
reduction of the Commitments (and of either Sub-Commitment) shall be in an
amount that is $25,000,000 or a larger multiple of $5,000,000, (ii) the Company
shall not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Syndicated Loans in accordance with Section 2.11,
the sum of the Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans would exceed the Total Commitment, the sum of the
Dollar Credit Exposure plus the aggregate principal amount of
outstanding Competitive Loans denominated in Dollars would exceed the Total
Dollar Sub-Commitment or the sum of the Multicurrency Credit Exposures plus
the Dollar Equivalent of the aggregate principal amount of outstanding
Competitive Loans denominated in an Agreed Foreign Currency would exceed the Total
Multicurrency Sub-Commitment and (iii) after giving effect to any such
reduction, the aggregate amount of the Sub-Commitments shall not exceed the
Commitments as so reduced.


 


(c) 
Notice of Voluntary Termination or Reduction.  The Company shall notify the Administrative
Agent of any election to terminate or reduce the Commitments (in the case of a
reduction, the amount of such reduction (if any) to be allocated to the Dollar
Sub-Commitment and Multicurrency Sub-Commitment hereunder) 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
(and of the Sub-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.


 


(d) 
Effect of Termination or Reduction. 
Any termination or reduction of the Commitments (and of the
Sub-Commitments) shall be permanent, provided that the reduction of the
Dollar Sub-Commitments shall not preclude a subsequent increase thereof in
accordance with Section 2.09(e). 
Each reduction of the Commitments and the Sub-Commitments shall be made
ratably among the Lenders in accordance with their respective Commitments and
the Sub-Commitments, as the case may be.


 


(e) 
Increase of the Commitments.


 


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- 47 -


 


(i)  Requests for Commitment Increase.  The Company may, at any time, propose that
the Total Dollar Sub-Commitments hereunder be increased (each such proposed
increase being a “Commitment Increase”) by having an existing Dollar Lender
agree to increase its then existing Dollar Sub-Commitment (each an “Increasing
Lender”) and/or by adding as a new Lender hereunder any Person which shall
agree to provide a Dollar Sub-Commitment hereunder (each an “Assuming Lender”),
in each case with the consent of the Administrative Agent, each Issuing Lender
and the Swingline Lender (such consent in each case not to be unreasonably
withheld), by notice to the Administrative Agent specifying the amount of the relevant
Commitment Increase, the Lender or Lenders providing for such Commitment
Increase and the date on which such increase is to be effective (the “Commitment
Increase Date”), which shall be a Business Day at least three Business Days
after delivery of such notice and 30 days prior to the Dollar Sub-Commitment
Termination Date; provided that:


 


(A)  the minimum amount of the Dollar Sub-Commitment
of any Assuming Lender, and the minimum amount of the increase of the Dollar
Sub-Commitment of any Increasing Lender, as part of such Commitment Increase
shall be $5,000,000 or a larger multiple of $1,000,000;


 


(B)  immediately after giving effect to such Commitment
Increase, the Total Dollar Sub-Commitments hereunder shall not exceed $600,000,000;


 


(C)  no Default shall have occurred and be
continuing on such Commitment Increase Date or shall result from the proposed Commitment
Increase;


 


(D)  the representations and warranties contained
in this Agreement shall be true and correct on and as of the Commitment
Increase Date as if made on and as of such date (or, if any such representation
or warranty is expressly stated to have been made as of a specific date, as of
such specific date); and


 


(E)  immediately after giving effect to such Commitment
Increase, no Dollar Lender, as a result of such Lender’s Commitment Increase, shall
hold more than 20% of the Total Dollar Sub-Commitments.


 


(ii)  Effectiveness of Commitment Increase.  The Assuming Lender, if any, shall become a Dollar
Lender hereunder as of such Commitment Increase Date and the Dollar Sub-Commitment
of any Increasing Lender and such Assuming Lender shall be increased as of such
Commitment Increase Date; provided that:


 


(x)  the
Administrative Agent shall have received on or prior to 9:00 a.m., New
York City time, on such Commitment Increase Date a certificate of a duly
authorized officer of the Company stating that each of the applicable
conditions to such Commitment Increase set forth in this paragraph (e) has
been satisfied;


 


(y)  with
respect to each Assuming Lender, the Administrative Agent shall have received,
on or prior to 9:00 a.m., New York City time,


 


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- 48 -


 


on
such Commitment Increase Date, an agreement, in form and substance satisfactory
to the Company and the Administrative Agent, pursuant to which such Assuming
Lender shall, effective as of such Commitment Increase Date, undertake a
Commitment, duly executed by such Assuming Lender and the Company and
acknowledged by the Administrative Agent; and


 


(z)  each
Increasing Lender shall have delivered to the Administrative Agent, on or prior
to 9:00 a.m., New York City time, on such Commitment Increase Date,
confirmation in writing satisfactory to the Administrative Agent as to its
increased Commitment, with a copy of such confirmation to the Company.


 


(iii)  Recordation into Register.  Upon its receipt of confirmation from a
Lender that it is increasing its Dollar Sub-Commitment hereunder, together with
the certificate referred to in clause (ii)(x) above, the Administrative Agent
shall (A) record the information contained therein in the Register and (B) give
prompt notice thereof to the Company. 
Upon its receipt of an agreement referred to in clause (ii)(y) above
executed by an Assuming Lender, together with the certificate referred to in
clause (ii)(x) above, the Administrative Agent shall, if such agreement has
been completed, (x) accept such agreement, (y) record the information contained
therein in the Register and (z) give prompt notice thereof to the Company.


 


(iv)  Adjustments of Borrowings upon
Effectiveness of Increase.  In the
event that the Administrative Agent shall have received notice from the Company
as to any agreement with respect to a Commitment Increase on or prior to the
relevant Commitment Increase Date and the actions provided for in clauses
(ii)(x) through (ii)(z) above shall have occurred by 9:00 a.m., New York
City time, on such Commitment Increase Date, the Administrative Agent shall
notify the Dollar Lenders (including any Assuming Lenders) of the occurrence of
such Commitment Increase Date promptly on such date by facsimile transmission
or electronic messaging system.  On the
date of such Commitment Increase, each Borrower in respect of any outstanding
Syndicated Loans shall (A) prepay such Syndicated Loans in full, (B) if
such Borrower shall so request in accordance with the terms hereof, simultaneously
borrow new Syndicated Loans hereunder in an amount equal to such prepayment, so
that, after giving effect thereto, the Syndicated Loans are held ratably by the
Dollar Lenders in accordance with their respective Dollar Sub-Commitments
(after giving effect to such Commitment Increase) and (C) pay to the Dollar
Lenders the amounts, if any, payable under Section 2.17.


 


SECTION 2.10.  Repayment of Loans; Evidence of Debt.


 


(a) 
Repayment.


 


(i)  The Company hereby unconditionally promises
to pay to the Administrative Agent for account of the Lenders the outstanding
principal amount of the Syndicated Loans made to the Company on the Commitment
Termination Date.  Each Domestic
Subsidiary Borrower hereby unconditionally promises to pay to the Administrative
Agent


 


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- 49 -


 


for
account of the Lenders the outstanding principal amount of the Syndicated Loans
made to such Domestic Subsidiary Borrower on the Commitment Termination Date.  Each Foreign Subsidiary Borrower hereby
unconditionally promises to pay to the Administrative Agent for account of the
relevant Lenders the outstanding principal amount of the Syndicated Loans made
to such Foreign Subsidiary Borrower on the Commitment Termination Date.


 


(ii)  The Company or the applicable Subsidiary
Borrower hereby unconditionally promises to pay to the Administrative Agent for
account of the relevant Lender the then unpaid principal amount of each
Competitive Loan of such Lender to the Company or such Subsidiary Borrower, as
applicable, on the last day of the Interest Period therefor.


 


(iii)  Each Swingline Borrower hereby
unconditionally promises to pay to the Swingline Lender the outstanding amount
of each Swingline Loan made to such Swingline Borrower on the earlier of the
Commitment Termination Date and the fifth Business Day after such Swingline
Loan is made; provided that on each date that a Syndicated Borrowing or
Competitive Borrowing is made to the Company or any Domestic Subsidiary
Borrower, the Company or such Domestic Subsidiary Borrower, as applicable, shall
repay all Swingline Loans made to it then outstanding.


 


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


 


(c) 
Maintenance of Records by the Administrative Agent.  The Administrative Agent shall maintain
records in which it shall record (i) the amount and Currency of each Loan
made hereunder, the Sub-Commitment, the Class and Type thereof and each
Interest Period therefor, (ii) the amount and Currency 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 and Currency of any sum
received by the Administrative Agent hereunder for account of the relevant Lenders
and each such Lender’s share thereof.


 


(d) 
Effect of Entries.  The entries
made in the records 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 records or
any error therein shall not in any manner affect the obligation of the relevant
Borrower to repay the Loans made to such Borrower in accordance with the terms
of this Agreement.


 


(e) 
Promissory Notes.  Any Lender may
request that Loans of any Sub-Commitment made by it to any Borrower be
evidenced by a promissory note.  In such
event, the relevant Borrower shall prepare, execute and deliver to such Lender
a promissory note payable to such Lender and its registered assigns and in a
form approved by the Administrative Agent. 
Thereafter, the Loans to such Borrower evidenced by such promissory note
and interest thereon


 


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- 50 -


 


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 such payee and its
registered assigns.


 


SECTION 2.11.  Prepayment of Loans.


 


(a) 
Optional Prepayments.  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 the requirements of this Section; provided
that the Company or the applicable Subsidiary Borrower shall not have the right
to prepay any Competitive Loan without the prior consent of the Lender thereof.


 


(b) 
Mandatory Prepayments.


 


(i) 
Determination of Amount Outstanding. 
On each Quarterly Date and promptly upon the receipt by the Administrative
Agent of a Currency Valuation Notice, the Administrative Agent shall determine (A) the
sum of the total Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans and (B) the aggregate Dollar Amount of all
Syndicated Loans, Competitive Loans and Letters of Credit denominated in any
Agreed Foreign Currency.  Upon making
such determination, the Administrative Agent shall promptly notify the Lenders
and the Company thereof.


 


(ii) 
Prepayment.  If, on the date of
such determination, (A) the sum specified in clause (A) of such
preceding paragraph exceeds 105% of the total Commitments as then in effect, (B) the
amount specified in clause (B) of the immediately preceding paragraph
exceeds $150,000,000 or (C) the amount specified in said clause (A) in
respect of Letters of Credit exceeds $150,000,000, the Borrowers shall, on the
date of such determination, prepay the Syndicated Loans, the Swingline Loans
and/or Competitive Loans (and/or provide cover for LC Exposure as
specified in Section 2.06(k)) in such amounts as shall be necessary so
that after giving effect thereto such condition no longer exists.


 


For
purposes hereof, “Currency Valuation Notice” means a notice given by the
Required Lenders or by any Issuing Lender to the Administrative Agent stating
that such notice is a “Currency Valuation Notice” and requesting that the
Administrative Agent determine (A) the sum of the total Credit Exposures plus
the aggregate principal amount of outstanding Competitive Loans and (B) the
aggregate Dollar Amount of all Syndicated Loans, Competitive Loans and Letters
of Credit denominated in an Agreed Foreign Currency.  Unless an Event of Default shall have
occurred and be continuing, the Administrative Agent shall not be required to
make more than one valuation determination pursuant to Currency Valuation
Notices within any three month period. 
Any prepayment pursuant to this paragraph shall be applied, first,
to Swingline Loans, second, to Syndicated Loans outstanding, third,
as cover for LC Exposure and next, to Competitive Loans
outstanding.


 


(c) 
Notices, Etc.  The Company shall
notify the Administrative Agent (and, in the case of prepayment of a Swingline
Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any
prepayment hereunder:


 


(i)  in the case of prepayment of a Syndicated
Eurocurrency Borrowing or a Competitive Borrowing to the Company or a Domestic
Subsidiary Borrower


 


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denominated
in Dollars, not later than 11:00 a.m., New York City time, before the date
of prepayment;


 


(ii)  in the case of a Syndicated Borrowing or a
Competitive Borrowing denominated in a Foreign Currency, or a Syndicated
Borrowing of a Foreign Subsidiary Borrower denominated in Dollars, not later
than 11:00 a.m., London time, three Business Days before the date of
prepayment;


 


(iii)  in the case of prepayment of an
ABR Borrowing, not later than 9:00 a.m., New York City time, on the
date of prepayment; or


 


(iv)  in the case of prepayment of a Swingline
Loan, not later than 1:00 p.m., New York City time, on the date of
prepayment.


 


Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section 2.09,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.09. 
Promptly following receipt of any such notice relating to a Syndicated
Borrowing or Competitive Borrowing, the Administrative Agent shall advise the relevant
Lenders of the contents thereof.  Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of a Borrowing of the same Type as provided in Section 2.02,
except as necessary to apply fully the required amount of a mandatory
prepayment.  Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.14 and
shall be made in the manner specified in Section 2.19(a).


 


SECTION 2.12.  Fees.


 


(a) 
Facility Fee.  The Company agrees
to pay to the Administrative Agent for account of each Lender a facility fee,
which shall accrue at the Applicable 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 earlier of the date such Commitment
terminates and the Commitment Termination Date; provided that, if such
Lender continues to have any Credit Exposure after its Commitment terminates,
then such facility fee shall continue to accrue on the daily amount of such
Lender’s 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
Credit Exposure.  Accrued facility fees
shall be payable on each Quarterly Date and on the earlier of the date the
Commitments terminate and the Commitment Termination Date, 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).


 


(b) 
Letter of Credit Fees.  (i) 
The Company agrees to pay to the Administrative Agent for account of each
Lender a participation fee in Dollars with respect to its participations in
Letters of Credit, which shall accrue at the Applicable Rate on the average
daily amount of


 


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- 52 -


 


such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender’s Commitment terminates and the date on which such Lender ceases to
have any LC Exposure.


 


(ii) 
The relevant Account Party of each Letter of Credit agrees to pay to the
Issuing Lender of such Letter of Credit (A) a fronting fee, which shall
accrue at the rate or rates per annum and in the Currency separately agreed
upon between such Account Party and such Issuing Lender on the average daily
amount of the LC Exposure with respect to such Letter of Credit (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during
the period from and including the date of issuance of such Letter of Credit to
but excluding the date on which there ceases to be any such LC Exposure
under such Letter of Credit and (B) such Issuing Lender’s standard fees
with respect to the issuance, amendment, renewal or extension of such Letter of
Credit or processing of drawings thereunder, which shall be payable in the
Currency separately agreed upon between such Account Party and such Issuing Lender.


 


(iii) 
Participation fees and fronting fees accrued through and including each
Quarterly Date shall be payable on the third Business Day following such
Quarterly Date, commencing on the first such date to occur after the Effective
Date; provided that all such fees shall be payable on the date on which
the Commitments terminate and any such fees accruing after the date on which
the Commitments terminate shall be payable on demand.  Any other fees payable to any Issuing Lender
pursuant to clause (B) of paragraph (b)(ii) above shall be payable at
the times separately agreed upon between the Company or the relevant Account
Party and such Issuing Lender or otherwise within 10 days after demand.  All participation fees and fronting 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) 
Administrative Agent Fees.  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) 
Payment of Fees.  All fees payable
hereunder shall be paid on the dates due, in Dollars (except as otherwise
expressly provided in this Section) and immediately available funds, to the
Administrative Agent (or to the relevant Issuing Lender, in the case of fees
payable to it) for distribution, in the case of facility fees and participation
fees, to the Lenders entitled thereto. 
Fees paid shall not be refundable under any circumstances.


 


SECTION 2.13.  Extension of Commitment Termination Date.


 


(a) 
Request for Extension.  The
Company may, by notice to the Administrative Agent (which shall promptly notify
the Lenders) not more than 60 days and not less than 30 days prior to each
anniversary of the Effective Date (such anniversary date, the “Extension
Date”), request (each, an “Extension Request”) that the Lenders
extend the Commitment Termination Date then in effect (the “Existing Commitment
Termination Date”) for an additional one year.  Each Lender, acting in its sole discretion,
shall, by notice to the Company and the Administrative Agent given not later
than the 20th day (or such later day as shall be acceptable by the
Company) following the date of the Company’s notice, advise the Company whether
or not such Lender


 


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agrees to such extension; provided that any Lender that does not
so advise the Company shall be deemed to have denied such Extension Request.  The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.


 


(b) 
Replacement of Non-extending Lenders. 
The Company shall have the right at any time on or prior to the relevant
Extension Date to replace any non-extending Lender with, and otherwise add to
this Agreement, one or more other lenders (which may include any Lender) (each
an “Additional Commitment Lender”) in each case with the consent of the
Administrative Agent, each Issuing Lender and the Swingline Lender (such
consent in each case not to be unreasonably withheld).  Each Additional Commitment Lender which has
been so approved shall enter into an agreement in form and substance
satisfactory to the Company and the Administrative Agent pursuant to which such
Additional Commitment Lender shall, effective as of the Extension Date, undertake
a Commitment and (if not already a Lender under this Agreement) become a Lender
hereunder (and, if such Additional Commitment Lender is already a Lender, agree
to increase its Commitment hereunder) in the agreed amount as long as each
Non-extending Lender being replaced is paid in full.


 


(c) 
Effectiveness of Extension.  If
(and only if) the total of the Commitments of the Lenders that have agreed in
connection with any Extension Request to extend the Existing Commitment
Termination Date and the additional Commitments of the Additional Commitment
Lenders shall be at least 50% of the total Commitments in effect immediately
prior to the Extension Date, then, effective as of the Extension Date, the
Commitment Termination Date, with respect to the Commitment of each Lender that
has agreed to so extend its Commitment and of each Additional Commitment Lender
shall be extended to the date falling one year after the Existing Commitment
Termination Date (or, if such date is not a Business Day, such Commitment
Termination Date as so extended shall be the next preceding Business Day) and
each Additional Commitment Lender shall thereupon become a “Lender” for all
purposes of this Agreement.


 


Notwithstanding
the foregoing, the extension of the Existing Commitment Termination Date shall
not be effective with respect to any Lender unless as of the relevant Extension
Date (i) no Default shall have occurred and be continuing and (ii) the
representations and warranties of the Obligors set forth in this Agreement and
the other Loan Documents shall be true and complete on and as of such date with
the same force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date) (and the Administrative Agent shall
have received a certification to such effect from a Financial Officer of the
Company, together with such evidence and other related documents as the
Administrative Agent may reasonably request with respect to the Obligors’
authorization of the extension and their respective obligation’s hereunder).


 


Notwithstanding
anything herein to the contrary, with respect to the Commitment of any Lender
that has not approved any Extension Request, the Commitment Termination Date
shall remain unchanged.


 


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SECTION 2.14.  Interest.


 


(a) 
Syndicated ABR Loans.  The
Loans constituting each Syndicated ABR Borrowing to the Company or any
Domestic Subsidiary Borrower shall bear interest at a rate per annum equal to
the Alternate Base Rate plus, for any Commitment Utilization Day, the Additional
Margin.


 


(b) 
Swingline Loans.  The Swingline
Loans shall bear interest at a rate per annum equal to the Alternate Base Rate.


 


(c) 
Syndicated Eurocurrency Loans. 
The Loans constituting each Syndicated Eurocurrency Borrowing shall bear
interest at a rate per annum equal to the Adjusted Eurocurrency Rate for the
Interest Period for such Borrowing plus the Applicable Rate plus,
with respect to any Syndicated Eurocurrency Loan denominated in Dollars, for any
Commitment Utilization Day, the Additional Margin.


 


(d) 
Competitive Eurocurrency Loans. 
Each Competitive Eurocurrency Borrowing shall bear interest at a rate
per annum equal to the Eurocurrency Rate for the Interest Period for such
Borrowing plus (or minus, as applicable) the Competitive Bid Margin
applicable to such Loan.


 


(e) 
Fixed Rate Loans.  Each Fixed Rate
Loan shall bear interest at a rate per annum equal to the Fixed Rate applicable
to such Loan.


 


(f) 
Default Interest.  Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by any Borrower or any Account Party hereunder is not paid when
due, whether at stated maturity, upon acceleration, by mandatory prepayment 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 above 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.


 


(g) 
Payment of Interest.  Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Syndicated Loans, upon termination of the
Commitments; provided that (i) interest accrued pursuant to
paragraph (e) 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 a Syndicated ABR Loan prior to the Commitment Termination Date),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Syndicated Eurocurrency Borrowing denominated in Dollars
prior to the end of the Interest Period therefor, accrued interest on such
Borrowing shall be payable on the effective date of such conversion.


 


(h) 
Computation.  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 and interest on all Loans
denominated in Pounds Sterling 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 Eurocurrency Rate or


 


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Eurocurrency Rate shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.


 


SECTION 2.15.  Alternate Rate of Interest.  If prior to the commencement of the Interest
Period for any Eurocurrency Borrowing (the Currency of such Borrowing herein
called the “Affected Currency”):


 


(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 Eurocurrency Rate
(in the case of a Syndicated Eurocurrency Borrowing) or the Eurocurrency Rate
(in the case of a Competitive Eurocurrency Borrowing) for the Affected Currency
for such Interest Period; or


 


(b)  the Administrative Agent is advised by the
Lenders of the affected Sub-Commitment having more than 50% of such
Sub-Commitment (or, in the case of a Competitive Eurocurrency Borrowing, any
Lender that is required to make a Loan included in such Borrowing) that the
Adjusted Eurocurrency Rate (in the case of a Syndicated Eurocurrency Borrowing)
or the Eurocurrency Rate (in the case of a Competitive Eurocurrency Borrowing)
for the Affected Currency for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their respective 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 Syndicated Borrowing to, or the continuation of
any Syndicated Borrowing as, a Syndicated Eurocurrency Borrowing denominated in
the Affected Currency shall be ineffective and, if the Affected Currency is
Dollars, such Syndicated Borrowing (unless prepaid) shall be continued as, or
converted to, a Syndicated ABR Borrowing, (ii) if the Affected
Currency is Dollars and any Borrowing Request requests a Syndicated
Eurocurrency Borrowing denominated in Dollars, such Borrowing shall be made as
a Syndicated ABR Borrowing, (iii) if the Affected Currency is a
Foreign Currency, any Borrowing Request that requests a Syndicated Eurocurrency
Borrowing denominated in the Affected Currency shall be ineffective and (iv) any
request by the Company for a Competitive Eurocurrency Borrowing denominated in
the Affected Currency shall be ineffective; provided that if the
circumstances giving rise to such notice do not affect all the Lenders, then
requests by the Company for Competitive Eurocurrency Borrowings denominated in
the Affected Currency may be made to Lenders that are not affected thereby.


 


SECTION 2.16.  Increased Costs.


 


(a) 
Increased Costs Generally.  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 account of, or credit extended by, any


 


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Lender (except any such reserve requirement reflected
in the Adjusted Eurocurrency Rate) or any Issuing Lender; or


 


(ii)  impose on any Lender or any Issuing Lender or
the London interbank market any other condition affecting this Agreement or
Eurocurrency Loans or Fixed Rate Loans made by such Lender or any Letter of
Credit or participation therein;


 


and the result of any of
the foregoing shall be to increase the cost to such Lenders of making or
maintaining any Eurocurrency Loan or Fixed Rate Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
such Issuing Lender of participating in, issuing or maintaining any Letter of
Credit or to reduce the amount of any sum received or receivable by such Lender
or the Issuing Lender hereunder (whether of principal, interest or otherwise),
then the Company will pay to such Lender or such Issuing Lender, as the case
may be, in Dollars, such additional amount or amounts as will compensate such
Lender or such Issuing Lender, as the case may be, for such additional costs
incurred or reduction suffered.


 


(b) 
Capital Requirements.  If any
Lender or any Issuing 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 or such Issuing Lender’s capital or on the capital of
such Lender’s or such Issuing Lender’s holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Lender,
to a level below that which such Lender or such Issuing Lender or such Lender’s
or such Issuing Lender’s holding company could have achieved but for such
Change in Law (taking into consideration such Lender’s or such Issuing Lender’s
policies and the policies of such Lender’s or such Issuing Lender’s holding
company with respect to capital adequacy), then from time to time the Company will
pay to such Lender or such Issuing Lender, as the case may be, in Dollars, such
additional amount or amounts as will compensate such Lender or such Issuing
Lender or such Lender’s or such Issuing Lender’s holding company for any such
reduction suffered.


 


(c) 
Certificates from Lenders.  A
certificate of a Lender or an Issuing Lender setting forth the amount or
amounts, in Dollars, necessary to compensate such Lender or such Issuing Lender
or its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Company and shall be conclusive
absent manifest error.  The Company shall
pay such Lender or such Issuing Lender, as the case may be, the amount shown as
due on any such certificate within 10 days after receipt thereof.


 


(d) 
Delay in Requests.  Failure or
delay on the part of any Lender or any Issuing Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or
such Issuing Lender’s right to demand such compensation; provided that
the Company shall not be required to compensate a Lender or an Issuing Lender
pursuant to this Section for any increased costs or reductions incurred
more than six months prior to the date that such Lender or such Issuing Lender,
as the case may be, notifies the Company of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s or such Issuing 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 six-month period referred to above shall be extended to
include the period of retroactive effect thereof.


 


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(e) 
Competitive Loans. 
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.


 


SECTION 2.17.  Break Funding Payments.  In the event of (a) the payment of any
principal of any Eurocurrency Loan or Fixed Rate Loan other than on the last
day of an Interest Period therefor (including as a result of an Event of
Default), (b) the conversion of any Syndicated Eurocurrency Loan prior to the
last day of an Interest Period therefor, (c) the failure to borrow,
convert, continue or prepay any Eurocurrency Loan or Fixed Rate Loan on the
date specified in any notice delivered pursuant hereto (regardless of whether
such notice is permitted to be revocable under Section 2.11(c) and is
revoked in accordance herewith), (d) the failure to borrow any Competitive
Loan after accepting the Competitive Bid to make such Loan, or (e) the
assignment as a result of a request by the Company pursuant to Section 2.20(b) of
any Syndicated Eurocurrency Loan prior to the last day of an Interest Period
therefor or of any Competitive Loan, then, in any such event, the Company shall
compensate each Lender for the loss, cost and expense attributable to such
event.  In the case of a Eurocurrency
Loan, the loss to any Lender attributable to any such event shall be deemed to
include an amount determined by such Lender to be equal to the excess, if any,
of (i) the amount of interest that such Lender would pay for a deposit
equal to the principal amount of such Loan denominated in the Currency of such
Loan for the period from the date of such payment, conversion, failure or
assignment to the last day of the then current Interest Period for such Loan
(or, in the case of a failure to borrow, convert or continue, the duration of
the Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
Adjusted Eurocurrency Rate for such Currency (in the case of a Syndicated
Eurocurrency Loan) or the Eurocurrency Rate for such Currency (in the case of a
Competitive Eurocurrency Loan) for such Interest Period, over (ii) the
amount of interest that such Lender would earn on such principal amount for
such period if such Lender were to invest such principal amount for such period
at the interest rate that would be bid by such Lender (or an affiliate of such
Lender) for deposits denominated in such Currency from other banks in the
eurocurrency market at the commencement of such period.  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 shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.


 


SECTION 2.18.  Taxes.


 


(a) 
Payments Free of Taxes.  Any and
all payments by or on account of any obligation of any Borrower or any Account
Party hereunder or under any other Loan Document shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes; provided
that if any Borrower or any Account Party 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, a Lender or an Issuing 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 or such Account Party, as
applicable, shall make


 


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such deductions and (iii) such Borrower or such Account Party, as
the case may be, shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.


 


(b) 
Payment of Other Taxes.  In
addition, each Borrower and each Account Party shall pay any Other Taxes
imposed on or incurred by the Administrative Agent, a Lender or an Issuing
Lender to the relevant Governmental Authority in accordance with applicable
law.


 


(c) 
Indemnification.  Without
duplication of the obligations of each Borrower and each Account Party pursuant
to Section 2.18(a) or (b), each Borrower and each Account Party shall
indemnify the Administrative Agent, each Lender and each Issuing Lender, within
10 days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this paragraph) paid by
the Administrative Agent, such Lender or such Issuing Lender, as the case may
be, and any penalties, interest and reasonable out-of-pocket expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority, in each case on payments by or on account of any
obligations of any Borrower or any Account Party hereunder or under any other
Loan Document.  A certificate as to the
amount of such payment or liability delivered to a Borrower or a Account Party
by a Lender or an Issuing Lender, or by the Administrative Agent on its own
behalf or on behalf of a Lender or an Issuing Lender, shall be conclusive
absent manifest error.


 


(d) 
Evidence of Payments.  As soon as
practicable after any payment of Indemnified Taxes or Other Taxes by a Borrower
or an Account Party to a Governmental Authority, such Borrower or such Account
Party shall deliver to the Administrative Agent for its own account, the
account of the relevant Lender or the relevant Issuing Lender, as the case may
be, 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) 
U.S. Law Exemptions; Required Certificates.  Any Lender or Issuing Lender that is entitled
to an exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Company or any Domestic Subsidiary Obligor is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement or under any other Loan Document shall deliver to
the Company or such Domestic Subsidiary Obligor, as the case may be (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by such Borrower or such Domestic
Subsidiary Obligor, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.


 


Without
limiting the foregoing, each Non-U.S. Lender, with respect to Loans made to the
Company or any Domestic Subsidiary Borrower, or Letters of Credit issued for
the account of the Company or any Domestic Subsidiary Account Party, shall
deliver to the Company, each Domestic Subsidiary Borrower and each Domestic
Account Party for account of which such Non-U.S. Lender has issued a Letter of
Credit in its capacity as an Issuing Lender (if any), with copies to the
Administrative Agent, two copies of either U.S. Internal Revenue Service Form W-8BEN
or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming


 


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exemption from the withholding of U.S. federal income tax under Section 871(h) or
881(c) of the Code with respect to payments of “portfolio interest,” a
certificate representing that such Non-U.S. Lender is not (i) a “bank” for
purposes of Section 881(c) of the Code, (ii) a ten-percent
shareholder of the Company (within the meaning of Section 871(h)(3)(B) of
the Code) or (iii) a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code), and a Form W-8BEN,
or any subsequent versions thereof or successors thereto, in all cases properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or a reduced rate of, withholding of U.S. federal income tax on all
payments by or on account of any obligation of the Company or (if applicable)
such Domestic Subsidiary Borrower or such Domestic Subsidiary Account Party
under this Agreement or under any other Loan Document.  Such forms shall be delivered by each such Non-U.S.
Lender on or before the date it becomes a party to this Agreement.  In addition, each such Non-U.S. Lender shall
deliver such forms immediately prior to the obsolescence or invalidity of any
form previously delivered by such Non-U.S. Lender.  Each such Non-U.S. Lender shall promptly
notify the Company and (if applicable) such Domestic Subsidiary Borrower or
such Domestic Subsidiary Account Party at any time it determines that it is no
longer in a position to provide any previously delivered certificate to the
Person(s) to whom such certificate was previously delivered (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).


 


In the
event the Administrative Agent, any Issuing Lender or any Lender shall become
subject to Taxes because of its failure to deliver a form required under this
Section, the Company (and, if applicable, the relevant Borrower or the relevant
Account Party) shall take such steps as the Administrative Agent, such Issuing
Lender or such Lender, as the case may be, shall reasonably request to assist
it to recover such Taxes;
provided that, in the reasonable judgment of the Company (or such
Borrower or Account Party), such steps shall not subject the Company (or such
Borrower or Account Party) to any unreimbursed cost or expense and would not
otherwise be disadvantageous to the Company (or such Subsidiary or Account
Party) in any material respect.


 


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


 


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(g) 
Foreign Subsidiary Borrower Exemptions; Required Certificates.  If the Administrative Agent or any Multicurrency
Lender, Approving Issuing Lender or Approving Relevant Lender is entitled to an
exemption from or reduction in the rate of the imposition, deduction or
withholding of any Indemnified Tax or Other Tax under the laws of the
jurisdiction in which any Foreign Subsidiary Borrower is organized or engaged
in business, or any treaty to which such jurisdiction is a party, with respect
to payments by such Foreign Subsidiary Borrower under this Agreement or any
other Loan Document, then the Administrative Agent or such Lender (as the case
may be) shall deliver to such Foreign Subsidiary Borrower or the relevant
Governmental Authority, in the manner and at the time or times prescribed by
applicable law or as reasonably requested by the Company (at least 60 days
prior to the due date required for submission thereof), such properly completed
and executed documentation prescribed by applicable law or reasonably requested
by the Company as will permit such payments to be made without the imposition,
deduction or withholding of such Indemnified Tax or Other Tax or at a reduced
rate, provided that the Administrative Agent or such Lender is legally
entitled to complete, execute and deliver such documentation and in its
reasonable judgment such completion, execution or submission would not
materially prejudice its commercial or legal position or require disclosure of
information it considers confidential or proprietary.


 


SECTION 2.19.  Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.


 


(a) 
Payments by Obligors.  (i) 
Each Obligor shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of
LC Disbursements, or under Section 2.16, 2.17 or 2.18, or otherwise)
or under any other Loan Document (except to the extent otherwise provided
therein) on the date when due, in immediately available funds, without set-off
or counterclaim.  Any amounts received
after 12:00 noon, Local Time on any such due 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 the Administrative Agent’s Account, except as otherwise
expressly provided in the relevant Loan Document and except payments to be made
directly to an Issuing Lender or the Swingline Lender as expressly provided
herein and payments pursuant to Sections 2.16, 2.17, 2.18 and 10.03, which
shall be made directly to the Persons entitled thereto.  The Administrative Agent shall distribute any
such payments received by it for account of any other Person to the appropriate
recipient promptly following receipt thereof. 
If any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business Day
and, in the case of any payment accruing interest, interest thereon shall be
payable for the period of such extension.


 


(ii) 
Prior to any repayment of any Borrowings hereunder (other than the repayment in
full of all outstanding Borrowings on the scheduled date of such repayment),
the Borrowers shall select the Borrowing or Borrowings to be paid and shall
notify the Administrative Agent by telephone (confirmed by telecopy) of such
selection not later than 11:00 a.m., New York City time, three Business
Days before the scheduled date of such repayment; provided that each
repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings
before any other Borrowings.  If a
Borrower fails to make a timely selection of the Borrowing or Borrowings to be
repaid (in accordance with the immediately


 


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preceding sentence) or prepaid (in accordance with Section 2.11(c)),
such payment shall be applied, first, to pay any outstanding
ABR Borrowings and, second, to other Borrowings in the order of the
remaining duration of their respective Interest Periods (the Borrowing with the
shortest remaining Interest Period to be repaid first), and for these purposes,
Competitive Loans shall be deemed to be in the same Class as Syndicated
Loans.  Each repayment or prepayment of a
Syndicated Borrowing shall be applied ratably to the Loans included in such
Borrowing


 


(iii) 
All amounts owing under this Agreement (including facility fees, payments
required under Section 2.16, and payments required under Section 2.17
relating to any Loan denominated in Dollars, but not including principal of,
and interest on, any Loan denominated in any Foreign Currency, payments
relating to any such Loan required under Section 2.17, reimbursement
obligations in respect of LC Disbursements made pursuant to Letters of Credit
denominated in any Foreign Currency, interest on such LC Disbursements and fees
required to be paid pursuant to Section 2.12(b) which the relevant Account
Party and applicable Issuing Lender have agreed shall be paid in any Foreign
Currency, to the extent payable in such Foreign Currency) or under any other
Loan Document (except to the extent otherwise provided therein) are payable in
Dollars.  Notwithstanding the foregoing,
if any Borrower or any Account Party shall fail to pay any principal of any
Loan when due (whether at stated maturity, by acceleration, by mandatory
prepayment or otherwise) or shall fail to pay any reimbursement obligation in
respect of any LC Disbursement when due, the unpaid portion of such Loan or
reimbursement obligation shall, if such Loan or reimbursement obligation is not
denominated in Dollars, automatically be redenominated in Dollars on the due
date thereof (or, in the case of any such Loan, if such due date is a day other
than the last day of the Interest Period therefor, on the last day of such Interest
Period) in an amount equal to the Dollar Equivalent thereof and such principal
or reimbursement obligation shall be payable on demand; and if any Borrower or
any Account Party shall fail to pay any interest on any Loan that is not
denominated in Dollars or on any LC Disbursement made pursuant to a Letter of
Credit that is not denominated in Dollars, such interest shall automatically be
redenominated in Dollars on the due date therefor (or, in the case of any such
Loan, if such due date is a day other than the last day of the Interest Period
therefor, on the last day of such Interest Period) in an amount equal to the
Dollar Equivalent thereof on the date of such redenomination and such interest
shall be payable on demand.


 


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


 


(c) 
Pro Rata Treatment.  Except to the
extent otherwise provided herein:  (i) subject
to Section 2.03(c), each Syndicated Borrowing to a Borrower shall be made
from the relevant Lenders, each payment of facility fees under Section 2.12
shall be made for account of the Lenders, and each termination or reduction of
the amount of the Commitments, the Dollar Sub-Commitments or the Multicurrency
Sub-Commitments under Section 2.09 shall be applied to the respective
Commitments and Sub-Commitments of the Lenders, pro rata according to the


 


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amounts of their respective Commitments and Sub-Commitments; (ii) subject
to Section 2.03(c), each Syndicated Borrowing to a Borrower shall be
allocated pro rata among the relevant Lenders to such Borrower according to the
amounts of their respective Commitments or Sub-Commitments (in the case of the
making of Syndicated Loans) or their respective Loans that are to be included
in such Borrowing (in the case of conversions and continuations of Loans); (iii) each
payment or prepayment of principal of Syndicated Loans by a Borrower shall be
made for account of the relevant Lenders pro rata in accordance with the
respective unpaid principal amounts of the Syndicated Loans made to such
Borrower held by them; and (iv) each payment of interest on Syndicated
Loans by a Borrower shall be made for account of the relevant Lenders pro rata
in accordance with the amounts of interest on such Loans then due and payable
to the respective Lenders.


 


(d) 
Sharing of Payments by Lenders. 
If any Lender shall, by exercising any right of set-off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Syndicated Loans or participations in LC Disbursements or Swingline
Loans resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Syndicated Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon then due
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 Syndicated Loans and participations in LC Disbursements and
Swingline 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
Syndicated Loans and participations in LC Disbursements and Swingline
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 any Borrower
or any Subsidiary Account Party 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 or
participations in LC Disbursements to any assignee or participant, other
than to any Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). 
Each Borrower and each Subsidiary Account Party consent to the foregoing
and agree, to the extent they may effectively do so under applicable law, that
any Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against such Borrower or such Subsidiary Account Party rights of set-off
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of such Borrower or such Subsidiary Account Party in the
amount of such participation.


 


(e) 
Presumptions of Payment.  Unless
the Administrative Agent shall have received notice from the Company or the relevant
Borrower or Account Party prior to the date on which any payment is due to the
Administrative Agent for account of a Lender or an Issuing Lender hereunder
that the Company, such Borrower or such Account Party, as the case may be, will
not make such payment, the Administrative Agent may assume that the Company, such
Borrower or such Account Party, as the case may be, has made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to such Lender or such Issuing Lender, as the case may be, the
amount due.  In such event, if the
Company, such Borrower or such Account Party has not in fact made such payment,
then each of the relevant


 


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Lenders or the relevant Issuing Lender, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or such Issuing 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 Federal Funds
Effective Rate (if such amount is denominated in Dollars) or at the overnight
London interbank offered rate for the relevant Agreed Foreign Currency
determined by the Administrative Agent in good faith (if such amount is
denominated in such Currency).


 


(f) 
Certain Deductions by the Administrative Agent.  If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.06(e), 2.07(b) or 2.19(e),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are
fully paid.


 


(g) 
Payments in Foreign Currencies. 
With respect to the payment of any amount denominated in any Foreign
Currency, the Administrative Agent shall not be liable to any Borrower, any
Account Party, any Lender or any Issuing Lender in any way whatsoever for any
delay, or the consequences of any delay, in the crediting to any account of any
amount required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the
date required by this Agreement, the payment of such amount in immediately
available, freely transferable, cleared funds (in such Foreign Currency) to the
account of any Lender or any Issuing Lender in the Principal Financial Center
with respect to such Foreign Currency which the relevant Borrower, the relevant
Account Party, such Lender or such Issuing Lender, as the case may be, shall
have specified for such purpose.  For the
purposes of this paragraph, “all relevant steps” means all such steps as may be
prescribed from time to time by the regulations or operating procedures of such
clearing or settlement system as the Administrative Agent may from time to time
determine for the purpose of clearing or settling payments in such Foreign
Currency.


 


SECTION 2.20.  Mitigation Obligations; Replacement of
Lenders.


 


(a) 
Designation of a Different Lending Office.  If any Lender or any Issuing Lender requests
compensation under Section 2.16, or if any Borrower or any Account Party
is required to pay any additional amount to any Lender or any Governmental
Authority for account of any Lender or any Issuing Lender pursuant to Section 2.18,
then such Lender or such Issuing Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans, LC
Disbursements or participations in LC Disbursements hereunder (as applicable)
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender or such Issuing
Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.16 or 2.18, as the case may be,
in the future and (ii) would not subject such Lender or such Issuing
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender or such Issuing Lender; provided that, upon any
such change in any lending office or assignment, such Lender or such Issuing
Lender shall provide or cause to be delivered to the Administrative Agent and
the Company (and, if applicable, the relevant Subsidiary Obligor) the
appropriate forms specified in and to the extent by Section 2.18.  The Company hereby agrees to pay all
reasonable costs and


 


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expenses incurred by any Lender or any Issuing Lender in connection
with any such designation or assignment.


 


(b) 
Replacement of Lenders or Issuing Lenders.  If any Lender or any Issuing Lender requests
compensation under Section 2.16, or if any Borrower or any Account Party
is required to pay any additional amount to any Lender, any Issuing Lender or
any Governmental Authority for account of any Lender or any Issuing Lender pursuant
to Section 2.18, then the Company may, at its sole expense and effort,
upon notice to such Lender or such Issuing Lender and the Administrative Agent,
require such Lender or such Issuing Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in Section 10.04),
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 or another Issuing Lender, if
a Lender or Issuing Lender accepts such assignment); provided that (i) the
Company shall have received the prior written consent of the Administrative
Agent, each Issuing Lender and the Swingline Lender (which consent in each case
shall not unreasonably be withheld), (ii) such Lender or such Issuing
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and Swingline Loans (other than Competitive Loans), LC
Disbursements and Swingline Loans and participations in LC Disbursements and
Swingline Loans (as applicable), 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 relevant Borrower
or Account Party (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section 2.16
or payments required to be made pursuant to Section 2.18, such assignment
will result in a reduction in such compensation or payments.  A Lender or an Issuing 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 such Issuing Lender or otherwise, the
circumstances entitling the Company to require such assignment and delegation
cease to apply.


 


SECTION 2.21.  Designation of Subsidiary Obligors.


 


(a) 
Designation of Subsidiary Account Parties.  Subject to the terms and conditions of this Section (including
paragraph (c) of this Section), the Company may, at any time or from time
to time upon not less than 20 Business Days’ notice to the Administrative Agent
(or such other period which is acceptable to the Administrative Agent), request
that a wholly-owned Subsidiary specified in such notice become a party to this
Agreement as a Subsidiary Account Party; provided that each such
designation shall be subject to the prior approval of the Administrative Agent
and (with respect to any Foreign Subsidiary to be so designated) each Issuing
Lender (which may be a new Issuing Lender designated by the Company in
accordance with the terms hereof) that may be requested to issue Letters of
Credit for the account of such Subsidiary Account Party (which approval in each
case shall not be unreasonably withheld). 
The Administrative Agent shall upon receipt of such notice from the
Company promptly notify each Issuing Lender of the Company’s designation.  In the case of the designation of a Foreign
Subsidiary as a Subsidiary Account Party, each Issuing Lender shall inform the
Administrative Agent within 10 Business Days of such notification from the
Administrative Agent (or such other period as may be specified by the
Administrative Agent in the applicable designation notice), as to whether or
not it will issue Letters of Credit for account


 


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of such Foreign Subsidiary Account Party.  An Issuing Lender that does not so inform the
Administrative Agent within the 10 Business Day period (or such other period as
designated by the Administrative Agent in the applicable designation notice) will
be deemed to have informed the Administrative Agent that it will not issue
Letters of Credit to such Foreign Subsidiary Account Party.  Each such approving Issuing Lender will
evidence its willingness to issue Letters of Credit for account of such Foreign
Subsidiary Account Party, on and subject to the terms of this Agreement, by
executing and returning to the Administrative Agent a copy of the Designation
Letter.  Upon such approval and the
satisfaction of the conditions specified in paragraph (c) of this Section,
such Subsidiary shall become a party to this Agreement as a Subsidiary Account
Party and entitled to request the issuance of Letters of Credit for its own
account from each Approving Issuing Lender with respect to such Subsidiary on
and subject to the terms and conditions of this Agreement, the Administrative
Agent shall promptly notify the Lenders of such designation.


 


(b) 
Designation of Subsidiary Borrowers. 
Subject to the terms and conditions of this Section (including
paragraph (c) of this Section), the Company may, at any time or from time
to time upon not less than 20 Business Days’ notice to the Administrative Agent
(or such other period which is acceptable to the Administrative Agent), request
that a wholly-owned Subsidiary specified in such notice become a party to this
Agreement as a Subsidiary Borrower; provided that each such designation
shall be subject to the prior approval of the Administrative Agent (which
approval shall not be unreasonably withheld).  The Administrative Agent shall upon receipt of
such notice from the Company promptly notify each Lender of the Company’s
designation.   In the case of the designation of a Foreign
Subsidiary as a Subsidiary Borrower, each Multicurrency Lender shall inform the
Administrative Agent within 10 Business Days of notification from the
Administrative Agent (or such other period as may be specified by the
Administrative Agent in the applicable designation notice), whether or not it
will make Syndicated Loans to such Foreign Subsidiary Borrower.  A Multicurrency Lender that does not so inform
the Administrative Agent within the 10 Business Day period (or such other
period as designated by the Administrative Agent in the applicable designation
notice) will be deemed to have informed the Administrative Agent that it will
not make Syndicated Loans to such Foreign Subsidiary Borrower.  Each such approving Multicurrency Lender will
evidence its willingness to make Syndicated Loans to such Foreign Subsidiary Borrower,
on and subject to the terms and conditions of this Agreement, by executing and
returning to the Administrative Agent a copy of the Designation Letter.  Upon such approval and the satisfaction of
the conditions specified in paragraph (c) of this Section, such Subsidiary
shall become a party to this Agreement as a Subsidiary Borrower and entitled to
borrow Loans (in the case of any Foreign Subsidiary Borrower, Syndicated Loans
only from the Approving Relevant Lenders with respect to such Borrower) on and
subject to the terms and conditions of this Agreement, the Administrative Agent
shall promptly notify the Lenders of such designation.   


 


(c) 
Conditions Precedent to Designation Effectiveness.  The designation by the Company of any
wholly-owned Subsidiary as a Subsidiary Account Party or Subsidiary Borrower
hereunder shall not become effective until the date on which the Administrative
Agent shall have received each of the following documents (each of which shall
be in satisfactory to the Administrative Agent in form and substance):


 


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(i)  Designation Letter.  A Subsidiary Account Party Designation Letter
or a Subsidiary Borrower Designation Letter, as applicable, duly completed and
executed by the Company and the relevant Subsidiary, delivered to the
Administrative Agent at least 5 Business Days before the date on which such
Subsidiary is proposed to become a Subsidiary Borrower;


 


(ii)  Opinion of Counsel.  If requested by the Administrative Agent, a favorable
written opinion (addressed to the Administrative Agent and the Lenders and
dated the date of the related Designation Letter) of counsel to such Subsidiary
satisfactory to the Administrative Agent in the jurisdiction in which such
Subsidiary is organized (the “Relevant Jurisdiction”), (and the Company
and such Subsidiary Borrower hereby and by delivery of such Designation Letter
instruct such counsel to deliver such opinion to the Lenders and the
Administrative Agent, if such opinion is so requested), as to such other
matters as the Administrative Agent may reasonably request (which may include the
due incorporation of such Subsidiary under the laws of the Relevant Jurisdiction,
the due authorization, execution and delivery by such Subsidiary of such
Designation Letter and of any Borrowings to made by it hereunder, the obtaining
of all licenses, approvals and consents of, and the making of all filings and
registrations with, any applicable Governmental Authority required in
connection therewith (or the absence of any thereof), and the legality,
validity and binding effect and enforceability thereof);


 


(iii)  Corporate Documents.  Such documents and certificates as the
Administrative Agent may reasonably request (including certified copies of the organizational
documents of such Subsidiary and of resolutions of its board of directors authorizing
such Subsidiary Borrower becoming a Borrower hereunder, and of all documents
evidencing all other necessary corporate or other action required with respect
to such Subsidiary Borrower becoming party to this Agreement);


 


(iv)  Process Agent.  Receipt by the Administrative Agent of a
process agent acceptance letter substantially in the form of Exhibit E in
respect of such Subsidiary Obligor; and


 


(v)  Other Documents.  Receipt of such other documents relating
thereto as the Administrative Agent or its counsel may reasonably request,
which may include other documents that are consistent with conditions for
Subsidiary Obligors set forth in Section 4.01.


 


(d) 
Termination of Subsidiary Obligors. 
The Company may, at any time at which (i) a Subsidiary Account Party
shall not be an Account Party with respect to an outstanding Letter of Credit
and which shall have no unpaid LC Disbursements or unpaid interest on any LC
Disbursements or (ii) no Loans or any other amounts hereunder or under any
other Loan Documents shall be outstanding to any Subsidiary Borrower, terminate
such Subsidiary Account Party as an Account Party or such Subsidiary Borrower
as a Borrower hereunder, respectively by delivering an executed notice thereof
(each a “Termination Letter”), substantially in the form of Exhibit F,
to the Administrative Agent.  Any
Termination Letter furnished hereunder shall be effective upon receipt thereof
by the Administrative Agent (which shall promptly so notify the relevant
Lenders and Issuing Lenders (as applicable)), (i) in the case of a
termination of a


 


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Subsidiary Account Party, all commitments of the Approving Issuing
Lender or Approving Issuing Lenders to issue Letters of Credit for account of
such Subsidiary Account Party and all of rights of such Subsidiary Account
Party hereunder shall terminate and such Subsidiary Account Party shall
immediately cease to be an Account Party hereunder and (ii) in the case of
a termination of a Subsidiary Borrower, all commitments of the relevant Lenders
to make Loans to such Subsidiary Borrower and all of rights of such Subsidiary
Borrower hereunder shall terminate and such Subsidiary Borrower shall
immediately cease to be a Borrower hereunder. 
Notwithstanding the foregoing, the delivery of a Termination Letter with
respect to any Subsidiary Obligor shall not terminate (i) any obligation
of such Subsidiary Obligor that remains unpaid at the time of such delivery
(including any obligation arising thereafter in respect of such Subsidiary
Obligor under Section 2.18) or (ii) the obligations of the Company
under Article IX with respect to any such unpaid obligations.


 


ARTICLE III



REPRESENTATIONS AND WARRANTIES


 


The Company
represents and warrants to the Lenders that:


 


SECTION 3.01.  Organization; Powers.  Each of the Company and its Subsidiaries (other
than its Immaterial Subsidiaries) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization and has
all requisite power and authority to carry on its business as now
conducted.  Each of the Company and its
Subsidiaries (other than its Immaterial Subsidiaries) is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure to be so qualified or in
good standing could not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.


 


SECTION 3.02.  Authorization; Enforceability.  The Transactions are within each Obligor’s
corporate, limited liability company or other like powers and have been duly
authorized by all necessary corporate, limited liability company or other like
action and, if required, by all necessary shareholder, member, partner or other
like action.  This Agreement has been
duly executed and delivered by each Obligor party hereto and constitutes a
legal, valid and binding obligation of each Obligor, enforceable in accordance
with its terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors’ rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).  Each of the other Loan Documents to which any
Obligor is a party, when executed and delivered by such Obligor will
constitute, a legal, valid and binding obligation of such Obligor, enforceable
in accordance with its terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors’ rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).


 


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SECTION 3.03.  Governmental Approvals; No Conflicts.  The Transactions (a) do not require any
consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or made and are
in full force and effect, (b) will not (i) violate in any material
respect any applicable law or regulation or any order of any Governmental
Authority binding upon the Company or any of its Subsidiaries or (ii) violate
the charter, by-laws or other organizational documents of the Company or any of
its Subsidiaries, (c) will not violate or result in a default under any
material indenture, agreement or other instrument binding upon the Company or
any of its Subsidiaries or assets, or give rise to a right thereunder to
require any payment to be made by any such Person, and (d) will not result
in the creation or imposition of any Lien on any asset of the Company or any of
its Subsidiaries.


 


SECTION 3.04.  Financial Condition; No Material Adverse
Change.


 


(a) 
Financial Condition.  The Company has
heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, shareholders’ equity and cash flows as of and for the
fiscal year ended December 31, 2004, reported on by its independent public
accountants.  Such financial statements
present fairly, in all material respects, the financial condition and results
of operations and cash flows of the Company and its Subsidiaries as of such
dates and for such periods in accordance with GAAP.


 


(b) 
No Material Adverse Change.  Since
December 31, 2004, there has been no material adverse change in the
business, financial condition, prospects or results of operations of the Company
and its Subsidiaries, taken as a whole.


 


SECTION 3.05.  Properties.


 


(a) 
Property Generally.  Each of the Company
and its Subsidiaries has good title to, or valid leasehold interests in, all
real and personal property material to the business of the Company and its
Subsidiaries, taken as a whole, subject only to Liens not prohibited by Section 6.01
and except for minor defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties for
their intended purposes.


 


(b) 
Intellectual Property.  Each of
the Company and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to the
business of the Company and its Subsidiaries, taken as a whole, and the use
thereof by the Company and its Subsidiaries does not infringe in any material
respect upon the rights of any other Person.


 


SECTION 3.06.  Litigation and Environmental Matters.


 


(a) 
Actions, Suits and Proceedings. 
Except as disclosed in the Company’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2004 (the “2004 10-K”)
and in Schedule 3.06(a), there are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority now pending against or, to the
knowledge of the Company, threatened against or affecting the Company or any of
its Subsidiaries that (i) could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect or (ii) involve this
Agreement, any other Loan Document or the Transactions.


 


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(b) 
Environmental Matters.  Except as
disclosed in the 2004 10-K and in Schedule 3.06(b) and except
with respect to any other matters that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, neither the Company
nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.


 


SECTION 3.07.  Investment and Holding Company Status.  Neither the Company nor any of its
Subsidiaries is (a) an “investment company” as defined in the Investment
Company Act of 1940, as amended, that is subject to registration under that Act
or (b) a “holding company” as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935, as amended.


 


SECTION 3.08.  Taxes. 
Each of the Company and its Subsidiaries has timely filed or caused to
be filed all Tax returns and reports required to have been filed and has paid
or caused to be paid all U.S. federal and other material Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which such Person has set aside on its books
adequate reserves or (b) where the failure to do so could not reasonably
be expected to result in a Material Adverse Effect.


 


SECTION 3.09.  ERISA. 
No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect.


 


SECTION 3.10.  Disclosure.  The Company has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.  None of the
reports, financial statements, certificates or other information furnished by
or on behalf of the Company to the Lenders in connection with the negotiation
of this Agreement and the other Loan Documents or delivered hereunder or
thereunder (as modified or supplemented by other information so furnished),
when taken as a whole, contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that (a) with respect to projected financial information, the Company represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time and (b) it is understood and agreed
that uncertainty is inherent in any forecasts or projections and no assurances
can be given by the Company of the future achievement of such performance.


 


SECTION 3.11.  Use of Credit.  Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin
Stock.


 


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SECTION 3.12.  Representations and Warranties of Certain Subsidiary
Obligors.  In the case of each
Subsidiary Obligor that is a Foreign Subsidiary: (a)  no authorizations,
approvals or consents of, and no filings or registrations with, any
Governmental Authority are necessary for the execution, delivery or performance
by such Subsidiary Obligor of the Designation Letter to which it is a party (if
applicable), this Agreement or any Loan Documents or for the validity or
enforceability of any thereof or for the Borrowings (if any) by or other
extensions of credit to such Subsidiary Obligors hereunder; (b) to ensure
the legality, validity, enforceability or admissibility in evidence of this
Agreement against such Subsidiary Obligor, it is not necessary that this
Agreement or any other document be filed or recorded with any Governmental
Authority or that any stamp or similar tax be paid on or in respect of this
Agreement, or any other document other than such filings and recordations that
have already been made and such stamp or similar taxes that have already been paid;
(c) each of this Agreement and the other Loan Documents to which such
Subsidiary Obligor is a party is in proper legal form under the law of the
jurisdiction of organization of each Subsidiary Obligor for the enforcement
thereof against each Subsidiary Obligor, and all formalities required in the
jurisdiction of organization of such Subsidiary Obligor for the validity and
enforceability of this Agreement and such other Loans Documents (including any
necessary registration, recording or filing with any court or other authority
in such jurisdiction) have been accomplished, and no Indemnified Taxes or Other
Taxes are required to be paid to such jurisdiction, or any political
subdivision thereof or therein, and no notarization is required, for the
validity and enforceability thereof; (d) such Subsidiary Obligor is
subject to administrative civil and commercial law with respect to its
obligations under the Loan Documents, and the execution, delivery and
performance of the Loan Documents by such Subsidiary Obligor constitute private
and commercial acts rather than public or governmental acts (to the extent that
these concepts are applicable under the law of its jurisdiction of
organization); and (e) under the laws of the jurisdiction in which such
Subsidiary Obligor is located, such Subsidiary Obligor is not entitled to
immunity on the ground of sovereignty or the like from the jurisdiction of any
court or from any action, suit or proceeding, or the service of process in
connection therewith, arising under the Loan Documents.


 


ARTICLE IV



CONDITIONS


 


SECTION 4.01.  Effective Date.  The obligations of the Lenders to make Loans
and of the Issuing Lenders to issue Letters of Credit hereunder shall not
become effective until the date on which the Administrative Agent shall have
received each of the following documents, each of which shall be satisfactory
to the Administrative Agent (and to the extent specified below, to each Lender)
in form and substance (or such condition shall have been waived in accordance
with Section 10.02):


 


(a)  Executed Counterparts.  From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page to this Agreement) that such party
has signed a counterpart of this Agreement.


 


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(b)  Opinion of Counsel to the Obligors.  A favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Sidley
Austin Brown & Wood LLP, counsel to the Obligors, substantially in the
form of Exhibit C and such other counsel for the Obligors satisfactory to
the Administrative Agent, and covering such other matters relating to the Obligors,
this Agreement or the Transactions as the Required Lenders shall reasonably
request (and the Company hereby instructs such counsel to deliver such opinion
to the Lenders and the Administrative Agent).


 


(c)  Opinion of Special New York Counsel to
JPMCB.  An opinion, dated the
Effective Date, of Milbank, Tweed, Hadley & McCloy LLP, special New
York counsel to JPMCB, substantially in the form of Exhibit D (and JPMCB
hereby instructs such counsel to deliver such opinion to the Lenders).


 


(d)  Corporate Documents.  Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of the Obligors, the authorization of
the Transactions and any other legal matters relating to the Obligors, this
Agreement or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.


 


(e)  Officer’s Certificate.  A certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the Company,
confirming compliance with the conditions set forth in clause (a) (but
excluding the first parenthetical thereof) and clause (b) of the first
sentence of Section 4.02.


 


(f)  Existing Credit Agreement.  Evidence that (i) the Company shall have
paid in full all principal of and interest accrued on the outstanding loans
under the Existing Credit Agreement and all fees, expenses and other amounts
owing by the Company thereunder, (ii) the Commitments (as defined in the
Existing Credit Agreement) have terminated and (iii) all letters of
credit, if any, issued and outstanding under the Existing Credit Agreement
shall have been replaced or, as applicable, continued hereunder.


 


(g)  Subsidiary Obligors.  For each Subsidiary Obligor designated as a
Subsidiary Borrower or a Subsidiary Account Party as of the Effective Date,
such documents and certificates required to be delivered under Section 2.21
to the extent such other documents and certificates are not already being
delivered hereunder.


 


(h)  Other Documents.  Such other documents as the Administrative
Agent or any Lender or special New York counsel to JPMCB may reasonably
request.


 


The
obligation of each Lender to make its initial extension of credit hereunder is
also subject to the payment by the Company of such fees as the Company shall
have agreed to pay to any Lender or the Administrative Agent in connection
herewith, including the reasonable fees and expenses of Milbank, Tweed, Hadley &
McCloy LLP, special New York counsel to JPMCB, in connection with the
negotiation, preparation, execution and delivery of this Agreement and the
other Loan Documents and the extensions of credit hereunder (to the extent


 


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that statements for such fees and expenses have been delivered to the Company
prior to the Effective Date).


 


The
Administrative Agent shall notify the Company and the Lenders of the Effective
Date, and such notice shall be conclusive and binding.  Notwithstanding the foregoing, the
obligations of the Lenders to make Loans and of the Issuing Lenders to issue
Letters of Credit hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 10.02) on
or prior to 3:00 p.m., New York City time, on May 6, 2005 (and, in
the event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).


 


SECTION 4.02.  Each Credit Event.  The obligation of each Lender to make any
Loan, and of the Issuing Lenders to issue, amend, renew or extend any Letter of
Credit, is additionally subject to the satisfaction of the following
conditions:


 


(a)  the representations and warranties of the Obligors
set forth in this Agreement (other than in Section 3.04(b) or,
insofar as clause (a) of the definition of “Material Adverse Effect” is
concerned, Section 3.06(a)) and in the other Loan Documents shall be true
and correct on and as of the date of such Loan or the date of issuance,
amendment, renewal or extension of such Letter of Credit (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date), as applicable; and


 


(b)  at the time of and immediately after giving
effect to such Loan or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.


 


The making of each Loan
and each issuance, amendment, renewal or extension of a Letter of Credit shall
be deemed to constitute a representation and warranty by the Company on the
date thereof as to the matters specified in the preceding sentence.


 


ARTICLE V



AFFIRMATIVE COVENANTS


 


Until
the Commitments have expired or been terminated and the principal of and
interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all
LC Disbursements shall have been reimbursed, the Company covenants and
agrees with the Lenders that:


 


SECTION 5.01.  Financial Statements; Ratings Change and
Other Information.  The Company will
furnish to the Administrative Agent and each Lender:


 


(a)  within 75 days after the end of each fiscal
year of the Company (or such lesser number of days within which the Company shall
be required to file its Annual Report on Form 10-K for such fiscal year
with the SEC), the audited consolidated balance sheet and related statements of
income, shareholders’ equity and cash flows of


 


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- 73 -


 


the Company
and its Subsidiaries as of the end of and for such year, setting forth in each
case in comparative form the figures for (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, all reported on by independent
public accountants of recognized national standing (without a “going concern”
or like qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of the Company and its Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;


 


(b)  within 40 days after the end of each of the
first three fiscal quarters of each fiscal year of the Company (or such lesser
number of days within which the Company shall be required to file its Quarterly
Report on Form 10-Q for such fiscal quarter with the SEC), the
consolidated balance sheet and related statements of income, shareholders’
equity and cash flows of the Company and its Subsidiaries as of the end of and
for such fiscal quarter and the then elapsed portion of such fiscal year,
setting forth in each case in comparative form the figures for (or, in the case
of the balance sheet, as of the end of) the corresponding period or periods of
the previous fiscal year, all certified by a Financial Officer of the Company as
presenting fairly in all material respects the financial condition and results
of operations of the Company and its Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;


 


(c)  within the time specified for delivery of
financial statements under clause (a) or (b) of this
Section, (I) a certificate of a Financial Officer (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with respect
thereto and (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.05 and (II) if there shall
have been any material change in GAAP or in the application thereof that
applies to the Company or any Subsidiary since the date of the audited
financial statements referred to in Section 3.04(a) (unless such
change shall theretofore have been notified under this subclause (II)), a
notification from a Financial Officer as to such change, specifying the effect
of such change on the financial statements accompanying such notification;


 


(d)  concurrently with any delivery of financial
statements under clause (a) of this Section, a certificate of the
accounting firm that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such financial
statements of any Default with respect to Section 6.05 (which certificate
may be limited to the extent required by accounting rules or guidelines);


 


(e)  promptly (i) after the filing thereof,
copies of all periodic and other reports, periodic and other certifications of
the chief executive officer and chief financial officer of the Company,
registration statements and other publicly available materials filed by the Company
or any of its Subsidiaries with the SEC, or any Governmental Authority
succeeding to any or all of the functions of the SEC, or with any national
securities exchange (other than any exhibits to any of the foregoing which are
too voluminous to furnish and which are made available by the Company or any of
its Subsidiaries on such Person’s website and any registration statement on Form S-8
or its equivalent) and


 


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- 74 -


 


(ii) after
the distribution thereof, copies of all financial statements, reports, proxy
statements and other materials distributed by the Company to its shareholders
generally;


 


(f)  promptly after Moody’s or S&P shall have
announced a change in the rating established or deemed to have been established
for the Index Debt, written notice of such rating change; and


 


(g)  promptly following any request therefor,
such other information regarding the operations, business affairs and financial
condition of the Company or any of its Subsidiaries, or compliance with the
terms of this Agreement and the other Loan Documents, as the Administrative
Agent or any Lender may reasonably request.


 


Financial
statements and other documents required to be delivered pursuant to clause (a),
(b), (d) or (e) of this Section (to the extent any such
financial statements or other documents are included in reports or other
materials otherwise filed with the SEC) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date on which (i) the
Company posts such financial statements or other documents, or provides a link
thereto, on the Company’s website on the Internet or (ii) such financial
statements or other documents are posted on the Company’s behalf on an Internet
or intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that: (i) the Company shall deliver
paper copies of such financial statements and other documents to the
Administrative Agent or any Lender that requests the Company to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender, as the case may be, and (ii) the
Company shall notify the Administrative Agent of the posting of any such
financial statements and other documents and provide to the Administrative
Agent electronic versions (i.e., soft copies) thereof.


 


SECTION 5.02.  Notices of Material Events.  The Company will furnish to the
Administrative Agent and each Lender prompt written notice of the following:


 


(a)  the occurrence of any Default; and


 


(b)  any event or development that results in, or
could reasonably be expected to result in, a Material Adverse Effect.


 


Each notice delivered
under this Section shall be accompanied by a statement of a Financial
Officer or other executive officer of the Company setting forth in reasonable
detail the nature of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.


 


SECTION 5.03.  Existence; Conduct of Business.  The Company will, and will cause each of its
Subsidiaries (other than any Immaterial Subsidiary) to, do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.02.


 


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SECTION 5.04.  Taxes and Other Obligations.  The Company will, and will cause each of its
Subsidiaries to, pay its obligations, including all Taxes, that, if not paid,
could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof
is being contested in good faith by appropriate proceedings, (b) the Company
or such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.


 


SECTION 5.05.  Maintenance of Properties; Insurance.  The Company will, and will cause each of its
Subsidiaries to, (a) keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, and (b) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as is
consistent with sound business practice.


 


SECTION 5.06.  Books and Records; Inspection Rights.  The Company will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true
and correct entries are made of all dealings and transactions in relation to
its business and activities.  The Company
will, and will cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers, all at such reasonable times and intervals and as often as
reasonably requested; provided that all costs and expenses of any such
visitation by the Administrative Agent (other than the initial visitation
during any calendar year) shall be for the account of the Administrative Agent
unless an Event of Default shall have occurred and be continuing, and all costs
and expenses of any such visitation by any Lender shall be for the account of
such Lender unless an Event of Default shall have occurred and be continuing.


 


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


 


SECTION 5.08.  Use of Proceeds and Letters of Credit.  The proceeds of the Loans will be used, and
Letters of Credit will be issued, only for general corporate purposes of the Company
and its Subsidiaries including acquisitions. 
No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations T, U and X as in effect from time to time.


 


SECTION 5.09.  Governmental Authorizations.  The Company will, and will cause each of its Subsidiaries to, promptly
from time to time obtain or make and maintain in full force and effect all
licenses, consents, authorizations and approvals of, and filings and
registrations with, any Governmental Authority from time to time necessary
under the laws of the jurisdiction in which each Subsidiary Obligor that is a
Foreign Subsidiary is located for the making and performance by each such Subsidiary
Obligor of the Loan Documents.


 


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- 76 -


 


ARTICLE VI



NEGATIVE COVENANTS


 


Until
the Commitments have expired or terminated and the principal of and interest on
each Loan and all fees payable hereunder have been paid in full and all Letters
of Credit have expired or terminated and all LC Disbursements shall have
been reimbursed, the Company covenants and agrees with the Lenders that:


 


SECTION 6.01.  Liens. 
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, except:


 


(a)  Permitted Encumbrances;


 


(b)  any Lien on any property or asset of the Company
or any of its Restricted Subsidiaries existing on the date hereof and listed in
Schedule 6.01; provided that (i) no such Lien shall extend to
any other property or asset of the Company or any of its Restricted
Subsidiaries and (ii) any 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;


 


(c)  any Lien existing on any property or asset
prior to the acquisition thereof by the Company or any Restricted Subsidiary or
existing on any property or asset of any Person that becomes a Subsidiary or is
merged or consolidated with the Company or any Subsidiary after the date hereof
prior to the time such Person becomes a Subsidiary or is so merged or
consolidated; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition, merger or
consolidation or such Person becoming a Subsidiary, as the case may be, (ii) such
Lien shall not apply to any other property or assets of the Company or any
Restricted Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition, merger or
consolidation 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;


 


(d)  Liens on fixed or capital assets acquired,
constructed or improved by the Company or any Restricted Subsidiary; provided
that (i) such security interests and the Indebtedness secured thereby are
incurred prior to or within 90 days after such acquisition or the completion of
such construction or improvement, (ii) the Indebtedness secured thereby
does not exceed the cost of acquiring, constructing or improving such fixed or
capital assets and (iii) such security interests shall not apply to any
other property or assets of the Company or any Restricted Subsidiary;


 


(e)  Liens arising in connection with an asset
securitization or other similar transaction, program or arrangement permitted
under Section 6.03(d); and


 


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- 77 -


 


(f)  Liens securing Indebtedness of the Company
or any of its Restricted Subsidiaries in an aggregate principal amount not
exceeding 15% of Consolidated Tangible Assets at any time.


 


SECTION 6.02.  Mergers, Consolidations, Etc.  The Company will not liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), nor will the Company
enter into any transaction of merger or consolidation or amalgamation, except
that the Company may merge with any other Person, provided that (a) the
Company shall be the continuing or surviving corporation and (b) immediately
after any such merger or consolidation, no Default shall have occurred and be
continuing.


 


SECTION 6.03.  Dispositions.  The Company will not, and will not permit any
of its Subsidiaries to, make any Disposition of its property, whether now owned
or hereafter acquired (including receivables and leasehold interests), except
for:


 


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


 


(b) 
Dispositions by any Subsidiary of property to the Company or any other
Subsidiary;


 


(c) 
Dispositions by the Company or any Subsidiary (other than Dispositions of a
type referred to in clause (d) below) of property that, together with all
other property of the Company and the Subsidiaries previously leased, sold or
disposed of (other than inventory in the ordinary course of business) as
permitted by this clause (c) during the twelve-month period ending with
the month in which any such Disposition occurs, do not constitute a Substantial
Portion of the property of the Company and the Subsidiaries; and


 


(d) 
Dispositions by the Company or any Subsidiary (other than Dispositions
permitted under clause (c) above) of property in connection with an asset
securitization or other similar transaction, program or arrangement so long as (i) the
amount of proceeds received by the Company or any Subsidiary in connection with
any such Disposition shall be reasonably equivalent to the fair value of the
property disposed of by the Company or such Subsidiary and (ii) the Attributable
Securitization Indebtedness outstanding at any time with respect to all such securitizations
and other similar transactions, programs and arrangements shall not exceed $300,000,000.


 


SECTION 6.04.  Transactions with Affiliates.  The Company will not, and will not permit any
of its Subsidiaries to, sell, lease or otherwise transfer any property or
assets to, or purchase, lease or otherwise acquire any property or assets from,
or otherwise engage in any other transactions with, any of its Affiliates,
except (a) transactions at prices and on terms and conditions not less
favorable to the Company or such Subsidiary than could be obtained on an arm’s-length
basis from unrelated third parties, (b) transactions solely between or
among the Company and its Subsidiaries, and (c) transactions with the BAC
Joint Venture consisting of (i) Dispositions permitted under Section 6.03(d) and
(ii) cash equity contributions by the Company and/or any Subsidiary to the
BAC Joint Venture.


 


SECTION 6.05.  Leverage Ratio.  The Company will not permit the Leverage
Ratio to exceed 3.0 to 1.0 at any time.


 


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ARTICLE VII



EVENTS OF DEFAULT


 


If any
of the following events (“Events of Default”) shall occur:


 


(a)  any Borrower or any Account Party shall fail
to pay any principal of any Loan or any reimbursement obligation in respect of
any LC Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;


 


(b)  any Borrower or any Account Party shall fail
to pay any interest on any Loan or any fee or any other amount (other than an
amount referred to in clause (a) of this Article) payable under this
Agreement or under any other Loan Document, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of
five Business Days or more;


 


(c)  any representation or warranty made or
deemed made by or on behalf of the Company or any of its Subsidiaries in or in
connection with this Agreement or any other Loan Document or any amendment or
modification hereof or thereof, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this
Agreement or any other Loan Document or any amendment or modification hereof or
thereof, shall prove to have been incorrect in any material respect when made
or deemed made or furnished;


 


(d)  the Company shall fail to observe or perform
any covenant, condition or agreement contained in Section 5.02 or 5.03
(with respect to the Company’s existence) or in Article VI;


 


(e)  any Obligor shall fail to observe or perform
any covenant, condition or agreement contained in this Agreement (other than
those specified in clause (a), (b), (c) or (d) of this
Article) or any other Loan Document and such failure shall continue unremedied
for a period of 30 or more days after notice thereof from the Administrative
Agent (given at the request of any Lender) to the Company;


 


(f)  the Company or any of its Subsidiaries shall
fail to make any payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as the same shall
become due and payable, or any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this clause (f) shall
not apply to secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness;


 


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(g)  an involuntary proceeding shall be commenced
or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or any of its Restricted
Subsidiaries (other than any Immaterial Subsidiary) or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any of its Restricted Subsidiaries (other
than any Immaterial Subsidiary) or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for a
period of 60 or more days or an order or decree approving or ordering any of
the foregoing shall be entered;


 


(h)  the Company or any of its Restricted
Subsidiaries (other than any Immaterial Subsidiary) shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (g) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any of its
Restricted Subsidiaries (other than any Immaterial Subsidiary) or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;


 


(i)  the Company or any of its Restricted
Subsidiaries (other than any Immaterial Subsidiary) shall become unable, admit
in writing its inability or fail generally to pay its debts as they become due;


 


(j)  one or more
judgments for the payment of money in an aggregate amount in excess of
$50,000,000 shall be rendered against the Company or any of its Subsidiaries or
any combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to attach or levy upon
any assets of the Company or any of its Subsidiaries to enforce any such
judgment;


 


(k)  an ERISA
Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Events that have occurred, could reasonably
be expected to result in liability of the Company and its Subsidiaries in an
aggregate amount exceeding $50,000,000; or


 


(l)  the
Guarantee of the Guarantor under Article IX shall for whatever reason be
terminated or cease to be in full force and effect, or the enforceability
thereof shall be contested by the Guarantor; or


 


(m)  a Change in
Control shall occur;


 


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- 80 -


 


then,
and in every such event (other than an event with respect to the Company
described in clause (g) or (h) of this Article), and at any
time thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the Company
(on behalf of itself and all other Obligors), take either or both of the
following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare
the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Obligors accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Obligors; in case of any
event with respect to the Company described in clause (g) or (h) of
this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Obligors accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Obligors; provided
that, in the case of any event with respect to any Subsidiary Obligor described
in clause (g) or (h) of this Article, (i) if such Subsidiary
Obligor is a Subsidiary Account Party, all commitments of each relevant Issuing
Lender to issue Letters of Credit for account of such Subsidiary Account Party
and all of rights of such Subsidiary Account Party hereunder shall automatically
terminate and such Subsidiary Account Party shall automatically cease to be entitled
to request the issuance, amendment, renewal or extension of any Letter of
Credit and (ii) if such Subsidiary Obligor is a Subsidiary Borrower, all
commitments of the relevant Lender or Lenders to make Loans to such Subsidiary
Borrower and all of rights of such Subsidiary Borrower hereunder shall
terminate and such Subsidiary Borrower shall immediately cease to be entitled
to request any Loans hereunder (provided that nothing herein shall affect the
obligations of any such Subsidiary Obligor with respect to any amounts
hereunder owing by such Subsidiary Obligor or the obligations of the Company
under Article IX with respect thereto).


 


ARTICLE VIII



THE ADMINISTRATIVE AGENT


 


Each
of the Lenders and the Issuing Lenders hereby irrevocably appoints the
Administrative Agent as its agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto.


 


The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent, and such Person and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Company or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent hereunder.


 


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The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the
foregoing, (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 or by the other
Loan Documents that the Administrative Agent is required to exercise in writing
as directed by the Required Lenders, and (c) except as expressly set forth
herein and in the other Loan Documents, 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, to the
extent required by this Agreement, all of the Lenders) or in the absence of its
own gross negligence or willful misconduct. 
The Administrative Agent shall be deemed not to have knowledge of any
Default unless and until 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 or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth
in Article IV or elsewhere herein or therein, 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 the Company or any of its
Subsidiaries), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.


 


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


 


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The
Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Lenders and the Company.  Upon
any such resignation, the Required Lenders shall have the right to appoint a
successor with (unless an Event of Default shall have occurred and be
continuing) the prior written consent of the Company (which consent shall not
be unreasonably withheld).  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’s
resignation shall nonetheless become effective and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and (2) the Required Lenders shall perform the duties of the
Administrative Agent (and all payments and communications provided to be made
by, to or through the Administrative Agent shall instead be made by or to each
Lender directly) until such time as the Required Lenders appoint a successor
agent as provided for above in this paragraph. 
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 (or retired) Administrative
Agent and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder (if not already discharged therefrom as provided
above in this paragraph).  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 its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.


 


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


 


Except
as otherwise provided in Section 10.02(b) with respect to this
Agreement, the Administrative Agent may, with the prior consent of the Required
Lenders (but not otherwise), consent to any modification, supplement or waiver
under any of the Loan Documents.


 


Notwithstanding
anything herein to the contrary, the Joint Lead Arrangers, Joint Bookrunners,
Syndication Agent and Documentation Agents named on the cover page of this
Agreement shall not have any duties or liabilities under this Agreement, except
in their capacity, if any, as Lenders.


 


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ARTICLE IX



GUARANTEE


 


SECTION 9.01.  The Guarantee.  The Guarantor hereby guarantees to each Issuing
Lender, each Lender and the Administrative Agent and their respective
successors and assigns the prompt payment in full when due (whether by
acceleration or otherwise) of the principal of and interest on the Loans made
by the Lenders to each Subsidiary Borrower and all reimbursement obligations in
respect of LC Disbursements and all interest thereon payable by each Subsidiary
Account Party pursuant to this Agreement (including in respect of any Letter of
Credit issued and continued under Section 2.06(l)), and all other amounts
from time to time owing to the Issuing Lenders, the Lenders or the
Administrative Agent by each Subsidiary Obligor under this Agreement or under
any of the other Loan Documents, in each case strictly in accordance with the
terms thereof (such obligations being herein collectively called the “Guaranteed
Obligations”).  The Guarantor hereby
further agrees that if any Subsidiary Obligor shall fail to pay in full when
due (whether by acceleration or otherwise) any of the Guaranteed Obligations,
the Guarantor will promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Guaranteed Obligations, the same will be promptly paid in full
when due (whether by acceleration or otherwise) in accordance with the terms of
such extension or renewal.


 


SECTION 9.02.  Obligations Unconditional.  The obligations of the Guarantor under Section 9.01
are absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of the obligations of the Subsidiary Obligors
under this Agreement, the other Loan Documents or any other agreement or
instrument referred to herein, or any substitution, release or exchange of any
other guarantee of or security for any of the Guaranteed Obligations, and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this Section that
the obligations of the Guarantor hereunder shall be absolute and unconditional
under any and all circumstances.  Without
limiting the generality of the foregoing, it is agreed that the occurrence of
any one or more of the following shall not alter or impair the liability of the
Guarantor hereunder, which shall remain absolute and unconditional as described
above:


 


(i)  at any time or from time to time, without
notice to the Guarantor, the time for any performance of or compliance with any
of the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;


 


(ii)  any of the acts mentioned in any of the
provisions of this Agreement or any other agreement or instrument referred to
herein shall be done or omitted;


 


(iii)  the maturity of any of the Guaranteed
Obligations shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under this
Agreement or any other agreement or instrument referred to herein shall be
waived or any other guarantee of any of the Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or


 


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(iv)  any lien or security interest granted to,
or in favor of, the Administrative Agent, any Issuing Lender or Issuing Lenders
or any Lender or Lenders as security for any of the Guaranteed Obligations
shall fail to be perfected.


 


The Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent, any
Issuing Lender or any Lender exhaust any right, power or remedy or proceed
against any Subsidiary Obligor under this Agreement or any other agreement or
instrument referred to herein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations.


 


The
Guarantor represents and warrants that in executing and delivering this
Agreement as guarantor, the Guarantor has (i) without reliance on any
Lender, any Issuing Lender, the Swingline Lender or the Administrative Agent or
any information received from any Lender, any Issuing Lender, the Swingline
Lender or the Administrative Agent and based upon such documents and
information the Guarantor deems appropriate, made an independent investigation
of the transactions contemplated hereby, the other Obligors, their respective
business, assets, operations, prospects and condition, financial or otherwise,
and any circumstances which may bear upon such transactions, the other Obligors
or the obligations and risks undertaken herein with respect to the Guaranteed
Obligations; (ii) adequate means to obtain from the other Obligors on a
continuing basis information concerning the other Obligors; (iii) full and
complete access to the Loan Documents and any other documents executed in
connection with the Loan Documents; and (iv) not relied and will not rely
upon any representations or warranties of any Lender, any Issuing Lender, the
Swingline Lender or the Administrative Agent not embodied herein or any acts
heretofore or hereafter taken by any Lender, any Issuing Lender, the Swingline
Lender or the Administrative Agent (including any review by any Lender, any
Issuing Lender, the Swingline Lender or the Administrative Agent of the affairs
of any other Obligor).


 


SECTION 9.03.  Reinstatement.  The obligations of the Guarantor under this Article shall
be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of any Subsidiary Obligor in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Guarantor agrees that it
will indemnify the Administrative Agent, each Issuing Lender and each Lender on
demand for all reasonable costs and expenses (including reasonable fees of
counsel) incurred by the Administrative Agent, such Issuing Lender or such
Lender in connection with such rescission or restoration, including any such reasonable
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.


 


SECTION 9.04.  Subrogation.  The Guarantor hereby agrees that until the
payment and satisfaction in full of all Guaranteed Obligations and the
expiration and termination of the Commitments of the Lenders under this
Agreement it shall not exercise any right or remedy arising by reason of any
performance by it of its guarantee in Section 9.01, whether by subrogation
or otherwise, against any Subsidiary Account Obligor or any other guarantor of
any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.


 


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SECTION 9.05.  Remedies.  The Guarantor agrees that, as between the Guarantor
on the one hand and the Administrative Agent, the Issuing Lenders and the
Lenders on the other, the obligations of each Obligor under this Agreement may
be declared to be forthwith due and payable as provided in Article VII
(and shall be deemed to have become automatically due and payable in the
circumstances provided in Article VII) for purposes of Section 9.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable)
as against such Subsidiary Obligor and that, in the event of such declaration
(or such obligations being deemed to have become automatically due and
payable), such obligations (whether or not due and payable by such Subsidiary Obligor)
shall forthwith become due and payable by the Guarantor for purposes of Section 9.01.


 


SECTION 9.06.  Instrument for the Payment of Money.  The Guarantor hereby acknowledges that the
guarantee in this Article constitutes an instrument for the payment of
money, and consents and agrees that any Issuing Lender, any Lender or the
Administrative Agent, at its sole option, in the event of a dispute by the Guarantor
in the payment of any moneys due hereunder, shall have the right to bring
motion-action under New York CPLR Section 3213.


 


SECTION 9.07.  Continuing Guarantee.  The guarantee in this Article is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising until the expiration or termination of the Commitments and payment in
full of the principal of and interest on each Loan and all fees and other
amounts payable hereunder and the expiration or termination of all Letters of
Credit and the reimbursement of all LC Disbursements.


 


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 1 N. Field
Court, Lake Forest, Illinois 60045, Attention of William Metzger, Vice
President and Treasurer (Telecopy No. (847) 735-4359; Telephone No. (847)
735-4364);


 


(ii)  if to a Subsidiary Obligor, to the Company
at the address set forth above (with a copy to such Subsidiary Obligor at its
address (or telecopy number), if any, (x) in the case of any Subsidiary Obligor
party hereto on the Effective Date, provided below its signature hereto (if any)
or (y) in the case of any Subsidiary Obligor that becomes party hereto after
the Effective Date, set forth in the Designation Letter to which it is a party
(if any);


 


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(iii)  if to the Administrative Agent, to
JPMorgan Chase Bank, N.A., 1111 Fannin, 10th Floor, Houston, Texas
77002-8069, Attention of Loan and Agency Services Group (Telephone No. (713) 750-2199; Telecopy No. (713)
427-6889) and, if such notice or other communication relates to
borrowings of, or payments or prepayments of, or the duration of Interest
Periods for, Loans denominated in a Foreign Currency, also to J.P. Morgan Europe Limited, 125 London Wall, EC2Y
5AJ, Attention of Belinda Lucas (Telecopy No. 00-44-207-777-7360;
Telephone No. 00-44-207-777-0976), in each case with a copy to JPMorgan
Chase Bank, N.A., 270 Park Avenue, New York, New York 10017,
Attention of Stephanie Parker (Telecopy No. (212) 270-6637; Telephone
No. (212) 270-0529);


 


(iv)  if to an Issuing Lender, to it at its
address (or telecopy number) set forth in its Administrative Questionnaire;


 


(v)  if to the
Swingline Lender, to JPMorgan Chase Bank, N.A., 1111 Fannin Street, 10th
Floor, Houston, Texas 77002-8069, Attention of Loan and Agency Services (Telephone
No. (713) 750-2199; Telecopy No. (713) 427-6889), with a copy to
JPMorgan Chase Bank, 270 Park Avenue, New York 10017, Attention of Stephanie
Parker  (Telephone No. (212) 270-6637; Telecopy No. (212) 270-0529); and


 


(vi)  if to a 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 to any Lender pursuant to Article II unless otherwise agreed by
the Administrative Agent and such Lender. 
The Administrative Agent or the Company (on behalf of itself and all
other Obligors) 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.  Without limiting the foregoing, the
Administrative Agent agrees that, unless it shall otherwise advise the Company,
notices to be delivered by any Borrower or any Account Party to the
Administrative Agent  pursuant to Article II
(including any such notices permitted to be given by telephone or telecopy) may
be delivered by e-mail transmissions to the Administrative Agent at such e-mail
address (or addresses) as the Administrative Agent shall from time to time
notify the Company.


 


(c) 
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto (or, in
the case of any such change by a Lender, by notice to the Company and the
Administrative Agent).  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 Deemed Waivers; Remedies Cumulative. 
No failure or delay by the Administrative Agent, any Issuing Lender or
any Lender in exercising any right or power


 


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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, the Issuing Lenders 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 any Obligor 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 or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or any Issuing Lender may have had notice or knowledge of
such Default at the time.


 


(b) 
Amendments.  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 Company (on
behalf of itself and all other Obligors) and the Required Lenders or by the
Company (on behalf of itself and all other Obligors) and the Administrative
Agent with the written consent of the Required Lenders; provided that no
such agreement shall


 


(i)  increase the Commitment (or either
Sub-Commitment) of any Lender without the written consent of such Lender,


 


(ii)  reduce the principal amount of any Loan or
LC Disbursement 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 LC Disbursement, 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 2.19(d) without
the consent of each Lender affected thereby,


 


(v)  change the obligations of the Company pursuant
to Article IX; or


 


(vi)  change any of the provisions of this Section or
the percentage in the definition of the term “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;


 


and provided  further
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent, any Issuing Lender or the Swingline Lender hereunder
without the prior written consent of the Administrative Agent, such Issuing
Lender or the Swingline Lender, as the case may be.


 


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SECTION 10.03.  Expenses; Indemnity; Damage Waiver.


 


(a) 
Costs and Expenses.  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 facilities provided for herein, the preparation
and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses
incurred by the Administrative Agent, any Issuing Lender or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Issuing Lender or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including in
connection with any workout, restructuring or negotiations in respect thereof.


 


(b) 
Indemnification by Company.  The Company
shall indemnify the Administrative Agent, each Issuing Lender 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 reasonable 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 or any other transactions contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by any Issuing Lender to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii) any
actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Company or any of its Subsidiaries, or 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
willful misconduct of such Indemnitee.


 


(c) 
Reimbursement by Lenders.  To the
extent that the Company fails to pay any amount required to be paid by it to
the Administrative Agent, any Issuing Lender or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally
agrees to pay to the Administrative Agent, such Issuing Lender or the Swingline
Lender, as the case may be, such Lender’s Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was


 


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incurred by or asserted against the Administrative Agent, such Issuing
Lender or the Swingline Lender in its capacity as such.


 


(d) 
Waiver of Consequential Damages, Etc. 
To the extent permitted by applicable law, the Obligors shall not
assert, and hereby waive, 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, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.


 


(e) 
Payments.  All amounts due under
this Section shall be payable promptly after written demand therefor.


 


SECTION 10.04.  Successors and Assigns.


 


(a) 
Assignments Generally.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of any Issuing Lender that issues any Letter of Credit),
except that (i) no Obligor may assign or otherwise transfer any of its respective
rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by any Obligor without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section.  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of any Issuing Lender that issues any Letter of
Credit), 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, the Issuing Lenders, the Swingline Lender
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


 


(b) 
Assignments by Lenders.  (i) 
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees 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) of:


 


(A)  the Company, provided that no consent
of the Company shall be required (i) for an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund or (ii) if an Event of Default
has occurred and is continuing, for an assignment to any other Person;


 


(B)  the Administrative Agent;


 


(C)  each Issuing Lender; and


 


(D) 
the Swingline Lender.


 


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


 


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(A)  except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender’s Commitment or Loans of any Class, the amount
of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless each of the Company and the Administrative Agent
otherwise consent; provided that no such consent of the Company shall be
required if an Event of Default has occurred and is continuing;


 


(B)  each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement, 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; and


 


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


 


(iii) 
Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) and
(v) 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 2.17, 2.18, 2.19 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 each Borrower,
each Account Party, each Issuing Lender and each Lender, shall maintain at one
of its offices in New York City a copy of each Assignment and Assumption
delivered to it and a register for the recordation of (w) the names and
addresses of the Lenders, (x) the designation of any Lender as an Issuing
Lender, (y) the Commitment of, and outstanding principal amount of each Loan
made by, each Lender and (z) the outstanding amount of each Letter of Credit
issued by, and of each unreimbursed LC Disbursement made by, each Issuing
Lender (together with a notation of each Lender’s participation therein
pursuant to Section 2.06(e)), in all cases pursuant to the terms hereof
from time to time (the “Register”). 
The entries in the Register shall be conclusive, and the Obligors, the
Administrative Agent, the Issuing Lender and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as an
Issuing Lender or a Lender, as the case may be, hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the


 


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Obligors, any Issuing Lender and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.


 


(v) 
Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of
this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register.  No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.


 


(c) 
Participations.  (i)  Any
Lender may, without the consent of any Obligor, the Administrative Agent, any
Issuing Lender or any other Lender, sell participations to one or more banks or
other entities (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement and the other Loan Documents
(including all or a portion of its Commitment and the Loans owing to it); provided
that (A) such Lender’s obligations under this Agreement and the other Loan
Documents shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Obligors, the Administrative Agent, the Issuing Lenders and
the other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement
and the other Loan Documents.  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 the other Loan Documents and to approve any amendment,
modification or waiver of any provision of this Agreement or any other Loan
Document; 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, the Borrowers and the Account
Parties agree that each Participant shall be entitled to the benefits and
subject to the limitations of Sections 2.16, 2.17 and 2.18 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 of which the Company has been given prior written notice also shall
be entitled to the benefits of Section 10.08 as though it were a Lender, provided
that such Participant agrees to be subject to Section 2.19(d) as
though it were a Lender.


 


(ii) 
A Participant shall not be entitled to receive any greater payment under Section 2.16,
2.17 or 2.18 than the relevant 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 shall not be
entitled to the benefits of Section 2.18 unless the Company is notified in
writing of the participation sold to such Participant and such Participant
agrees in writing, for the benefit of each Borrower and each Account Party, to
comply with all obligations under or relating to Section 2.18 and Section 2.20,
in all cases as though it were a Lender.


 


(d) 
Certain Pledges.  Any Lender may
at any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such


 


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- 92 -


 


Lender, including any such pledge or assignment 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 assignee for such Lender as a party hereto.


 


(e) 
No Assignments to the Company or Affiliates.  Anything in this Section to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan
or LC Exposure held by it hereunder to the Company or any of its
Affiliates or Subsidiaries without the prior consent of each Lender.


 


SECTION 10.05.  Survival.  All covenants, agreements, representations
and warranties made by the Obligors herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement
(including the Designation Letters) shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery
of this Agreement and the making of any Loans and issuance of any Letters of
Credit, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent, any Issuing Lender 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 or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated.  The provisions of Sections 2.16, 2.17, 2.18,
10.03, 10.11 and 10.13 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 Letters of Credit and 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 between and among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof.  Except as
provided in Section 4.01, this Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. 
Delivery of an executed counterpart of a signature page to 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.


 


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- 93 -


 


SECTION 10.08.  Right of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Lender to or for the
credit or the account of any Obligor against any of and all the obligations of such
Obligor 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; Judicial
Proceedings; Etc.


 


(a) 
Governing Law.  This Agreement
shall be construed in accordance with and governed by the law of the State of
New York.


 


(b) 
Submission to Jurisdiction.  Each
of the Obligors 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, any Issuing
Lender or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement against any Obligor or its properties in the courts
of any jurisdiction.


 


(c) 
Waiver of Venue.  Each of the
Obligors 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)           Appointment of Agent for Service
of Process.  Each Subsidiary Obligor irrevocably
designates and appoints CT Corporation System, at its office in New York City,
New York, U.S.A., as its authorized agent, to accept and acknowledge on its
behalf, service of any and all process which may be served in any suit, action
or proceeding of the nature referred to in Section 10.09(b) in any
federal or New York State court sitting in New York City.  Each Subsidiary Obligor represents and
warrants that such agent has agreed in writing to accept such appointment and
that a true copy of such designation and acceptance has been delivered to the
Administrative Agent.  Said designation
and appointment shall be irrevocable by each such Subsidiary Obligor until all Loans,
all reimbursement obligations, interest thereon and all other


 


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- 94 -


 


amounts payable by such Subsidiary Obligor hereunder and under the
other Loan Documents shall have been paid in full in accordance with the
provisions hereof and thereof and such Subsidiary Obligor shall have been
terminated as an Account Party and/or a Borrower (as applicable) hereunder
pursuant to Section 2.21.  If such
agent shall cease so to act, each such Obligor covenants and agrees to
designate irrevocably and appoint without delay another such agent satisfactory
to the Administrative Agent and to deliver promptly to the Administrative Agent
evidence in writing of such other agent’s acceptance of such appointment.


 


(e) 
Service of Process.  Each party to
this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 10.01.  
Each Subsidiary Obligor hereby consents to process being served in any
suit, action or proceeding of the nature referred to in Section 10.09(b) in
any federal or New York State court sitting in New York City by service of
process upon its agent appointed as provided in Section 10.09(d); provided
that, to the extent lawful and possible, notice of said service upon such agent
shall be mailed by registered or certified air mail, postage prepaid, return
receipt requested, to the Company and (if applicable to) such Subsidiary Obligor
at its address set forth in the Designation Letter to which it is a party or to
any other address of which such Subsidiary Obligor shall have given written
notice to the Administrative Agent (with a copy thereof to the Company).  Each Subsidiary Obligor irrevocably waives,
to the fullest extent permitted by law, all claim of error by reason of any
such service in such manner and agrees that such service shall be deemed in
every respect effective service of process upon such Subsidiary Obligor in any
such suit, action or proceeding and shall, to the fullest extent permitted by
law, be taken and held to be valid and personal service upon and personal
delivery to such Subsidiary Obligor. 
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.  Judgment Currency.  This is an international loan transaction in
which the specification of Dollars or any Foreign Currency, as the case may be
(the “Specified Currency”), and payment in New York City or the country
of the Specified Currency, as the case may be (the “Specified Place”),
is of the essence, and the Specified Currency shall be the currency of account
in all events relating to Loans denominated in the Specified Currency.  The payment obligations of the Obligors under
this Agreement shall not be discharged or satisfied by an amount paid in
another currency or in another place, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid on conversion to the Specified
Currency and


 


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- 95 -


 


transfer to the Specified Place under normal
banking procedures does not yield the amount of the Specified Currency at the
Specified Place due hereunder.  If for
the purpose of obtaining judgment in any court it is necessary to convert a sum
due hereunder in the Specified Currency into another currency (the “Second
Currency”), the rate of exchange that shall be applied shall be the rate at
which in accordance with normal banking procedures the Administrative Agent
could purchase the Specified Currency with the Second Currency on the Business
Day next preceding the day on which such judgment is rendered.  The obligations of each of the Obligors in
respect of any such sum due from it to the Administrative Agent, any Issuing
Lender or any Lender hereunder or under any other Loan Document (in this Section called
an “Entitled Person”) shall, notwithstanding the rate of exchange
actually applied in rendering such judgment, be discharged only to the extent
that on the Business Day following receipt by such Entitled Person of any sum
adjudged to be due hereunder in the Second Currency such Entitled Person may in
accordance with normal banking procedures purchase and transfer to the
Specified Place the Specified Currency with the amount of the Second Currency
so adjudged to be due; and each of the Obligors hereby, as a separate
obligation and notwithstanding any such judgment, agrees to indemnify such
Entitled Person against, and to pay such Entitled Person on demand, in the
Specified Currency, the amount (if any) by which the sum originally due to such
Entitled Person in the Specified Currency hereunder exceeds the amount of the
Specified Currency so purchased and transferred.


 


SECTION 10.12.  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 10.13.  Confidentiality.  Each of the Administrative Agent, the Issuing
Lenders and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (i) to
its and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (ii) to the extent requested by any regulatory or
self-regulatory authority, (iii) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (iv) to any
other party to this Agreement, (v) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (vi) subject to an
agreement containing provisions substantially the same as those of this
paragraph, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to the Obligors and their respective
obligations, (vii) with the consent of the Company or (viii) to the
extent such Information (A) becomes publicly available other than as a
result of a breach of this paragraph or (B) becomes available to the
Administrative Agent, any Issuing Lender or any Lender on a nonconfidential
basis from a source other than the Borrower. 
For the purposes of this paragraph, “Information” means all
information received from the Company or any of its Subsidiaries relating to
the Company, its Subsidiaries or their respective business, other than any such
information that is available to the Administrative Agent, any Issuing Lender
or any Lender on a nonconfidential basis prior to disclosure by the Company; provided
that, in the case of information received from the Company


 


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- 96 -


 


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 10.14.  Termination of Commitments under Existing
Credit Agreement.  Each of the
signatories hereto that is also a party to the Existing Credit Agreement hereby
agrees that, as of the Effective Date, all of the commitments to extend credit
under the Existing Credit Agreement will be terminated automatically.  This Agreement constitutes notice thereof and
pursuant hereto the requirement contained in Section 2.08(c) of the
Existing Credit Agreement that three Business Days’ (as defined therein) notice
of the termination of such commitments be given to the administrative agent
thereunder is waived.


 


SECTION 10.15.  USA PATRIOT Act.  Each Lender hereby notifies the Obligors that
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), such Lender may be required
to obtain, verify and record information that identifies the Obligors, which
information includes the name and address of the Obligors and other information
that will allow such Lender to identify the Obligors in accordance with said
Act.


 


SECTION 10.16.  Waiver of Immunity.  To the extent that any Subsidiary Obligor
that is a Foreign Subsidiary may be or become entitled to claim for itself or
its property any immunity on the ground of sovereignty or the like from suit,
court jurisdiction, attachment prior to judgment, attachment in aid of
execution of a judgment or execution of a judgment, and to the extent that in
any such jurisdiction there may be attributed such an immunity (whether or not
claimed), such Subsidiary Obligor hereby irrevocably agrees not to claim and
hereby irrevocably waives such immunity with respect to its obligations under
this Agreement.


 


SECTION 10.17.  Appointment of Company as Agent.  Each Subsidiary Obligor party hereto as of
the Effective Date, by its signature below, and each Subsidiary Obligor
designated after the Effective Date as a “Subsidiary Borrower” or “Subsidiary
Account Party” pursuant to Section 2.21, by its acknowledgment to the
Designation Letter relating to such Subsidiary Obligor, as applicable:


 


(a)           appoints and authorizes the Company
for the purposes of (i) signing documents deliverable by or on behalf of
such Subsidiary Obligor hereunder or under any other Loan Document, (ii) providing
notices to or making requests of the Administrative Agent, any Issuing Lender or
any Lender on behalf of such Subsidiary Obligor, (iii) receiving notices
and documents from the Administrative Agent, any Issuing Lender or any Lender
on behalf of such Subsidiary Obligor, and (iv) taking any other action on
behalf such Subsidiary Obligor hereunder or under any other Loan Document, in
each case to the extent specifically provided for hereunder or thereunder, and
such Subsidiary Obligor agrees to be irrevocably bound by all such actions
being taken on behalf of such Subsidiary Obligor by the Company and all such
notices received by the Company on behalf of such Subsidiary Obligor; provided
that another Person may be appointed to act in substitution for the Company
with the power and authority granted thereto by such


 


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- 97 -


 


Subsidiary Obligor under
this clause (a) so long as such Person shall have been certified as such
in a single writing executed by such Subsidiary Obligor and delivered to the
Administrative Agent;


 


(b)           authorizes the Administrative Agent, each
Issuing Lender and each Lender to treat (i) each document signed by, each
notice given or received by, each document delivered or received by and each
request made by the Company on its behalf and (ii) each other action which
specifically provides herein or therein that the Company acts on behalf, or at
the direction, of such Subsidiary Obligor as if such Subsidiary Obligor (and
not the Company) had in fact signed such document, given or received such
notice, delivered or received such document, made such request or taken such
action; and


 


(c)           acknowledges that the Administrative
Agent, each Issuing Lender and each Lender are relying upon the appointments
and authorizations set forth in this Section in connection with the making
of their Commitments and credit extensions hereunder.


 


In the event the
Administrative Agent, any Issuing Lender or any Lender reasonably believes that
it has received a conflicting notice or instruction from the Company and/or his
or her designees, the Administrative Agent, such Issuing Lender or such Lender
may refrain from action upon such notice or instruction and shall promptly
request the Company for clarification regarding such notice or instruction.


 


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- 98 -


 


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


 


	
   

  	
  COMPANY

  
	
   

  	
   

  
	
   

  	
  BRUNSWICK CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  U.S. Federal Tax Identification No.:
  36-0848180

  



 


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- 99 -


 


SUBSIDIARY BORROWERS


 


	
   

  	
  DOMESTIC SUBSIDIARY BORROWERS

  
	
   

  	
   

  
	
   

  	
  MARINE POWER EUROPE, INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BRUNSWICK INTERNATIONAL LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


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- 100 -


 


	
   

  	
  FOREIGN SUBSIDIARY BORROWERS

  
	
   

  	
   

  
	
   

  	
  BRUNSWICK EUROPE HOLDINGS LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BRUNSWICK HUNGARY KFT

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


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- 101 -


 


SUBSIDIARY
ACCOUNT PARTIES


 


	
   

  	
  DOMESTIC SUBSIDIARY ACCOUNT PARTIES

  
	
   

  	
   

  
	
   

  	
  BRUNSWICK
  BOWLING & BILLIARDS

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BRUNSWICK
  COMMERCIAL &

  GOVERNMENTAL PRODUCTS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


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- 102 -


 


	
   

  	
  FOREIGN SUBSIDIARY ACCOUNT PARTIES

  
	
   

  	
   

  
	
   

  	
  CENTENNIAL
  ASSURANCE COMPANY, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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- 103 -


 


	
   

  	
  LENDERS

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A.

  individually and as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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- 104 -


 


	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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- 105 -


 


	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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- 106 -


 


	
   

  	
  SUNTRUST BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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- 107 -


 


	
   

  	
  WELLS FARGO BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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- 108 -


 


	
   

  	
  CITIBANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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- 109 -


 


	
   

  	
  HARRIS TRUST AND SAVINGS BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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- 110 -


 


	
   

  	
  LLOYDS TSB BANK PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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- 111 -


 


	
   

  	
  NATIONAL AUSTRALIA BANK LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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- 112 -


 


	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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- 113 -


 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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  DEUTSCHE BANK AG NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Credit Agreement


 





















 


- 115 -


 


	
   

  	
  FIFTH THIRD BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Credit Agreement


 





















 


- 116 -


 


	
   

  	
  KBC BANK, NV

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Credit Agreement


 





















 


- 117 -


 


	
   

  	
  KEYBANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Credit Agreement


 





















 


- 118 -


 


	
   

  	
  LASALLE BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Credit Agreement


 





















 


- 119 -


 


	
   

  	
  MERRILL LYNCH BANK USA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Credit Agreement


 





















 


- 120 -


 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Credit Agreement


 





















 


- 121 -


 


	
   

  	
  SUMITOMO
  MITSUI BANKING

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Credit Agreement


 





















 


SCHEDULE 1.01A


 


Commitments


 


	
  Name of Lender

  	
  Dollar Sub-

  Commitment

  	
  Multicurrency Sub-

  Commitment

  	
  Total Commitment

  
	
  (a)

  	
  JPMorgan Chase Bank,

  N.A.

  	
  $43,750,000

  	
  $18,750,000

  	
  $62,500,000

  
	
  (b)

  	
  The Royal Bank of

  Scotland plc

  	
  $43,750,000

  	
  $18,750,000

  	
  $62,500,000

  
	
  (c)

  	
  Bank of America, N.A.

  	
  $37,500,000

  	
  $12,500,000

  	
  $50,000,000

  
	
  (d)

  	
  SunTrust Bank

  	
  $37,500,000

  	
  $12,500,000

  	
  $50,000,000

  
	
  (e)

  	
  Wells Fargo Bank, N.A.

  	
  $37,500,000

  	
  $12,500,000

  	
  $50,000,000

  
	
   

  	
  Citibank, N.A.

  	
  $25,000,000

  	
  $7,500,000

  	
  $32,500,000

  
	
  (f)

  	
  Harris Trust and Savings

  Bank

  	
  $25,000,000

  	
  $7,500,000

  	
  $32,500,000

  
	
  (g)

  	
  Lloyds TSB Bank plc

  	
  $25,000,000

  	
  $7,500,000

  	
  $32,500,000

  
	
  (h)

  	
  National Australia Bank

  Limited

  	
  $25,000,000

  	
  $7,500,000

  	
  $32,500,000

  
	
  (i)

  	
  The Bank of New York

  	
  $32,500,000

  	
  $0

  	
  $32,500,000

  
	
  (j)

  	
  U.S. Bank National

  Association

  	
  $25,000,000

  	
  $7,500,000

  	
  $32,500,000

  
	
  (k)

  	
  Deutsche Bank AG New

  York Branch

  	
  $15,000,000

  	
  $7,500,000

  	
  $22,500,000

  
	
  (l)

  	
  Fifth Third Bank

  	
  $15,000,000

  	
  $7,500,000

  	
  $22,500,000

  
	
  (m)

  	
  KBC Bank, NV

  	
  $22,500,000

  	
  $0

  	
  $22,500,000

  
	
  (n)

  	
  KeyBank National

  Association

  	
  $22,500,000

  	
  $0

  	
  $22,500,000

  
	
  (o)

  	
  LaSalle Bank National

  Association

  	
  $15,000,000

  	
  $7,500,000

  	
  $22,500,000

  
	
  (p)

  	
  Merrill Lynch Bank USA

  	
  $15,000,000

  	
  $7,500,000

  	
  $22,500,000

  
	
  (q)

  	
  PNC Bank, N.A.

  	
  $15,000,000

  	
  $7,500,000

  	
  $22,500,000

  
	
  (r)

  	
  Sumitomo Mitsui Banking

  Corporation

  	
  $22,500,000

  	
  $0

  	
  $22,500,000

  



 


Schedule 1.01A to Credit Agreement


 





















 


SCHEDULE 1.01B


 


Approving Issuing Lenders


 


	
  Name of
  Foreign Subsidiary Account

  	
   

  	
  Issuing
  Lender

  
	
   

  	
   

  	
   

  
	
  Centennial Assurance Company, Ltd.

  	
   

  	
  JPMorgan Chase Bank, N.A.

  
	
   

  	
   

  	
  The Bank of New York

  



 


 


Schedule 1.01B
to Credit Agreement


 





















 


SCHEDULE 1.01C


 


Mandatory Costs


 


Calculation of Mandatory Cost Rate


 


1.                                       The Mandatory
Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the
Financial Services Authority (or, in either case, any other authority which
replaces all or any of its functions) or (b) the requirements of the European
Central Bank.


 


2.                                       On the first day
of each Interest Period for any Loan denominated in Pounds Sterling  or another Agreed Foreign Currency (or as
soon as possible thereafter) the Administrative Agent shall calculate, as a
percentage rate, a rate (the “Additional Cost Rate”) for each Lender
participating in such Loan, in accordance with the paragraphs set out
below.  The Mandatory Cost will be
calculated by the Administrative Agent as a weighted average of such Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation
of each such Lender in the relevant Loan) and will be expressed as a percentage
rate per annum.


 


3.                                       The Additional
Cost Rate for any Lender lending from a specific lending office in a
Participating Member State will be the percentage notified by that Lender to
the Administrative Agent.  This
percentage will be certified by that Lender in its notice to the Administrative
Agent to be its reasonable determination of the cost (expressed as a percentage
of that Lender’s participation in all Loans made from that lending office) of
complying with the minimum reserve requirements of the European Central Bank in
respect of loans made from that lending office.


 


4.                                       The Additional
Cost Rate for any Lender lending from a lending office in the United Kingdom
will be calculated by the Administrative Agent as follows:


 


(a)                                  in relation to a Loan
made in Pounds Sterling:


 


	
  

  	
  percent per annum

  



 


(b)                                 in relation to a Loan
made in any Agreed Foreign Currency other than Pounds Sterling:


 


	
  

  	
  percent per annum.

  



 


Where:


 


A                                      is the percentage
of Eligible Liabilities (assuming these to be in excess of any stated minimum)
which such Lender is from time to time required to maintain as 


 


Schedule 1.01C
to Credit Agreement





















 


- 2 -


 


an interest free cash ratio deposit with the Bank of England to comply
with cash ratio requirements.


 


B                                        is the
percentage rate of interest (excluding the Applicable Margin and the Mandatory
Cost and, if applicable, any additional amount of interest specified in
Section 2.14(f)) payable for the relevant Interest Period on the Loan.


 


C                                        is the
percentage (if any) of Eligible Liabilities which such Lender is required from
time to time to maintain as interest bearing Special Deposits with the Bank of
England.


 


D                                       is the
percentage rate per annum payable by the Bank of England to the Administrative
Agent on interest bearing Special Deposits.


 


E                                         is designed to
compensate Lenders for amounts payable under the Fees Rules and is calculated
by the Administrative Agent as being the average of the most recent rates of
charge supplied by the Reference Banks to the Administrative Agent pursuant to
paragraph 7 below and expressed in pounds per £1,000,000;


 


5.             For the purposes of
this Schedule 1.01C:


 


(a)                                        “Eligible
Liabilities” has the meaning given to it from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank
of England.


 


(b)                                       “Fees Rules”
means the rules on periodic fees contained in the FSA Supervision Manual or
such other law or regulation as may be in force from time to time in respect of
the payment of fees for the acceptance of deposits.


 


(c)                                        “Fee Tariffs”
means the fee tariffs specified in the Fees Rules under the activity group A.1
Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant
to the Fees Rules but taking into account any applicable discount rate).


 


(d)                                       “Reference
Bank” means the principal London offices of JPMorgan Chase Bank, N.A. or
such other banks as may be appointed by the Administrative Agent in
consultation with the Company.


 


(e)                                        “Special
Deposits” has the meaning given to it from time to time under or pursuant
to the Bank of England Act 1998 or (as may be appropriate) by the Bank of
England.


 


Schedule 1.01C
to Credit Agreement





















 


- 3 -


 


(f)                                          “Tariff
Base” has the meaning given to it in, and will be calculated in accordance
with, the Fees Rules.


 


6.                                       In application
of the above formula, A, B, C and D will be included in the formula as
percentages (i.e. 5 percent will be included in the formula as 5 and not as
0.05).  A negative result obtained by
subtracting D from B shall be taken as zero. 
The resulting figures shall be rounded to four decimal places.


 


7.                                 If requested by the
Administrative Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Administrative
Agent, the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Rules in respect of the relevant
financial year of the Financial Services Authority (calculated for this purpose
by that Reference Bank as being the average of the Fee Tariffs applicable to
that Reference Bank for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of that Reference Bank.


 


8.                                Each Lender shall
supply any information required by the Administrative Agent for the purpose of
calculating its Additional Cost Rate.  In
particular, but without limitation, each Lender shall supply the following
information on or prior to the date on which it becomes a Lender:


 


(a)             the
jurisdiction of its applicable lending office; and


 


(b)             any
other information that the Agent may reasonably require for such purpose.


 


Each Lender shall promptly notify the Administrative Agent of any
change to the information provided by it pursuant to this paragraph.


 


9.                                The percentages of
each Lender for the purpose of A and C above and the rates of charge of each
Reference Bank for the purpose of E above shall be determined by the
Administrative Agent based upon the information supplied to it pursuant to
paragraphs 7 and 8 above and on the assumption that, unless a Lender notifies
the Administrative Agent to the contrary, each Lender’s obligations in relation
to cash ratio deposits and Special Deposits are the same as those of a typical
bank from its jurisdiction of incorporation with an lending office in the same
jurisdiction as its lending office.


 


10.                          The Administrative
Agent shall have no liability to any person if such determination results in an
Additional Cost Rate which over or under compensates any Lender and shall be
entitled to assume that the information provided by any Lender or Reference
Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all
respects.


 


11.                          The  Administrative Agent shall distribute the
additional amounts received as a result of the Mandatory Cost to the Lenders on
the basis of the Additional Cost Rate for each 


 


Schedule 1.01C to Credit Agreement





















 


- 4 -


 


Lender based on the information provided
by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.


 


12.                          Any determination by
the Administrative Agent pursuant to this Schedule 1.01C in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a
Lender shall, in the absence of manifest error, be conclusive and binding on
all parties to the Credit Agreement.


 


13.                          The Administrative
Agent may from time to time, after consultation with the Company and the
Lenders, determine and provide notice to the Company and the Lenders of any
amendments which are required to be made to this Schedule 1.01C in order to
comply with any change in law, regulation or any requirements from time to time
imposed by the Bank of England, the Financial Services Authority or the
European Central Bank (or, in any case, any other authority which replaces all
or any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all parties to the Credit
Agreement.


 


Schedule 1.01C to Credit Agreement


 





















 


SCHEDULE 2.06(l)


 


Existing
Letters of Credit


 


	
  Number

  	
   

  	
  Issuing Bank

  	
   

  	
  Amount

  	
   

  	
  Beneficiary Information

  	
   

  	
  Maturity

  Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  S00043617

  	
   

  	
  The Bank of New York

  	
   

  	
  $2,873,000.00

  	
   

  	
  American Bankers Life Assurance Co of America

  	
   

  	
  1-Nov-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  S00043942

  	
   

  	
  The Bank of New York

  	
   

  	
  $17,000.00

  	
   

  	
  North American Specialty Ins Co

  	
   

  	
  4-Nov-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STL410378

  	
   

  	
  JPMorgan Chase Bank, N.A.(Bank One)

  	
   

  	
  $767,953.50

  	
   

  	
  Ministerio De La Defensa
  Comandancia General De La Armada

  	
   

  	
  30-Apr-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  326322

  	
   

  	
  JPMorgan Chase Bank, N.A (Bank One)

  	
   

  	
  $5,500,000.00

  	
   

  	
  National Union Fire Insurance Company of Pittsburgh, PA

  	
   

  	
  4-Nov-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STL326601

  	
   

  	
  JPMorgan Chase Bank, N.A.(Bank One)

  	
   

  	
  $1,663,747.40

  	
   

  	
  Ministerio De La Defensa
  Comandancia General De La Armada

  	
   

  	
  4-Nov-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STL326602

  	
   

  	
  JPMorgan Chase Bank, N.A.(Bank One)

  	
   

  	
  $690,155.00

  	
   

  	
  Ministerio De La Defensa
  Comandancia General De La Armada

  	
   

  	
  5-Nov-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STL330171

  	
   

  	
  JPMorgan Chase Bank, N.A.(Bank One)

  	
   

  	
  $21,150,000.00

  	
   

  	
  Zurich American Insurance Company

  	
   

  	
  4-Nov-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NWS449258

  	
   

  	
  Wells Fargo Bank, N.A.

  	
   

  	
  $7,992,000.00

  	
   

  	
  National Union Fire Insurance Company of Pittsburgh, PA

  	
   

  	
  17-Jul-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  P-258302

  	
   

  	
  JPMorgan Chase Bank, N.A.

  	
   

  	
  $290,878.00

  	
   

  	
  Northwestern National Insurance Company

  	
   

  	
  4-Nov-05

  



 


Schedule 2.06(l) to Credit Agreement


 





















 


- 2 -


 


	
  S00042637

  	
   

  	
  The Bank of New York

  	
   

  	
  $8,975,000.00

  	
   

  	
  National Union Fire Insurance Company of Pittsburgh, PA

  	
   

  	
  4-Nov-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  S00043618

  	
   

  	
  The Bank of New York

  	
   

  	
  $2,370,000.00

  	
   

  	
  National Union Fire Insurance Company of Pittsburgh, PA

  	
   

  	
  1-Nov-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STL410266

  	
   

  	
  JPMorgan Chase Bank, N.A.(Bank One)

  	
   

  	
  £4,000,0001

  	
   

  	
  Bank One, N.A., London)

  	
   

  	
  4-Nov-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STL410746

  	
   

  	
  JPMorgan Chase Bank, N.A.(Bank One)

  	
   

  	
  $4,090,324.00

  	
   

  	
  Wachovia Bank, N.A.

  	
   

  	
  5-Nov-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STL751664

  	
   

  	
  JPMorgan Chase Bank, N.A.(Bank One)

  	
   

  	
  $5,700.00

  	
   

  	
  Southgate Water District

  	
   

  	
  31-Jul-05

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $64,011,971.27

  	
   

  	
   

  	
   

  	
   

  



 


 










1 Based on the conversion rate as of 3/31/05 the
outstanding amount was $7,626,213.37.


 


Schedule 2.06(l) to Credit Agreement


 





















 


SCHEDULE 3.06(a)


 


Litigation


 


On April 18, 2002, the Company, in cooperation with the United States
Consumer Products Safety Commission, announced a recall of approximately
103,000 bicycles that were sold by the Company’s former bicycle division.  The bicycles had been equipped with suspension
forks that were purchased from a Taiwanese company.  Some of the forks were found to have been
defectively manufactured and were involved in approximately 55 reported
incidents.  The recall is an expansion of
a prior recall involving the suspension forks and allows consumers who
purchased bicycles with an affected fork to return the fork in exchange for $65
or a replacement bicycle.  The Company
does not believe that the resolution of this matter will have a material
adverse effect on the Company’s consolidated financial position or results of
operations.


 


In December of 2002, the United States Supreme Court decided against
Brunswick (Mercury Marine) in the case of Sprietsma
vs. Mercury Marine. Lower courts, including the Illinois Supreme
Court had ruled in favor of Brunswick. 
At issue in Sprietsma was
whether federal law preempted state tort claims alleging that marine engines
should be equipped with devices designed to protect against propeller
injuries.  The Court found that such
claims should not be preempted.  As a
result of this decision, Mercury Marine will have to defend propeller guard
cases on the merits, rather than moving for dismissal early in the proceedings.  In the years since the Sprietsma
reversal several propeller guard cases filed against the company have been
voluntarily dismissed by the plaintiffs (without payment from Brunswick);
others have been resolved by nominal settlements; there have been no
substantial settlements and no jury verdicts against the Company.  The Company believes that having to defend
propeller guard cases on the merits will not have a material adverse effect on
the Company’s consolidated financial position or results of operations.


 


On September 6, 2001, the Federal Trade Commission (FTC) informed the
Company that it had closed an investigation concerning the Company’s bidding
for certain assets of Outboard Marine Corporation (OMC) as a part of OMC’s
bankruptcy.  On October 5, 2001, the FTC
also informed the Company that it had closed a separate investigation commenced
in 1997 concerning certain of the Company’s marketing practices related to the
sale of sterndrive marine engines to boatbuilders and dealers.


 


On October 26, 2000, the Company became one of 109 defendants in a suit
filed in federal court in Arizona by the Lemelson Foundation for allegedly
violating several of the Foundation’s patents. 
The patents at issue involve machine-vision and bar-coding technology,
and the Foundation’s has asserted a number of similar actions against other
companies alleged to have used these technologies in their distribution or
manufacturing activities.  This lawsuit
has been stayed by the Arizona court pending the outcome of a lawsuit filed against
the Foundation in Nevada.  The Company
does not believe that the resolution of this matter will have a material
adverse effect on the Company’s consolidated financial position or results of
operations.


 


The Company has been named in a number of asbestos-related lawsuits,
the majority of which involve Vapor Corporation, a former subsidiary that the
Company divested in 1990.  Virtually all 


 


Schedule 3.06(a) to Credit Agreement


 





















 


- 2 -


 


of the asbestos suits against the Company involve numerous other
defendants.  The claims generally allege
that the Company sold products that contained components, such as gaskets, that
included asbestos, and seek monetary damages from the Company.  Neither the Company nor Vapor is alleged to
have manufactured asbestos.  The Company’s
insurers have settled a number of asbestos claims for nominal amounts, while a
number of other claims have been dismissed. 
No suit has yet gone to trial. 
The Company does not believe that the resolution of these lawsuits will
have a material adverse effect on the Company’s consolidated financial position
or results in operations.


 


The Company accrues for litigation exposure based upon its assessment,
made in consultation with counsel, of the likely range of exposure stemming
from the claim.  In light of existing
reserves, the Company’s litigation claims, when finally resolved, will not, in
the opinion of management, have a material adverse effect on the Company’s
consolidated financial position.  If
current estimates for the cost of resolving any claims are later determined to
be inadequate, results of operations could be adversely affected in the period
in which additional provisions are required. 



 


Refer to Note 9, Commitments and Contingencies, in the Notes to
Consolidated Financial Statements in the 2004 Form 10-K for a discussion of
other litigation-related matters as of December 31, 2004.


 


Schedule 3.06(a) to Credit Agreement


 





















 


SCHEDULE 3.06(b)


 


Environmental Matters


 


The Company is involved in certain legal and administrative proceedings
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 and other federal and state legislation governing the generation and
disposition of certain hazardous wastes. 
These proceedings, which involve both on- and off-site waste disposal or
other contamination, in many instances seek compensation or remedial action
from the Company as a waste generator under Superfund legislation, which
authorizes action regardless of fault, legality of original disposition or ownership
of a disposal site.  The Company is also
involved in a number of environmental remediation actions addressing
contamination resulting from historic activities on its present and former
plant properties.


 


The Company accrues for environmental remediation-related activities
for which commitments or clean-up plans have been developed and for which costs
can be reasonably estimated.  All accrued
amounts are generally determined in coordination with third-party experts on an
undiscounted basis and do not consider recoveries from third parties until such
recoveries are realized.  The ultimate
exposure for these claims is consistent with the prior year.  In light of existing reserves, the Company’s
environmental claims, when finally resolved, will not, in the opinion of
management, have a material adverse effect on the Company’s consolidated
financial position.  If current estimates
for the cost of resolving these claims are later determined to be inadequate,
results of operations could be adversely affected in the period in which
additional provisions are required. 
Refer to Note 9, Commitments and Contingencies, in the Notes to
Consolidated Financial Statements in the 2004 Form 10-K, for disclosure of the
potential cash requirements of environmental proceedings as of December 31,
2004.


 


Schedule 3.06(b) to Credit Agreement


 





















 


SCHEDULE 6.01


 


Liens


 


SCHEDULE 6.01


 


LIENS


 


	
  Debtor

  	
  Jurisdiction

  	
  Filing No.

  	
  Filing

  

  Date

  	
  Secured

  

  Party

  	
  Collateral

  
	
  Albermarle Boats, Inc.

  	
  SOS: NC

  	
  0014813

  	
  02/12/01

  	
  Ervin Leasing Company

  	
  Informational filing; item of leased equipment

  
	
  Bayliner Marine Corporation

  	
  SOS: DE

  	
  20753370

  	
  03/05/02

  	
  Carlson Systems Corp.

  	
  Items of equipment (pneumatic tools)

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  40415580

  	
  01/27/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligations

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  40570897

  	
  02/20/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts, letter
  of credit rights and supporting obligation; pursuant to precautionary filing
  provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  40570905

  	
  02/20/04

  	
  Fleet Capital

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts,

  



 


Schedule 6.01 to Credit Agreement


 





















 


- 2 -


 


	
  Debtor

  	
  Jurisdiction

  	
  Filing No.

  	
  Filing

  

  Date

  	
  Secured

  

  Party

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
  Corporation

  	
  chattel paper, documents, instruments, general intangibles,
  investment property, deposit accounts, letter of credit rights and supporting
  obligation; pursuant to precautionary filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  40670861

  	
  03/05/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation; pursuant to precautionary
  filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  40699407

  	
  03/09/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation; pursuant to precautionary
  filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  40827123

  	
  03/18/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation; pursuant to precautionary
  filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  40898496

  	
  03/24/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter

  



 


Schedule 6.01 to Credit Agreement


 





















 


- 3 -


 


	
  Debtor

  	
  Jurisdiction

  	
  Filing No.

  	
  Filing

  

  Date

  	
  Secured

  

  Party

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  of credit rights and supporting obligation;

  

  pursuant to precautionary filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  41031790

  	
  03/31/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation; pursuant to precautionary
  filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  41237298

  	
  04/16/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation; pursuant to precautionary
  filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  41258849

  	
  04/19/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation; pursuant to precautionary
  filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  41374075

  	
  04/30/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation;

  



 


Schedule 6.01 to Credit Agreement


 





















 


- 4 -


 


	
  Debtor

  	
  Jurisdiction

  	
  Filing No.

  	
  Filing

  

  Date

  	
  Secured

  

  Party

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  pursuant to precautionary filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  41391129

  	
  05/03/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation; pursuant to precautionary
  filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  41434747

  	
  05/06/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation; pursuant to precautionary
  filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  41584574

  	
  05/19/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation; pursuant to precautionary
  filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  41633249

  	
  05/26/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation; pursuant to precautionary
  filing provisions of the UCC

  



 


Schedule 6.01 to Credit Agreement


 





















 


- 5 -


 


	
  Debtor

  	
  Jurisdiction

  	
  Filing No.

  	
  Filing

  

  Date

  	
  Secured

  

  Party

  	
  Collateral

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  41765215

  	
  06/14/04

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligation; pursuant to precautionary
  filing provisions of the UCC

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  41855354

  	
  07/02/04

  	
  LaSalle National Leasing Corporation

  	
  Interim financing; all right, title and interest in to and under
  certain Quote Nos. for boat trailers; proceeds

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  42207597

  	
  08/05/04

  	
  LaSalle National Leasing Corporation

  	
  Trailers leased pursuant to certain Master Lease between debtor and
  secured party; related software; general intangibles; all subleases, chattel
  paper, accounts, security deposits and general intangibles relating thereto;
  proceeds; filing made for informational purposes, intended to represent true
  lease

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  42632349

  	
  09/20/04

  	
  LaSalle National Leasing Corporation

  	
  Trailers leased pursuant to certain Master Lease between debtor and
  secured party; related software; general intangibles; all subleases, chattel
  paper, accounts, security deposits and general intangibles relating thereto;
  proceeds; filing made for informational purposes, intended to represent true
  lease

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  43091784

  	
  11/03/04

  	
  LaSalle National Leasing Corporation

  	
  Trailers leased pursuant to certain Master Lease between debtor and
  secured party; related software; general intangibles; all subleases, chattel
  paper, accounts, security deposits and general intangibles relating thereto;
  proceeds; filing made for informational purposes, intended to represent true
  lease

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  43091818

  	
  11/03/04

  	
  LaSalle National

  	
  Trailers leased pursuant to certain Master Lease between debtor and
  secured party; related software; general

  



 


Schedule 6.01 to Credit Agreement


 





















 


- 6 -


 


	
  Debtor

  	
  Jurisdiction

  	
  Filing No.

  	
  Filing

  

  Date

  	
  Secured

  

  Party

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
  Leasing Corporation

  	
  intangibles; all subleases, chattel paper, accounts, security
  deposits and general intangibles relating thereto; proceeds; filing made for
  informational purposes, intended to represent true lease

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  43467596

  	
  12/09/04

  	
  LaSalle National Leasing Corporation

  	
  Trailers leased pursuant to certain Master Lease between debtor and
  secured party; related software; general intangibles; all subleases, chattel
  paper, accounts, security deposits and general intangibles relating thereto;
  proceeds; filing made for informational purposes, intended to represent true
  lease

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  43508456

  	
  12/10/04

  	
  LaSalle National Leasing Corporation

  	
  Trailers leased pursuant to certain Master Lease between debtor and
  secured party; related software; general intangibles; all subleases, chattel
  paper, accounts, security deposits and general intangibles relating thereto;
  proceeds; filing made for informational purposes, intended to represent true
  lease

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  43545631

  	
  12/15/04

  	
  LaSalle National Leasing Corporation

  	
  Trailers leased pursuant to certain Master Lease between debtor and
  secured party; related software; general intangibles; all subleases, chattel
  paper, accounts, security deposits and general intangibles relating thereto;
  proceeds; filing made for informational purposes, intended to represent true
  lease

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  43694520

  	
  12/31/04

  	
  LaSalle National Leasing Corporation

  	
  Trailers leased pursuant to certain Master Lease between debtor and
  secured party; related software; general intangibles; all subleases, chattel
  paper, accounts, security deposits and general intangibles relating thereto;
  proceeds; filing made for informational purposes, intended to represent true
  lease

  



 


Schedule 6.01 to Credit Agreement


 





















 


- 7 -


 


	
  Debtor

  	
  Jurisdiction

  	
  Filing No.

  	
  Filing

  

  Date

  	
  Secured

  

  Party

  	
  Collateral

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  50748146

  	
  03/09/05

  	
  LaSalle National Leasing Corporation

  	
  Trailers leased pursuant to certain Master Lease between debtor and
  secured party; related software; general intangibles; all subleases, chattel
  paper, accounts, security deposits and general intangibles relating thereto;
  proceeds; filing made for informational purposes, intended to represent true
  lease

  
	
  BBG Logistics, Inc.

  	
  SOS: DE

  	
  50972977

  	
  03/16/05

  	
  Fleet Capital Corporation

  	
  Specific items of leased equipment; proceeds thereof, including
  proceeds in the form of goods, accounts, chattel paper, documents,
  instruments, general intangibles, investment property, deposit accounts,
  letter of credit rights and supporting obligations.

  
	
  Boston Whaler, Inc.

  	
  DOS: FL

  	
  200100111528-2

  	
  05/21/01

  	
  BCL Capital

  	
  Specific items of equipment; for informational purposes only

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  10790944

  	
  07/24/01

  	
  IBM Credit Corporation (Lessor)

  	
  Leased computer equipment

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  11517254

  	
  10/26/01

  	
  IBM Credit Corporation (Lessor)

  	
  Leased computer equipment

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  21368483

  	
  06/04/02

  	
  Stuers Inc.

  	
  Specific items of equipment

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  21851652

  	
  07/01/02

  	
  IBM Credit Corporation

  	
  Leased computer equipment; precautionary filing

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  21884406

  	
  07/03/02

  	
  IBM Credit Corporation

  	
  Leased computer equipment; precautionary filing

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  21959836

  	
  07/19/02

  	
  IBM Credit Corporation

  	
  Leased computer equipment; precautionary filing

  



 


Schedule 6.01 to Credit Agreement


 





















 


- 8 -


 


	
  Debtor

  	
  Jurisdiction

  	
  Filing No.

  	
  Filing

  

  Date

  	
  Secured

  

  Party

  	
  Collateral

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  22060832

  	
  08/08/02

  	
  IBM Credit Corporation

  	
  Leased computer equipment; precautionary filing

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  23152539

  	
  12/02/02

  	
  IBM Credit Corporation

  	
  Leased computer equipment; precautionary filing

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  30912488

  	
  04/08/03

  	
  Cupertino National Bank C/D Greater Bay Capital

  	
  Specific items of equipment; proceeds; filing for notice purposes
  only

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  31682155

  	
  07/02/03

  	
  Brunswick Acceptance Company, LLC

  	
  All assets now owned and hereafter existing or acquired as defined in
  Brunswick Sale Agreement and Accounts Receivable Purchase Agreement, both
  dated 10/24/02 between debtor and secured party

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  32229642

  	
  08/28/03

  	
  CIT Communications Finance Corporation

  	
  Equipment now or acquired under specific Lease; proceeds therefrom; filing
  constitutes notice of lessor’s ownership of equipment

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  40243321

  	
  01/29/04

  	
  Ameritech Credit Corporation

  	
  Specific items of equipment true lease; precautionary filing

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  40650624

  	
  03/08/04

  	
  Thompson Tractor Co., Inc.

  	
  Specific items of equipment; proceeds

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  40789950

  	
  03/22/04

  	
  CIT Communications Finance Corporation

  	
  Equipment now or acquired under specific Lease; proceeds therefrom;
  filing constitutes notice of lessor’s ownership of equipment

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  40828642

  	
  03/24/04

  	
  CIT Communications Finance Corporation

  	
  Equipment now or acquired under specific Lease; proceeds therefrom;
  filing constitutes notice of lessor’s ownership of equipment

  



 


Schedule 6.01 to Credit Agreement


 





















 


- 9 -


 


	
  Debtor

  	
  Jurisdiction

  	
  Filing No.

  	
  Filing

  

  Date

  	
  Secured

  

  Party

  	
  Collateral

  
	
  Brunswick Corporation

  	
  SOS: DE

  	
  43228915

  	
  11/16/04

  	
  IBM Credit LLC

  	
  Specific items of equipment; proceeds; precautionary filing

  
	
  Brunswick Corporation

  	
  SOS: IL

  	
  3439166

  	
  08/24/95 Cont’d. 4/14/00

  	
  General Electric Capital Corporation

  	
  Leased equipment; proceeds; true lease

  
	
  Brunswick Corporation

  	
  SOS: IL

  	
  3440659

  	
  08/29/95 Cont’d. 04/14/00

  	
  General Electric Capital Corporation

  	
  Leased equipment; proceeds; true lease

  
	
  Brunswick Corporation

  	
  SOS: IL

  	
  4230951

  	
  06/29/00

  	
  IBM Credit Corporation (Lessor)

  	
  Leased computer equipment; notice filing

  
	
  Brunswick Corporation

  	
  SOS: IL

  	
  4454143

  	
  10/26/01

  	
  IBM Credit Corporation (Lessor)

  	
  Leased computer equipment; notice filing

  
	
  Brunswick New Technologies, Inc.

  	
  SOS: DE

  	
  32236183

  	
  08/28/03

  	
  CIT Communications Finance Corporation

  	
  Leased equipment; products; rentals; rights to use license for any
  software related thereto; proceeds; filing constitutes notice of Lessor’s
  ownership of equipment

  
	
  Cummins Mercruiser Diesel Marine LLC

  	
  SOS: DE

  	
  32273228

  	
  08/11/03

  	
  Toyota Motor Credit Corporation

  	
  Used Toyota M/N 6TGCU25; financing statement for informational
  purposed only

  
	
  Life Fitness, Inc.

  	
  SOS: DE

  	
  11252662

  	
  09/28/01

  	
  Fidelity Leasing Inc.

  	
  Specific Items of equipment

  



 


Schedule 6.01 to Credit Agreement


 





















 


- 10 -


 


	
  Debtor

  	
  Jurisdiction

  	
  Filing No.

  	
  Filing

  

  Date

  	
  Secured

  

  Party

  	
  Collateral

  
	
  Life Fitness, a division of Brunswick Corporation

  	
  SOS: IL

  	
  4197421

  	
  04/14/00

  	
  The CIT Group Equipment Financing, Inc.

  	
  Specific items of equipment

  
	
  Life Fitness, a division of Brunswick Corporation

  	
  SOS: IL

  	
  4234197

  	
  06/29/00

  	
  Jacom Computer Services

  	
  Specific items of leased equipment

  
	
  Life Fitness

  	
  SOS: IL

  	
  4272617

  	
  09/22/00

  	
  Comark Inc.

  	
  True Lease Statement for informational purposes covering specific
  items of equipment, proceeds

  
	
  Life Fitness, Inc.

  	
  SOS: IL

  	
  4403751

  	
  06/22/01

  	
  MCI Capital Services

  	
  All of the debtor’s existing or acquired rights, title and interest
  in, to and under all equipment, inventory, general intangibles, accounts and
  chattel paper, evidencing or arising from Equipment and associated items,
  license and or sublicense to use computer programs and related software that
  are subject of or described in any existing or future equipment schedule to
  that certain Master Lease Agreement between debtor and secured party,
  products and proceeds; notice filing

  
	
  Life Fitness, Inc.

  	
  SOS: IL

  	
  5429374

  	
  06/18/02

  	
  Crown Credit Company

  	
  Specific Items of equipment

  
	
  Life Fitness, Inc.

  	
  SOS: IL

  	
  5429382

  	
  06/18/02

  	
  Crown Credit Company

  	
  Specific Items of equipment

  
	
  Sea-Pro Boats, Inc.

  	
  SOS: SC

  	
  960715-125405A

  	
  07/15/96

  

  Cont’d.

  

  03/12/01

  	
  GE Commercial Finance Corporation

  

  And Yamaha Motor Corp. U.S.A and Yamaha Parts

  	
  Collateral description unavailable

  



 


Schedule 6.01 to Credit Agreement


 





















 


- 11 -


 


	
  Debtor

  	
  Jurisdiction

  	
  Filing No.

  	
  Filing

  

  Date

  	
  Secured

  

  Party

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
  Distributors, Inc.

  	
   

  
	
  Sea-Pro Boats, Inc.

  	
  SOS: SC

  	
  020513-1528501

  	
  05/13/02

  	
  American Honda Motor Co., Inc.

  	
  All Honda outboard engines and marine engines, equipment, products,
  parts... accounts receivable, relating to debtor’s business of selling and
  installing Honda products, whether existing or hereafter acquired

  
	
  Sea-Pro Boats, Inc.

  	
  SOS: SC

  	
  030604-1321116

  	
  06/04/03

  	
  Citicorp Del Lease, Inc.

  	
  Specific item of equipment

  
	
  Sea-Pro Boats, Inc.

  	
  SOS: SC

  	
  041130-1229102

  	
  11/30/04

  	
  Citicorp Leasing, Inc.

  	
  Specific item of equipment

  
	
  Sea Ray Boats, Inc.

  	
  SOS: TN

  	
  200027654

  	
  07/19/00 Cont’d. 01/31/05

  	
  Associates Leasing, Inc.

  	
  Specific items pf equipment (forklifts); cash and non-cash proceeds
  thereof

  
	
  Sea Ray Boats, Inc.

  	
  SOS: TN

  	
  104070057

  	
  12/28/04

  	
  Stiles Machinery, Inc.

  	
  Specific item of equipment; proceeds thereof

  
	
  Valley-Dynamo, LP

  	
  SOS: DE

  	
  22342545

  	
  09/17/02

  	
  US Bancorp Equipment Finance, Inc.-Machine Tool Finance Group

  	
  Specific item of equipment together with all replacements, parts...proceeds,
  insurance recoveries; any receipt of proceeds of the collateral by another
  secured party violates right of Secured Party

  



 


Schedule 6.01 to Credit Agreement


 





















 


EXHIBIT A


 


[Form of Assignment and Assumption]


 


ASSIGNMENT AND ASSUMPTION


 


This Assignment and Assumption (the “Assignment
and Assumption”) is dated as of the Effective Date set forth below and is
entered into by and between the Assignor identified below (the “Assignor”)
and the Assignee identified below (the “Assignee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below
(as amended, the “Credit Agreement”), receipt of a copy of which is
hereby acknowledged by the Assignee.  The
Standard Terms and Conditions set forth in Annex 1 attached hereto (the “Standard
Terms and Conditions”) are hereby agreed to and incorporated herein by reference
and made a part of this Assignment and Assumption as if set forth herein in
full.


 


For an agreed
consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor,
subject to and in accordance with the Standard Terms and Conditions and the
Credit Agreement, as of the Effective Date inserted by the Administrative Agent
as contemplated below (i) all of the Assignor’s rights and obligations in its
capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including any letters of credit, guarantees, and swingline loans included in
such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold
and assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [and is an [Affiliate] [Approved Fund] of [identify Lender]]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Administrative Agent:

  	
   

  	
                                        ,
  as the administrative agent under the Credit Agreement

  



 


Assignment and Assumption


 





















 


- 2 -


 


	
  5.

  	
   

  	
  Credit Agreement:

  	
   

  	
  The $650,000,000 Credit Agreement dated as
  of April 29, 2005 between Brunswick Corporation, the Subsidiary Account
  Parties and the Subsidiary Borrowers party thereto, the Lenders party thereto
  and JPMorgan Chase Bank, N.A., as Administrative Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Assigned Interest:

  	
   

  	
   

  



 


	
  Facility Assigned2

  	
  Aggregate Amount of

  Sub-Commitment

  /Loans for all Lenders

  	
  Amount of

  Sub-Commitment

  /Loans Assigned

  	
  Percentage Assigned

  of

  Commitment/Loans3

  
	
   

  	
  $

  	
  $

  	
  %

  
	
   

  	
  $

  	
  $

  	
  %

  
	
   

  	
  $

  	
  $

  	
  %

  



 


Effective Date:                       
         , 20      
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE
OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The terms set forth in this Assignment and Assumption are hereby agreed
to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 










 


2 Fill
in the appropriate terminology for the types of facilities under the Credit
Agreement that are being assigned under this Assignment (e.g. “Dollar
Sub-Commitment”, “Multicurrency Sub-Commitment”, etc.)


 


3 Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all
Lenders thereunder.


 


Assignment and Assumption


 





















 


- 3 -


 


	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Consented to and]4
  Accepted:

  	
   

  
	
   

  	
   

  
	
  JPMORGAN CHASE BANK, N.A., as

  	
   

  
	
   [Administrative
  Agent][Swingline Lender]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Consented to:]5

  	
   

  
	
   

  	
   

  
	
  BRUNSWICK CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Consented to and]6
  Accepted:

  	
   

  
	
   

  	
   

  
	
  [Issuing Lender], as an

  	
   

  
	
   Issuing Lender

  	
   

  
								



 










 


4 To be added only if the consent of the
Administrative Agent or Swingline Lender is required by the terms of the Credit
Agreement.


 


5 To be added only if the consent of the Company is
required by the terms of the Credit Agreement.


 


6 To be added only if the consent of the Issuing
Lenders is required by the terms of the Credit Agreement.


 


Assignment and Assumption


 





















 


- 4 -


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
				



 


Assignment and Assumption


 





















ANNEX 1


 


STANDARD TERMS AND CONDITIONS FOR


ASSIGNMENT AND ASSUMPTION


 


1.  Representations and
Warranties.  


 


1.1   Assignor.  The Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Company, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Company, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.


 


1.2.  Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it satisfies the requirements, if any,
specified in the Credit Agreement that are required to be satisfied by it in
order to acquire the Assigned Interest and become a Lender, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, (iv) it has received a
copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.01(a) or 5.01(b) thereof,
as applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) attached to the
Assignment and Assumption is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 


2.   Payments.    From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to but excluding


 


Annex 1 to Assignment and Assumption


 





















 


- 2 -


 


the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.


 


3.  General Provisions.
This Assignment and Assumption shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed
counterpart of a signature page of this Assignment and Assumption by
telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption.  This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York.


 


Annex 1 to Assignment and Assumption


 





















 


EXHIBIT B-1


 


[Form of Subsidiary Account Party
Designation Letter]


 


SUBSIDIARY ACCOUNT PARTY DESIGNATION LETTER


 


                        ,
200    


 


To JPMorgan Chase Bank, N.A.,


  as Administrative Agent


270 Park Avenue


New York, New York 10017


 


Each of the Lenders party to the 


Credit Agreement referred to below


 


Re:  Subsidiary
Account Party Designation


 


Ladies and Gentlemen:


 


Reference is made to the Credit Agreement (the “Credit Agreement”)
dated as of April 29, 2005 between Brunswick Corporation, the Subsidiary
Account Parties and the Subsidiary Borrowers party thereto, the Lenders party
thereto and JPMorgan Chase Bank, N.A., as Administrative Agent (the “Administrative
Agent”).  Capitalized terms used but
not defined herein shall have the respective meanings assigned to such terms in
the Credit Agreement.


 


The Company hereby designates [                   ]
(the “Subject Subsidiary”), a wholly-owned Subsidiary of the Company and
a [corporation] duly organized under the laws of [                   ],
as a Subsidiary Account Party in accordance with Section 2.21(a) of
the Credit Agreement until such designation is terminated in accordance with Section 2.21(d).


 


The Subject Subsidiary hereby accepts the above designation and hereby
expressly and unconditionally accepts the obligations of a Subsidiary Account
Party and an Obligor under the Credit Agreement, adheres to the Credit
Agreement and agrees and confirms that, upon your execution and return to the
Company of the enclosed copy of this letter, it shall be a Subsidiary Account
Party for purposes of the Credit Agreement and agrees to be bound by and
perform and comply with the terms and provisions of the Credit Agreement
applicable to it as if it had originally executed the Credit Agreement as a
Subsidiary Account Party.  Pursuant to Section 10.17,
the Subject Subsidiary hereby authorizes and empowers the Company to act as its
representative and attorney-in-fact for the purposes of signing documents and
giving and receiving notices and other communications in connection with the
Credit Agreement and the transactions contemplated thereby and for the purposes
of modifying or amending any provision of the Credit Agreement and further
agrees that the Administrative Agent and each Lender may conclusively rely on
the foregoing authorization.


 


Subsidiary Account Party Designation Letter


 





















 


- 2 -


 


 


The Company hereby confirms and agrees that after giving effect to this
Designation Letter the Guarantee of the Company contained in Article IX of
the Credit Agreement shall apply to all of the obligations of the Subject
Subsidiary under the Credit Agreement. 


 


The Subject Subsidiary hereby represents and warrants:


 


1.                                   The
Subject Subsidiary is a wholly-owned Subsidiary of the Company;


 


2.                                   Each
of the representations and warranties set forth in Sections 3.01, 3.02 and
3.03 of the Credit Agreement is true as if each reference therein to the
Company or to an Obligor were a reference to the Subject Subsidiary and as if
each reference therein to the Loan Documents were a reference to this
Designation Letter and the promissory notes, if any, executed by the Subject Subsidiary
in connection herewith; 


 


3.                                   [The
representations and warranties set forth in Section 3.12 are true and
correct on the date hereof;]7


 


4.                                   The
Subject Subsidiary’s address for notices, other communications and service of
process provided for in the Credit Agreement shall be given in the manner, and
with the effect, specified in Sections 10.01 and 10.09(e) of the Credit
Agreement to it at its “Address for Notices” specified on the signature pages below;
and


 


5.                                   The
Subject Subsidiary shall deliver to the Administrative Agent a process agent
acceptance letter substantially in the form of Exhibit E to the Credit
Agreement, the documents and certificates set forth in Section 2.21 of the
Credit Agreement and such other documents as the Administrative Agent shall
reasonably request that are consistent with conditions for Subsidiary Obligors
set forth in Section 4.01 of the Credit Agreement, each in form and
substance reasonably satisfactory to the Administrative Agent.                                                 


 


Attached hereto are certified copies of the
following documents:


 


(i)                                     the
[certificate of incorporation][certificate of formation][articles of
organization] and [by-laws][limited liability company agreement] [partnership
agreement] of the Subject Subsidiary and authorizing resolutions of the [Board
of Directors][Sole Member][General Partner] of the Subject Subsidiary;8 and


 


(ii)                                  a
certificate of the Secretary or an Assistant Secretary of the Subject
Subsidiary in respect of each of the officers (x) who are authorized to
sign this Agreement and the other Loan Documents on the Subject Subsidiary’s
behalf, and (y) who will, until replaced by another officer or officers duly
authorized for that purpose, act as its representative for the purposes of


 










7                       Insert if the Subject Subsidiary is a Foreign
Subsidiary.


 


8                       To be revised as appropriate to reflect
relevant organizational documents of the Subject Subsidiary.


 


Subsidiary Account Party Designation Letter


 





















 


- 3 -


 


signing documents and giving notices and
other communications in connection with the Credit Agreement, the other Loan
Documents and the transactions contemplated thereby.


 


The designation of the Subject Subsidiary as a Subsidiary Account Party
under the Credit Agreement shall become effective as of the date (the “Effective
Date”) on which the Administrative Agent [and each Issuing Lender that has
notified the Administrative Agent that it will issue Letters of Credit for
account of the Subject Subsidiary]9 accept[s] this
Designation Letter as provided on the signature pages below.  As of the Effective Date, the Subject
Subsidiary shall be entitled to the rights, and subject to the obligations, of
an Account Party, including a Subsidiary Account Party, contained in the Credit
Agreement.  Except as expressly herein
agreed with respect to the joinder of the Subject Subsidiary as a Subsidiary
Account Party, the Credit Agreement shall remain unchanged and in full force
and effect.


 


The Subject Subsidiary hereby agrees that this Designation Letter and
the Credit Agreement shall be governed by, and construed in accordance with,
the law of the State of New York.  The
Subject Subsidiary hereby submits to the nonexclusive jurisdiction of any New
York State court or Federal court of the United States of America, in each case
sitting in New York County, and any appellate court from any thereof, for the
purposes of all legal proceedings arising out of or relating to this
Designation Letter, the Credit Agreement or the transactions contemplated
thereby.  The Subject Subsidiary
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such
a court has been brought in an inconvenient forum.  The Subject Subsidiary further agrees that
service of process in any such action or proceeding brought in New York may be
made upon it by service upon its agent as provided in Section 10.09(d) of
the Credit Agreement.


 


THE SUBJECT SUBSIDIARY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS DESIGNATION LETTER, THE CREDIT
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.


 


This Designation Letter may be executed in any number of counterparts,
all of which taken together shall constitute one and the same agreement.  


 










9                       Insert
if the Subject Subsidiary is a Foreign Subsidiary.


 


Subsidiary Account Party Designation Letter


 





















 


- 4 -


 


	
   

  	
  BRUNSWICK CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF SUBJECT SUBSIDIARY]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ,

  	
   

  
	
   

  	
  a

  	
   

  	
  [corporation]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attn:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Tel:

  	
   

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  	
   

  	
   

  
													



 


Subsidiary Account Party Designation Letter


 





















 


- 5 -


 


Accepted:


 


this        day of


                              ,
200  


 


JPMORGAN CHASE BANK, N.A.,


  as Administrative Agent [and
Issuing Lender]


 


	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [                                         ]10

  	
   

  
	
    as Issuing Lender

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 










10                   Insert
if Subject Subsidiary is a Foreign Subsidiary.


 


Subsidiary Account Party Designation Letter


 





















 


EXHIBIT B-2


 


[Form of Subsidiary Borrower Designation
Letter]


 


SUBSIDIARY BORROWER DESIGNATION LETTER


 


                                         ,
          


 


To JPMorgan Chase Bank, N.A.,


  as Administrative Agent


270 Park Avenue                                                                        


New York, New York 10017


 


Re:  Subsidiary
Borrower Designation


 


Attention:


 


Ladies and Gentlemen:


 


Reference is made to the Credit Agreement (the “Credit Agreement”)
dated as of April 29, 2005 between Brunswick Corporation, the Subsidiary
Account Parties and the Subsidiary Borrowers party thereto, the Lenders party
thereto and JPMorgan Chase Bank, N.A., as Administrative Agent (the “Administrative
Agent”).  Capitalized terms used but
not defined herein shall have the respective meanings assigned to such terms in
the Credit Agreement.


 


The Company hereby designates [                       ]
(the “Subject Subsidiary”), a wholly-owned Subsidiary of the Company and
a [corporation] duly organized under the laws of [                       ],
as a Subsidiary Borrower in accordance with Section 2.21(b) of the
Credit Agreement until such designation is terminated in accordance with Section 2.21(d).


 


The Subject Subsidiary hereby accepts the above designation and hereby
expressly and unconditionally accepts the obligations of a Subsidiary Borrower
and an Obligor under the Credit Agreement, adheres to the Credit Agreement and
agrees and confirms that, upon your execution and return to the Company of the
enclosed copy of this letter, it shall be a Subsidiary Borrower for purposes of
the Credit Agreement and agrees to be bound by and perform and comply with the
terms and provisions of the Credit Agreement applicable to it as if it had
originally executed the Credit Agreement as a Subsidiary Borrower.  Pursuant to Section 10.17 of the Credit
Agreement, the Subject Subsidiary hereby authorizes and empowers the Company to
act as its representative and attorney-in-fact for the purposes of signing
documents and giving and receiving notices (including notices of Borrowing
under the Credit Agreement) and other communications in connection with the
Credit Agreement and the transactions contemplated thereby and for the purposes
of modifying or amending any provision of the Credit Agreement and further
agrees that the Administrative Agent and each Lender may conclusively rely on
the foregoing authorization.


 


Subsidiary Borrower Designation Letter


 





















 


- 2 -


 


The Company hereby confirms and agrees that after giving effect to this
Designation Letter the Guarantee of the Company contained in Article IX of
the Credit Agreement shall apply to all of the obligations of the Subject
Subsidiary under the Credit Agreement. 


 


The Subject Subsidiary hereby represents and warrants:


 


1.                                          The
Subject Subsidiary is a wholly-owned Subsidiary of the Company;


 


2.                                          Each
of the representations and warranties set forth in Sections 3.01, 3.02 and
3.03 of the Credit Agreement is true as if each reference therein to the Company
or to an Obligor were a reference to the Subject Subsidiary and as if each
reference therein to the Loan Documents were a reference to this Designation
Letter and the promissory notes, if any, executed by the Subject Subsidiary in
connection herewith; 


 


3.                                          [The
representations and warranties set forth in Section 3.12 are true and
correct on the date hereof;]11


 


4.                                          The
Subject Subsidiary’s addresses for notices, other communications and service of
process provided for in the Credit Agreement shall be given in the manner, and
with the effect, specified in Sections 10.01 and 10.09(e) of the Credit
Agreement to it at its “Address for Notices” specified on the signature pages below;
and


 


5.                                          The
Subject Subsidiary shall deliver to the Administrative Agent a process agent
acceptance letter substantially in the form of Exhibit E to the Credit
Agreement, the documents and certificates set forth in Section 2.21 of the
Credit Agreement and such other documents as the Administrative Agent shall
reasonably request that are consistent with conditions for Subsidiary Obligors
set forth in Section 4.01 of the Credit Agreement, each in form and
substance reasonably satisfactory to the Administrative Agent.


 


Attached hereto are certified copies of the following documents:


 


(iii)                               the
[certificate of incorporation][certificate of formation][articles of
organization] and [by-laws][limited liability company agreement] [partnership
agreement] of the Subject Subsidiary and authorizing resolutions of the [Board
of Directors][Sole Member][General Partner] of the Subject Subsidiary;12 and


 


(iv)                              a
certificate of the Secretary or an Assistant Secretary of the Subject
Subsidiary in respect of each of the officers (x) who are authorized to
sign this Agreement and the other Loan Documents on the Subject Subsidiary’s
behalf, and (y) who will, until replaced by another officer or officers duly


 










11                   Insert
if the Subject Subsidiary is a Foreign Subsidiary.


 


12                   To
be revised as appropriate to reflect the relevant organizational documents of the
Subject Subsidiary.


 


Subsidiary Borrower Designation Letter


 





















 


- 3 -


 


authorized for that purpose, act as its
representative for the purposes of signing documents and giving notices and
other communications in connection with the Credit Agreement, the other Loan
Documents and the transactions contemplated thereby.


 


The designation of the Subject Subsidiary as a Subsidiary Borrower
under the Credit Agreement shall become effective as of the date (the “Effective
Date”) on which the Administrative Agent [and each Lender that has notified
the Administrative Agent that it will make loans to the Subject Subsidiary]13
accept[s] this Designation Letter as provided on the signature pages below.  As of the Effective Date, the Subject
Subsidiary shall be entitled to the rights, and subject to the obligations, of
a Subsidiary Borrower.  Except as
expressly herein agreed with respect to the joinder of Subject Subsidiary as a
Subsidiary Borrower, the Credit Agreement shall remain unchanged and in full
force and effect.


 


The Subject Subsidiary hereby agrees that this Designation Letter, the
Credit Agreement and the Notes shall be governed by, and construed in
accordance with, the law of the State of New York.  The Subject Subsidiary hereby submits to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America, in each case sitting in New York County, and any
appellate court from any thereof, for the purposes of all legal proceedings
arising out of or relating to this Designation Letter, the Credit Agreement or
the transactions contemplated thereby. 
The Subject Subsidiary irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.  The Subject
Subsidiary further agrees that service of process in any such action or
proceeding brought in New York may be made upon its agent appointed as provided
in Section 10.09(d) of the Credit Agreement.


 


THE SUBJECT SUBSIDIARY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS DESIGNATION LETTER, THE CREDIT
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.


 


This Designation Letter may be executed in any number of counterparts,
all of which taken together shall constitute one and the same agreement.  This Designation Letter 


 


	
   

  	
  BRUNSWICK CORPORATION

  



 










13                   Insert
if the Subject Subsidiary is a Foreign Subsidiary.


 


Subsidiary Borrower Designation Letter


 





















 


- 4 -


 


	
   

  	
  By

  	
   

  	
   

  
	
   

  	
    Title:

  
	
   

  	
   

  
	
   

  	
  [NAME OF SUBJECT SUBSIDIARY]

  
	
   

  	
  a

  	
   

  	
  [corporation]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notices

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attn:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tel:

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  
	
  ACCEPTED

  	
   

  
	
   

  	
   

  
	
  JPMORGAN CHASE BANK, N.A.

  	
   

  
	
    as Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
    Title:

  	
   

  
	
   

  	
   

  
	
  [APPROVING RELEVANT LENDER]14

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
    Title:

  	
   

  
													



 










14                   Insert
if Subject Subsidiary is a Foreign Subsidiary.


 


Subsidiary Borrower Designation Letter


 





















 


EXHIBIT C


 


[Opinion of Counsel to the Obligors]


 


 


April [       ],
2005


 


To the
Lenders party to the Credit Agreement


   referred to below and JPMorgan Chase Bank,
N.A.,


   as Administrative Agent


 


Ladies
and Gentlemen:


 


We have acted as special counsel to Brunswick
Corporation, a Delaware corporation (the “Company”), and the companies
listed on Annex I hereto (each a “Subsidiary Obligor” and collectively,
the “Subsidiary Obligors”; the Company and the Subsidiary Obligors, each
an “Obligor” and collectively, the “Obligors”; the Company and
Brunswick International Limited, Marine Power Europe, Inc., Brunswick
Bowling & Billiards Corporation and Brunswick Commercial &
Government Products, Inc., each a “Domestic Obligor” and
collectively, the “Domestic Obligors”; and Brunswick Europe Holdings
Limited, Brunswick Hungary Kft and Centennial Assurance Company, Ltd., each a “Foreign
Obligor” and collectively the “Foreign Subsidiary Obligors”) in
connection with the negotiation, execution and delivery of the Credit Agreement
(the “Credit Agreement”) dated as of April 29, 2005 among the Company,
the Subsidiary Account Parties and the Subsidiary Borrowers party thereto from
time to time, the Lenders party thereto and JPMorgan Chase Bank, N.A., as
Administrative Agent, providing for extensions of credit to be made by the
Lenders to the Company and certain of the Company’s designated subsidiaries in
an aggregate principal or face amount not exceeding $650,000,000.  Terms defined in the Credit Agreement are
used herein as defined therein.  We are delivering
this opinion letter to you pursuant to Section 4.01(b) of the Credit
Agreement at the request of the Company.


 


In rendering the opinions expressed below, we have
examined:


 


(a)                         the Credit Agreement;


 


(b)                        the promissory notes dated the
date hereof in favor of LaSalle Bank National Association, The Royal Bank of
Scotland PLC, Harris Trust and Savings Bank, Lloyds TBS Bank PLC, The Bank of
New York, PNC Bank, National Association, Deutsche Bank AG New York Branch and
U.S. Bank National Association, respectively, executed and delivered by the Company
or the relevant Subsidiary Borrower on the date hereof pursuant to the Credit
Agreement (such notes, together with the Credit Agreement, the “Credit
Documents”); and


 


(c)                         such records of the Obligors and
such other documents as we have deemed necessary as a basis for the opinions
expressed below.


 


Opinion of Counsel to the Obligors


 





















 


 


In our examination, we have assumed the legal capacity
of all individuals, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies.  When relevant facts were not independently
established, we have relied upon statements of governmental officials and upon
representations made in or pursuant to the Credit Agreement and certificates of
appropriate representatives of each Obligor. 
We have also assumed that all licenses,
authorizations and approvals of (including any exchange control approvals), and
all filings or registrations with, any Governmental Authority of any
jurisdiction in which a Foreign Subsidiary Obligor is located necessary for the
making and performance by each Foreign Subsidiary Obligor of the Credit
Documents have been duly obtained and made.


 


In rendering the opinions expressed below, we have
assumed, with respect to all of the documents referred to in this opinion
letter, that (except to the extent that we expressly opine on such matters
below as to one or more of the Obligors):


 


(i)                                     such
documents have been duly authorized by, have been duly executed and delivered
by, and constitute legal, valid, binding and enforceable obligations of, all of
the parties to such documents;


 


(ii)                                  all
signatories to such documents have been duly authorized;


 


(iii)                               all
of the parties to such documents are duly organized and validly existing and
have the power and authority (corporate or other) to execute, deliver and
perform such documents; and


 


(iv)                              the
execution, delivery and performance by the parties to such documents do not and
will not violate the articles or certificate of incorporation, articles of
association, by-laws or other constitutive documents, as applicable, of any
such party, any contract or indenture to which any such party is a party or by
which it is created or it or any of its property is bound, or any order or
decree of any court, administrative agency or other Governmental Authority
applicable to any such party, or any law applicable to any such party.


 


Based upon and subject to the foregoing and subject
also to the comments and qualifications set forth below, and having considered
such questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:


 


1.                                          Each
Domestic Obligor is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware.  Each Domestic Obligor has all requisite
corporate power and authority to carry on its business as now conducted, as
such business is described in the 2004 10-K. 
Each of the Company and Brunswick Bowling & Billiards
Corporation is qualified to do business in, and is in good standing in, the
State of Illinois.


 


2.                                          The
execution, delivery and performance by each Domestic Obligor of the Credit
Documents to which it is a party are within the corporate powers of such


 


2


 


Opinion of Counsel to the Obligors


 





















 


Domestic Obligor.


 


3.                                          The
execution, delivery and performance by each Domestic Obligor of the Credit
Documents to which it is a party has been duly authorized by all necessary
corporate action on the part of such Domestic Obligor that is a party thereto.


 


4.                                          The
Credit Documents have been duly executed and delivered by each Domestic Obligor
that is a party thereto.


 


5.                                          The
Credit Documents constitute the legal, valid and binding obligations of each
Borrower that is a party thereto, enforceable against such Borrower in
accordance with their terms.  The Credit
Agreement constitutes the legal, valid and binding obligation of each Account
Party that is a party thereto, enforceable against such Account Party in
accordance with its terms.


 


6.                                          The
execution, delivery and performance by the Company and each Domestic Subsidiary
Obligor of the Credit Documents to which it is a party (a) do not require
any consent or approval of, registration or filing with, or any other action
by, any Illinois, New York or Federal Governmental Authority under any
Applicable Law of the States of New York or Illinois or of the United States of
America, (b) will not violate any Applicable Law of the States of New York
or Illinois or of the United States of America applicable to such Domestic
Obligor or such Domestic Obligor’s certificate of incorporation, article of
incorporation or by-laws or, to our knowledge, any order, writ, decree or
injunction of any Governmental Authority known to us to which such Domestic
Obligor is a party or by which it is bound, and (c) to our knowledge, will
not violate, result in a default under, result in the creation or imposition of
any Lien on any asset of such Domestic Obligor under, or give rise to a right
to require any payment to be made by such Domestic Obligor under, any
indenture, agreement or other instrument binding upon such Domestic Obligor and
identified on Annex II to this opinion letter.  For purposes of this opinion letter, “Applicable
Law” means, with respect to any jurisdiction, those laws, rules and
regulations of that jurisdiction that, in our experience, are normally
applicable to transactions of the type contemplated by the Credit Agreement,
without our having made any special investigation as to the applicability of
any specific law, rule or regulation.


 


7.                                          The
execution, delivery and performance by each Foreign Subsidiary Obligor of the
Credit Documents to which it is a party (a) do not require any consent or
approval of, registration or filing with, or any other action by, any Illinois,
New York or Federal Governmental Authority under any Applicable Law of the
States of New York or Illinois or of the United States of America and (b) will
not violate any Applicable Law of the States of New York or Illinois or of the
United States of America applicable to such Obligor.


 


8.                                          Neither
the Company nor any other Obligor is (a) an “investment company”


 


3


 


Opinion of Counsel to the Obligors


 





















 


(as defined in the Investment Company Act of 1940, as
amended (the “ICA”)) registered or required to be registered under the
ICA,  or (b) a “holding company” as
defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935.


 


The foregoing opinions are subject to the following
comments and qualifications:


 


A.                                   The
opinions expressed in Paragraph 5 are subject to (i) limitations imposed
by any applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws affecting creditors’ rights generally (including the possible judicial application of foreign laws or
governmental action affecting the rights of creditors generally),
(ii) the effect of general principles of equity, including but not limited
to concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law), and (iii) limitations
imposed by public policy under certain circumstances, including on the
enforceability of provisions indemnifying a party against its own wrongful or
negligent acts.


 


B.                                     We
express no opinion as to the effect of (i) the compliance or noncompliance
of the Administrative Agent or any Lender with any state or federal laws or
regulations applicable to the Administrative Agent or any Lender because of the
Administrative Agent’s or any Lender’s legal or regulatory status or the nature
of the Administrative Agent’s or any Lender’s business or (ii) the failure
of the Administrative Agent or any Lender to be authorized to conduct business
in any jurisdiction.


 


C.                                     The
enforceability of provisions in the Credit Documents to the effect that terms
may not be waived or modified except in writing may be limited under certain
circumstances.


 


D.                                    We
express no opinion as to (i) the effect of the laws of any jurisdiction in
which any Lender is located (other than the States of Illinois and New York)
that limit the interest, fees or other charges such Lender may impose, (ii) the
last sentence of Section 2.19(d) of the Credit Agreement, (iii) Section 10.08
of the Credit Agreement, (iv) the first sentence of Section 10.09(b) of
the Credit Agreement, insofar as such sentence relates to the subject matter
jurisdiction of the United States District Court for the Southern District of
New York to adjudicate any controversy related to the Credit Agreement, (v) any
provisions pursuant to which a Domestic Obligor consents to the service of
process by means prescribed in the Credit Agreement, (vi) the first
sentence of Section 10.10 of the Credit Agreement, (vii) Section 10.11
of the Credit Agreement and (viii) the Federal securities laws of the
United States of America or any state securities or blue sky laws.


 


E.                                      We
wish to point out with reference to obligations stated to be payable in a
currency other than Dollars that (i) a New York statute provides that a
judgment rendered by a court of the State of New York in respect of an
obligation denominated in such other currency would be rendered in such other
currency and would be converted into Dollars at the rate of exchange prevailing
on the date of entry of the judgment and (ii) a judgment rendered by a
Federal court sitting in the State of New York in respect of an obligation denominated
in such other currency may be expressed in Dollars, but we express no opinion
as to the rate of exchange such Federal court would apply.


 


4


 


Opinion of Counsel to the Obligors


 





















 


With respect to the opinions in Paragraph 8(a) above,
we have relied exclusively as to factual matters on a certificate of the
Company dated the date of this opinion letter. 
We note that, for purposes of determining whether a particular entity is
an “investment company” within the meaning of the ICA, it is necessary to
examine the “value” of the assets of such entity within the meaning of Section 2(a)(41)(A) of
the ICA.  Section 2(a)(41)(A)(ii) of
the ICA provides that the “value” of certain assets held by an entity shall be
the “fair value” of such assets as determined in good faith by such entity’s
board of directors (or similar governing body). 
Neither the Board of Directors of the Company nor that of any Subsidiary
was requested to determine the value of any assets required to be valued at “fair
value” pursuant to Section 2(a)(41)(A)(ii), but the certificate referred
to above in this paragraph makes certain certifications regarding the value of
the assets of the Company and certain of its subsidiaries and states that values
were determined in good faith by a person or persons having such knowledge of
business and financial matters as to be in a position to determine such fair
values.  We have assumed, however, with
your permission, that all assets of the Company and its Subsidiaries that are
required to be valued at “fair value” pursuant to Section 2(a)(41)(A)(ii) of
the ICA by the Board of Directors of the Company or of the relevant Subsidiary,
as the case may be, would have been valued at the same values ascribed to such
assets for purposes of such certificate had the Board of Directors of the
Company or of the relevant Subsidiary determined the “fair value” thereof
pursuant to such section.


 


Any opinion or statement herein which is expressed to
be “to our knowledge” or is otherwise qualified by words of like import means
that the lawyers currently practicing law with Sidley Austin Brown &
Wood LLP and its affiliate partnerships who have had an active involvement in
negotiating or reviewing the Credit Documents have no current conscious
awareness of any facts or information contrary to such opinion or
statement.  With respect to such matters,
such persons, with your express permission and consent, have not undertaken any
other investigation or inquiry of other lawyers practicing law with this firm,
or any review of files maintained by this firm, or any inquiry of officers or
employees of the Obligors.  The reference
to “conscious awareness” in this paragraph has the meaning given that phrase in
the Third-Party Legal Opinion Report, Including the Legal Opinion Accord, of
the Section of Business Law, American Bar Association, 47 Bus. Law
167, 192 (1991).


 


The foregoing opinions are limited to matters
involving the Delaware General Corporation Law, the federal laws of the United
States of America and the laws of the States of Illinois and New York, and we
do not express any opinion as to the laws of any other jurisdiction.


 


This opinion letter is furnished by us solely for your
benefit and the benefit of your successors and assignees and future
participants under the Credit Agreement, and it may not be relied upon by, or
quoted or delivered to, any person other than such successors, assignees and
participants, your legal counsel and the legal counsel of such successors,
assignees and participants without, in each instance, our prior written
consent.  The opinions expressed above
are based solely on factual matters in existence as of the date hereof and laws
and regulations in effect on the date hereof, and we assume no obligation to
revise or supplement this opinion letter should such factual matters change or
should such laws or regulations be changed by legislative or regulatory action,
judicial decision or otherwise.


 


5


 


Opinion of Counsel to the Obligors


 





















 


Very truly yours,


 


6


 


Opinion of Counsel to the Obligors


 





















 


ANNEX I


 


Subsidiaries 


 


Brunswick International Limited


Brunswick Hungary Kft


Brunswick Europe Holdings Limited


Marine Power Europe, Inc.


Centennial Assurance Company, Ltd.


Brunswick Bowling & Billiard Corporation


Brunswick Commercial & Government Products, Inc.


 


Opinion of Counsel to the Obligors


 





















 


ANNEX II


 


Indentures, Agreements and Instruments


 


1.                                       Indenture
dated as of March 15, 1987 between Brunswick Corporation and Continental
Illinois National Bank and Trust Company of Chicago, as Trustee (as heretofore
amended, restated, supplemented or otherwise modified).


 


Opinion of Counsel to the Obligors


 





















 


EXHIBIT D


 


[Form of Opinion of Special New York
Counsel to JPMCB]


 


April 29, 2005


 


To the Lenders party to the Credit Agreement


   referred to below and JPMorgan
Chase Bank, N.A.,


   as Administrative Agent


 


Ladies and Gentlemen:


 


We have acted as special New York counsel to JPMorgan Chase Bank, N.A.
(“JPMCB”) in connection with the Credit Agreement (the “Credit
Agreement”) dated as of April 29, 2005, between Brunswick Corporation
(the “Company”), the Subsidiary Account Parties and/or the Subsidiary
Borrowers party thereto, the Lenders party thereto and JPMCB, as Administrative
Agent, providing for extensions of credit to be made by the Lenders to the
Company and certain of the Company’s designated subsidiaries in an aggregate
principal or face amount not exceeding $650,000,000.  Terms defined in the Credit Agreement are
used herein as defined therein.  This
opinion letter is being delivered pursuant to Section 4.01(c) of the
Credit Agreement.


 


In rendering the opinions expressed below, we have examined an executed
counterpart of the Credit Agreement.  In
our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with authentic original documents of all documents submitted to us as
copies.  When relevant facts were not
independently established, we have relied upon representations made in or
pursuant to the Credit Agreement.  We
have also assumed that the Credit Agreement has been duly authorized, executed
and delivered by, and (except, to the extent set forth below, as to any
Obligor) constitutes a legal, valid, binding and enforceable obligations of,
all of the parties thereto, that all signatories thereto have been duly
authorized, that all such parties are duly organized and validly existing and
have the power and authority (corporate or other) to execute, deliver and
perform such documents, and that all authorizations, approvals or consents of
(including, without limitation, all foreign exchange control approvals), and
all filings or registrations with, any governmental or regulatory authority or
agency of the country of organization of any Foreign Subsidiary Account Party
or Foreign Subsidiary Borrower party to the Credit Agreement (including the
central bank of each such country) required for the making and performance by
such party of the Credit Agreement have been obtained or made and are in
effect.


 


Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such questions
of law as we have deemed necessary as a basis for the opinions expressed below,
we are of the opinion that the Credit Agreement constitutes the legal, valid
and binding obligation of each Obligor party thereto, enforceable against such
Obligor in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
other similar laws relating to or affecting the rights of creditors generally,
and subject to possible


 


Opinion of Special New York Counsel to JPMCB


 





















 


- 2 -


 


judicial application of foreign laws or governmental action affecting
the rights of creditors generally, and except as the enforceability of the
Credit Agreement is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including (a) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (b) concepts of
materiality, reasonableness, good faith and fair dealing.


 


The foregoing opinions are subject to the following comments and
qualifications:


 


(A)  The enforceability of Section 10.03
of the Credit Agreement may be limited by laws limiting the enforceability of
provisions exculpating or exempting a party from, or requiring indemnification
of a party for, liability for its own action or inaction, to the extent the
action or inaction involves gross negligence, recklessness, willful misconduct
or unlawful conduct.


 


(B)  The enforceability of provisions in
the Credit Agreement to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.


 


(C)  We express no opinion as to (i) the
effect of the laws of any jurisdiction in which any Lender is located (other
than the State of New York) that limit the interest, fees or other charges such
Lender may impose for the loan or use of money or other credit, (ii) the
last sentence of Section 2.19(d) of the Credit Agreement, (iii) Section 10.08
of the Credit Agreement, (iv) the first sentence of Section 10.09(b) of
the Credit Agreement, insofar as such sentence relates to the subject-matter
jurisdiction of the United States District Court for the Southern District of
New York to adjudicate any controversy related to the Credit Agreement, (v) the
waiver of inconvenient forum set forth in Section 10.09(c) of the
Credit Agreement with respect to proceedings in the United States District
Court for the Southern District of New York, (vi) Section 10.11 of
the Credit Agreement and (vii) Section 10.16 of the Credit Agreement
to the extent it relates to immunity acquired after the date of execution and
delivery of the Credit Agreement.


 


(D)  Clause (iii) of the second
sentence of Section 9.02 may not be enforceable to the extent that the
Guaranteed Obligations are materially modified.


 


(E)  We wish to point out with reference
to obligations stated to be payable in a currency other than Dollars that (i) a
New York statute provides that a judgment rendered by a court of the State of
New York in respect of an obligation denominated in such other currency would
be rendered in such other currency and would be converted into Dollars at the
rate of exchange prevailing on the date of entry of such judgment and (ii) a
judgment rendered by a United States Federal court sitting in the State of New
York in respect of an obligation denominated in such other currency may be
expressed in Dollars, but we express no opinion as to the rate of exchange such
Federal court would apply.


 


The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York, and
we do not express any


 


Opinion of Special New York Counsel to JPMCB


 





















 


- 3 -


 


opinion as to the laws of any other jurisdiction.  Without limiting the foregoing, we do not
hold ourselves out as experts on, or purport to advise on, the laws of the
country of organization of any Foreign Subsidiary Account or Foreign Subsidiary
Borrower party to the Credit Agreement.


 


This opinion letter is provided to you by us in our capacity as special
New York counsel to JPMCB pursuant to Section 4.01(c) of the Credit
Agreement and may not be relied upon by any other person or for any purpose
other than in connection with the transactions contemplated by the Credit
Agreement without, in each instance, our prior written consent.


 


Very truly yours,


 


WJM/WFC


 


Opinion of Special New York Counsel to JPMCB


 





















 


EXHIBIT E


 


[Form of Process Agent Acceptance
Letter]


 


CT Corporation System


 


                 ,
200  


 


To:           JPMorgan
Chase Bank, N.A.,


as administrative agent under the

Credit Agreement referred to below

(the “Administrative Agent”)


 


Re:  [                ]
(the “Subject Subsidiary”)


 


Ladies and Gentlemen:


 


In respect of the Credit Agreement
(the “Credit Agreement”) dated as of April 29, 2005 between Brunswick Corporation (the “Company”), the
Subsidiary Account Parties and the Subsidiary Borrowers party thereto, the
Lenders party thereto and the Administrative Agent, the undersigned
hereby accepts the irrevocable designation and appointment of it as of the date
hereof as agent for the Subject Subsidiary to accept and acknowledge service of
any and all process, as contemplated by Section 10.09(e) of the
Credit Agreement and otherwise as provided thereby, such acceptance to remain
in effect until the Credit Agreement shall have been terminated and all
obligations thereunder of the Subject Subsidiary shall have been paid in full.


 


The undersigned agrees to give the Administrative Agent or the Subject
Subsidiary and the Company, as applicable, prompt notice by telephone, fax,
telex, cable or e-mail, at the telephone number, fax number or e-mail address set
forth on Annex A upon receipt of all papers served upon the undersigned
pursuant to such appointment and to forward promptly to the Administrative
Agent or the Subject Subsidiary and the Company, as applicable, at the address
set forth in Annex A, all such papers served pursuant to such appointment by
reputable overnight carrier.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  CT CORPORATION SYSTEM

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


Process Agent Acceptance Letter


 





















 


- 2 -


 


Annex A


 


	
   

  	
  Addresses

  
	
   

  	
   

  
	
   

  	
  [Administrative Agent]

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Subject Subsidiaries]

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Company]

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


Opinion of Special New York Counsel to JPMCB


 





















 


EXHIBIT F


 


[Form of Termination Letter]


 


TERMINATION LETTER


 


                    ,
200   


 


To JPMorgan Chase Bank, N.A.,


  as Administrative Agent


270 Park Avenue


New York, New York 10017


 


[                               ,


  as Issuing Lender


 


                            ]


[Insert address of each 


Approving Relevant Lender]


 


Each of the Lenders party to the 


Credit Agreement referred to below


 


Re:  Termination
of [                    ]
(the “Subject Subsidiary”) as [Subsidiary Account Party][Subsidiary Borrower]


 


The Company hereby gives notice pursuant to Section 2.21 of the
Credit Agreement dated as of April 29, 2005 between Brunswick Corporation
(the “Company”), the Subsidiary Account Parties and the Subsidiary
Borrowers party thereto, the Lenders party thereto (the “Lenders”) and
the Administrative Agent (the “Credit Agreement”) that, effective as of
the date hereof, the Subject Subsidiary is terminated as [an Account Party][a
Borrower] under the Credit Agreement and all commitments by the Lenders [to
issue Letters of Credit for account of such Account Party][make Loans for
account of such Borrower] under the Credit Agreement are hereby terminated.


 


Pursuant to Section 2.21 of the Credit Agreement, the Company
hereby certifies [that there is no LC Exposure outstanding with respect to any
Letter of Credit for which the Subject Subsidiary is an Account Party][that all
principal and interest on any Loan of the Subject Subsidiary and all other
amounts payable by such Subject Subsidiary pursuant to the Credit Agreement
have been paid in full on or prior to the date hereof].


 


All obligations of the Subject Subsidiary arising in respect of any
period in which the Subject Subsidiary was, or on account of any action or
inaction taken by the Subject Subsidiary as, [an Account Party][a Borrower]
under the Credit Agreement shall survive the termination effected by this
notice.


 


Termination Letter


 





















 


- 2 -


 


Terms used herein have the meanings assigned to them in the Credit
Agreement.


 


	
   

  	
  BRUNSWICK CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  	
   

  



 


F2-2