EX-4.3(A)







Exhibit 4.3(a)




EXECUTION COPY




AMENDMENT NO. 2 TO

AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of
September [___], 2008, is entered into by and among IDEX CORPORATION, a Delaware corporation (the
“Company”), FLUID MANAGEMENT EUROPE B.V. (“FME”, and together with the Company, the “Borrowers”),
an entity organized under the laws of the Netherlands, as a Designated Borrower (as defined below)
each lender from time to time party to the Credit Agreement referred to below (each, a “Lender”,
and collectively, the “Lenders”) that is a signatory hereto, and BANK OF AMERICA, N.A., as
Administrative Agent (in such capacity, the “Administrative Agent”), Swing Line Lender and L/C
Issuer.



RECITALS




     WHEREAS, the Company, the Lenders and the Administrative Agent are parties to an Amended and
Restated Credit Agreement dated as of December 21, 2006, (as amended, restated, extended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), pursuant to which
the Administrative Agent and the Lenders have extended certain credit facilities to the Company;
and



     WHEREAS, the Company and FME have requested that the Administrative Agent and the Lenders
agree to, among other things, amend certain provisions of the Credit Agreement as set forth below
to provide for FME, and certain other Subsidiaries of the Company from time to time, to become a
Designated Borrower under the Credit Agreement, and the Lenders have agreed to such request,
subject to the terms and conditions of this Agreement.



     NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:



     1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings, if any, assigned to such terms in the Credit Agreement.



     2. Interpretation. The rules of interpretation set forth in Sections 1.02
through 1.09 of the Credit Agreement shall be applicable to this Agreement and are
incorporated herein by this reference.



     3. Amendments to Credit Agreement. Subject to the terms and conditions hereof and
with effect from and after the Effective Date (defined below):



 









 





          (a) the Credit Agreement (including Exhibits thereto, but excluding the Schedules thereto,
which will not be amended except as provided in clause (b) below) shall be amended so that, after
giving effect to all such amendments, it reads in its entirety as set forth on Exhibit A as
attached hereto; and




          (b) the Credit Agreement shall be further amended by renaming Schedule 10.02 as
Schedule 11.02.




     4. Consent to FME as a Designated Borrower.



          (a) In connection with this Agreement and the amendments to the Credit Agreement contained
herein, each of the parties hereto hereby agrees that in accordance with and pursuant to the
provisions of Section 2.18 of the Credit Agreement (as amended hereby), upon the occurrence
of the Effective Date (defined below), FME shall constitute a “Designated Borrower” and a
“Borrower” under the Credit Agreement without the need of further delivery of Exhibits G
and H otherwise required pursuant to Section 2.18 of the Credit Agreement (as
amended hereby); provided that, notwithstanding the time prescribed in Section 2.18
(c), no Committed Loan Notice or Letter of Credit Application may be submitted by or on behalf
of FME as a Designated Borrower until the date three Business Days after the Effective Date.
Notwithstanding the foregoing, for purposes of Section 5 hereof, FME shall be deemed to be
a “Borrower” under the Credit Agreement for the making of the representations and warranties
contained therein.




          (b) The parties hereto hereby confirm that with effect from Effective Date, the Designated
Borrower shall have obligations, duties and liabilities toward each of the other parties to the
Credit Agreement identical to those which the Designated Borrower would have had if the Designated
Borrower had been an original party to the Credit Agreement as a Borrower. As of the Effective
Date, the Designated Borrower confirms its acceptance of, and consents to, all representations and
warranties, covenants, and other terms and provisions of the Credit Agreement.




     5. Representations and Warranties. The Borrowers hereby represent and warrant to the
Administrative Agent and the Lenders as follows:



          (a) No Default or Event of Default has occurred and is continuing (or would result from the
amendments contemplated hereby).




          (b) The execution, delivery and performance by the Borrowers of this Agreement have been duly
authorized by all necessary corporate and other action and do not and will not require any
registration with, consent or approval of, or notice to or action by, any Person (including any
Governmental Authority) in order to be effective and enforceable.




          (c) This Agreement constitutes the legal, valid and binding obligations of each Borrower,
enforceable against it in accordance with its terms, without defense, counterclaim or offset.




          (d) All representations and warranties of the Borrowers contained in Article V of the
Credit Agreement are true and correct on and as of the Effective Date, except to the extent




2









 





that such representations and warranties specifically refer to an earlier date, in which case
they are true and correct as of such earlier date, and except that for purposes of this Section
5(d), the representations and warranties contained in Section 5.11(a) of the Credit
Agreement shall be deemed to refer to the most recent statements furnished pursuant to Sections
6.01(a) and 6.01(b) of the Credit Agreement.




     6. Effective Date.



          (a) This Agreement will become effective on the date on which each of the following conditions
has been satisfied (the “Effective Date”):





          (i) the Administrative Agent shall have received from the Borrowers and the Lenders a
duly executed original (or, if elected by the Administrative Agent, an executed facsimile
copy) counterpart to this Agreement;




          (ii) Notes, if any, executed by FME in favor of each Lender requesting such Notes;




          (iii) the Administrative Agent shall have received all of the following, in form and
substance satisfactory to the Administrative Agent and each Lender:




     (A) certificate of a Responsible Officer of FME certifying as to the
incumbency and genuineness of the signature of each management board member
of FME executing the Loan Documents to which it is a party and certifying
that attached thereto is a true, correct and complete copy of (v) the deed
of incorporation of FME, (w) the articles of association of FME as in effect
on the date hereof, (x) resolutions duly adopted by (1) the board of
directors and by the general meeting of shareholders of FME and (2) to the
extent applicable, the “large company regime” supervisory board, in each
case, authorizing the transactions contemplated hereunder, including FME
constituting a Designated Borrower pursuant to the Credit Agreement (as
amended hereby), and the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party, and (y) an
excerpt of the Dutch trade register of FME as of a recent date, and (z) to
the extent applicable, a positive advice rendered by FME Works Council in
respect of the transactions contemplated hereunder, including FME
constituting a Designated Borrower pursuant to the Credit Agreement (as
amended hereby);




     (B) a copy of the resolutions of the board of directors of the Company
authorizing, this Agreement, including the guaranty of the obligations of
the Designated Borrowers contained in the Credit Agreement (as amended
hereby), certified as of the date hereof by the Secretary or an Assistant
Secretary of the Company;



3









 






     (C) an opinion of Latham & Watkins LLP and of Dutch special counsel to
FME, each addressed to the Administrative Agent and the Lenders (which such
opinions shall expressly permit reliance by successors and assigns of the
Administrative Agent and each Lender), in form and substance satisfactory to
the Administrative Agent.




          (iv) the Administrative Agent shall have received all documentation and other
information requested by the Administrative Agent with respect to FME, in form and substance
satisfactory to the Administrative Agent, in order to comply with Section 11.16 of
the Credit Agreement;




          (v) the Company shall have paid to the Administrative Agent, for the benefit of the
Lenders, an amendment fee in connection with this Agreement in an amount equal to $6,000 for
each Lender;




          (vi) the Administrative Agent shall have been reimbursed for all fees and out-of-pocket
charges and other expenses incurred in connection with this Agreement, including, without
limitation, the reasonable fees and disbursements of counsel for the Administrative Agent;




          (vii) to the extent that the Company submits a Committed Loan Notice, on behalf of FME,
prior to the Effective Date as permitted pursuant to Section 7(i) of this Agreement,
the Administrative Agent shall have received a side letter dated and received on or prior to
the date of such Committed Loan Notice and executed by the Company for the benefit of the
Administrative Agent and the Lenders (as amended, restated, supplemented or modified, the
“Indemnification Side Letter”), pursuant to which it will be understood and agreed
that if the Effective Date has not occurred prior to the date specified for the applicable
Committed Borrowing in such Committed Loan Notice, such Committed Loan Notice shall be
cancelled, the Administrative Agent and the Lenders shall have no obligation to fund any
amounts requested under such Committed Loan Notice and the Company shall indemnify the
Administrative Agent and the Lenders under Section 3.05 of the Credit Agreement as
if such Committed Loan Notice were submitted on behalf of the Company; and




          (viii) the Administrative Agent shall have received such other instruments, documents
and certificates as the Administrative Agent shall reasonably request in connection with the
execution of this Agreement.



          (b) For purposes of determining compliance with the conditions specified in this Section
6, each Lender that has executed this Agreement and delivered it to the Administrative Agent
shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document
or other matter either sent, or made available for inspection, by the Administrative Agent to such
Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to such Lender.




4









 








          (c) From and after the Effective Date, the Credit Agreement is amended as set forth herein.
Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in
full force and effect and is hereby ratified and confirmed in all respects.




          (d) The Administrative Agent will notify the Borrowers and the Lenders of the occurrence of
the Effective Date.




     7. Miscellaneous.



          (a) Except as herein expressly amended, all terms, covenants and provisions of the Credit
Agreement are and shall remain in full force and effect and all references therein to such Credit
Agreement shall henceforth refer to the Credit Agreement as amended by this Agreement. This
Agreement shall be deemed incorporated into, and a part of, the Credit Agreement.




          (b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and
thereto and their respective successors and assigns. No third party beneficiaries are intended in
connection with this Agreement.




          (c) THIS AGREEMENT IS SUBJECT TO THE PROVISIONS OF SECTIONS 11.14 AND 11.15 OF
THE CREDIT AGREEMENT (AS AMENDED HEREBY) RELATING TO GOVERNING LAW, VENUE AND WAIVER OF RIGHT TO
TRIAL BY JURY, THE PROVISIONS OF WHICH ARE BY THIS REFERENCE INCORPORATED HEREIN IN FULL.




          (d) This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all such counterparts together shall constitute but one and the same
instrument. Each of the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party hereto or thereto either in the form of an
executed original or an executed original sent by facsimile transmission to be followed promptly by
mailing of a hard copy original, and the receipt by the Administrative Agent of a facsimile
transmitted document purportedly bearing the signature of a Lender or the Borrowers shall bind such
Lender or the Borrowers, respectively, with the same force and effect as the delivery of a hard
copy original. Any failure by the Administrative Agent to receive the hard copy executed original
of such document shall not diminish the binding effect of receipt of the facsimile transmitted
executed original of such document of the party whose hard copy page was not received by the
Administrative Agent.




          (e) This Agreement, together with the Credit Agreement, contains the entire and exclusive
agreement of the parties hereto with reference to the matters discussed herein and therein. This
Agreement supersedes all prior drafts and communications with respect thereto. This Agreement may
not be amended except in accordance with the provisions of Section 11.01 of the Credit
Agreement (as amended hereby).




5









 








          (f) If any term or provision of this Agreement shall be deemed prohibited by or invalid under
any applicable law, such provision shall be invalidated without affecting the remaining provisions
of this Agreement or the Credit Agreement, respectively.




          (g) The Borrowers covenant to pay to or reimburse the Administrative Agent, upon demand, for
all costs and expenses (including allocated costs of counsel) incurred in connection with the
development, preparation, negotiation, execution and delivery of this Agreement.




          (h) This Agreement shall constitute a “Loan Document” under and as defined in the Credit
Agreement.




          (i) Notwithstanding anything to the contrary contained herein or in the Credit Agreement,
subject to the terms of, and the receipt by the Administrative Agent of, the Indemnification Side
Letter, the Company shall be permitted to submit a Committed Loan Notice, on behalf of FME, prior
to the Effective Date.




[Remainder of this page intentionally left blank.]




6









 





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



	 	 	 	 	 	 	 
	 	 	IDEX CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	FLUID MANAGEMENT EUROPE B.V.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 





 IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement




 









 






	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 




IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement





 









 






	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender, Swing Line	 	 
	 	 	Lender and L/C Issuer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement





 









 






	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 





 Exhibit B





 









 






	 	 	 	 	 	 	 
	 	 	MIZUHO CORPORATE BANK, LTD., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 





 IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement




 









 






	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 




IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement





 









 






	 	 	 	 	 	 	 
	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 




IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement





 









 






	 	 	 	 	 	 	 
	 	 	BANK OF CHINA, NEW YORK BRANCH, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 




IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement





 









 






	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 





 IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement




 









 






	 	 	 	 	 	 	 
	 	 	BNP PARIBAS, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 





 IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement




 









 






	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK MELLON, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 





 IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement




 









 






	 	 	 	 	 	 	 
	 	 	BARCLAYS BANK PLC, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 





 IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement




 









 






	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 





IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement





 









 






	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A. , as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 





 IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement




 









 






	 	 	 	 	 	 	 
	 	 	NATIONAL CITY BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 




IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement





 









 






	 	 	 	 	 	 	 
	 	 	THE NORTHERN TRUST COMPANY, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 






 IDEX Corporation

Signature Pages

Amendment No.2 to Amended and Restated Credit Agreement




 











 





Published CUSIP Number: 45167SAA0




      




$600,000,000




AMENDED AND RESTATED

CREDIT AGREEMENT




Dated as of December 21, 2006

(as amended by that certain Amendment No. 1 dated as of April 10, 2008

and that certain Amendment No. 2 dated as of September ___, 2008)




among




IDEX CORPORATION,




as the Company




and




CERTAIN OF ITS SUBSIDIARIES,




as Designated Borrowers,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and

L/C Issuer,




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Syndication Agent




LASALLE BANK, N.A.,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., CHICAGO BRANCH,

and

MIZUHO CORPORATE BANK, LTD.,

as Co-Documentation Agents




and




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC

and

WACHOVIA CAPITAL MARKETS LLC,

as Lead Arrangers and Joint Book Managers




      





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	ARTICLE I	 	DEFINITIONS
	 	 	1	 
	 	1.01	 	 	Certain Defined Terms
	 	 	1	 
	 	1.02	 	 	Other Interpretive Provisions
	 	 	27	 
	 	1.03	 	 	Accounting Terms
	 	 	28	 
	 	1.04	 	 	Exchange Rates; Currency Equivalents
	 	 	28	 
	 	1.05	 	 	Additional Alternative Currencies
	 	 	29	 
	 	1.06	 	 	Change of Currency
	 	 	30	 
	 	1.07	 	 	Rounding
	 	 	30	 
	 	1.08	 	 	Times of Day
	 	 	30	 
	 	1.09	 	 	Letter of Credit Amounts
	 	 	30	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE II	 	THE CREDITS
	 	 	31	 
	 	2.01	 	 	Committed Loans
	 	 	31	 
	 	2.02	 	 	Borrowings, Conversions and Continuations of Committed Loans
	 	 	31	 
	 	2.03	 	 	Bid Loans
	 	 	33	 
	 	2.04	 	 	Letters of Credit
	 	 	36	 
	 	2.05	 	 	Swing Line Loans
	 	 	45	 
	 	2.06	 	 	Prepayments
	 	 	48	 
	 	2.07	 	 	Termination or Reduction of Commitments
	 	 	49	 
	 	2.08	 	 	Repayment of Loans
	 	 	50	 
	 	2.09	 	 	Interest
	 	 	50	 
	 	2.10	 	 	Fees
	 	 	51	 
	 	2.11	 	 	Computation of Interest and Fees
	 	 	52	 
	 	2.12	 	 	Evidence of Debt
	 	 	52	 
	 	2.13	 	 	Payments Generally; Administrative Agent’s Clawback
	 	 	52	 
	 	2.14	 	 	Sharing of Payments by Lenders
	 	 	54	 
	 	2.15	 	 	Increase in Commitments
	 	 	55	 
	 	2.16	 	 	Extension of Maturity Date
	 	 	56	 
	 	2.17	 	 	No Advisory or Fiduciary Responsibility
	 	 	58	 
	 	2.18	 	 	Designated Borrowers
	 	 	58	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE III	 	TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	60	 
	 	3.01	 	 	Taxes
	 	 	60	 
	 	3.02	 	 	Illegality
	 	 	63	 
	 	3.03	 	 	Inability to Determine Rates
	 	 	63	 
	 	3.04	 	 	Increased Costs
	 	 	64	 
	 	3.05	 	 	Compensation for Losses
	 	 	66	 
	 	3.06	 	 	Mitigation Obligations; Replacement of Lenders
	 	 	66	 
	 	3.07	 	 	Survival
	 	 	67	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE IV	 	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	67	 
	 	4.01	 	 	Conditions of Initial Credit Extensions
	 	 	67	 
	 	4.02	 	 	Conditions to All Credit Extensions
	 	 	68	 






i 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	ARTICLE V	 	REPRESENTATIONS AND WARRANTIES
	 	 	69	 
	 	5.01	 	 	Corporate Existence and Power
	 	 	69	 
	 	5.02	 	 	Corporate Authorization; No Contravention
	 	 	69	 
	 	5.03	 	 	Governmental Authorization
	 	 	70	 
	 	5.04	 	 	Binding Effect
	 	 	70	 
	 	5.05	 	 	Litigation
	 	 	70	 
	 	5.06	 	 	No Default
	 	 	70	 
	 	5.07	 	 	ERISA Compliance
	 	 	70	 
	 	5.08	 	 	Use of Proceeds; Margin Regulations
	 	 	71	 
	 	5.09	 	 	Title to Properties
	 	 	71	 
	 	5.10	 	 	Taxes
	 	 	71	 
	 	5.11	 	 	Financial Condition
	 	 	72	 
	 	5.12	 	 	Environmental Matters
	 	 	72	 
	 	5.13	 	 	Regulated Entities
	 	 	72	 
	 	5.14	 	 	Subsidiaries
	 	 	72	 
	 	5.15	 	 	Insurance
	 	 	73	 
	 	5.16	 	 	Swap Obligations
	 	 	73	 
	 	5.17	 	 	Full Disclosure
	 	 	73	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VI	 	AFFIRMATIVE COVENANTS
	 	 	73	 
	 	6.01	 	 	Financial Statements
	 	 	73	 
	 	6.02	 	 	Certificates; Other Information
	 	 	74	 
	 	6.03	 	 	Notices
	 	 	75	 
	 	6.04	 	 	Preservation
of Corporate Existence, Etc.
	 	 	75	 
	 	6.05	 	 	Maintenance of Property
	 	 	76	 
	 	6.06	 	 	Insurance
	 	 	76	 
	 	6.07	 	 	Payment of Tax Obligations
	 	 	76	 
	 	6.08	 	 	Compliance with Laws
	 	 	76	 
	 	6.09	 	 	Compliance with ERISA
	 	 	76	 
	 	6.10	 	 	Inspection of Property and Books and Records
	 	 	76	 
	 	6.11	 	 	Environmental Laws
	 	 	77	 
	 	6.12	 	 	Use of Proceeds
	 	 	77	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VII	 	NEGATIVE AND FINANCIAL COVENANTS
	 	 	77	 
	 	7.01	 	 	Limitation on Liens
	 	 	77	 
	 	7.02	 	 	Disposition of Assets
	 	 	79	 
	 	7.03	 	 	Consolidations and Mergers
	 	 	80	 
	 	7.04	 	 	Loans and Investments
	 	 	81	 
	 	7.05	 	 	Limitation on Indebtedness
	 	 	82	 
	 	7.06	 	 	Transactions with Affiliates
	 	 	82	 
	 	7.07	 	 	Contingent Obligations
	 	 	83	 
	 	7.08	 	 	Restricted Payments
	 	 	83	 
	 	7.09	 	 	ERISA
	 	 	84	 
	 	7.10	 	 	Change in Business
	 	 	84	 
	 	7.11	 	 	Accounting Changes
	 	 	84	 
	 	7.12	 	 	Modifications, etc. of Subordinated Debt and Related Documents
	 	 	84	 
	 	7.13	 	 	Sale-Leasebacks
	 	 	84	 






ii 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	7.14	 	 	No Negative Pledges; Subsidiary Payments
	 	 	84	 
	 	7.15	 	 	Financial Covenants
	 	 	85	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VIII	 	EVENTS OF DEFAULT
	 	 	85	 
	 	8.01	 	 	Event of Default
	 	 	85	 
	 	8.02	 	 	Remedies Upon Event of Default
	 	 	87	 
	 	8.03	 	 	Application of Funds
	 	 	88	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE IX	 	THE AGENT
	 	 	88	 
	 	9.01	 	 	Appointment and Authority
	 	 	88	 
	 	9.02	 	 	Rights as a Lender
	 	 	89	 
	 	9.03	 	 	Exculpatory Provisions
	 	 	89	 
	 	9.04	 	 	Reliance by Administrative Agent
	 	 	90	 
	 	9.05	 	 	Delegation of Duties
	 	 	90	 
	 	9.06	 	 	Resignation of Administrative Agent
	 	 	90	 
	 	9.07	 	 	Non-Reliance on Administrative Agent and Other Lenders
	 	 	91	 
	 	9.08	 	 	No Other
Duties, Etc.
	 	 	91	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE X	 	CONTINUING GUARANTY
	 	 	92	 
	 	10.01	 	 	Guaranty
	 	 	92	 
	 	10.02	 	 	Rights of Lenders
	 	 	92	 
	 	10.03	 	 	Certain Waivers
	 	 	92	 
	 	10.04	 	 	Obligations Independent
	 	 	93	 
	 	10.05	 	 	Subrogation
	 	 	93	 
	 	10.06	 	 	Termination; Reinstatement
	 	 	93	 
	 	10.07	 	 	Subordination
	 	 	93	 
	 	10.08	 	 	Stay of Acceleration
	 	 	94	 
	 	10.09	 	 	Condition of Designated Borrower
	 	 	94	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE XI	 	MISCELLANEOUS
	 	 	94	 
	 	11.01	 	 	Amendments,
Etc.
	 	 	94	 
	 	11.02	 	 	Notices; Effectiveness; Electronic Communication
	 	 	95	 
	 	11.03	 	 	No Waiver; Cumulative Remedies
	 	 	97	 
	 	11.04	 	 	Expenses; Indemnity; Damage Waiver
	 	 	97	 
	 	11.05	 	 	Payments Set Aside
	 	 	99	 
	 	11.06	 	 	Successors and Assigns
	 	 	99	 
	 	11.07	 	 	Treatment of Certain Information; Confidentiality
	 	 	103	 
	 	11.08	 	 	Right of Setoff
	 	 	104	 
	 	11.09	 	 	Interest Rate Limitation
	 	 	104	 
	 	11.10	 	 	Counterparts; Integration; Effectiveness
	 	 	104	 
	 	11.11	 	 	Survival of Representations and Warranties
	 	 	105	 
	 	11.12	 	 	Severability
	 	 	105	 
	 	11.13	 	 	Replacement of Lenders
	 	 	105	 
	 	11.14	 	 	Governing
Law; Jurisdiction; Etc.
	 	 	106	 
	 	11.15	 	 	Waiver of Jury Trial
	 	 	106	 
	 	11.16	 	 	USA PATRIOT Act Notice
	 	 	107	 
	 	11.17	 	 	Judgment Currency
	 	 	107	 
	 	11.18	 	 	Entire Agreement
	 	 	107	 






iii 









 






	 	 	 
	SCHEDULES
	 	 
	 
	 	 
	Schedule 1.01
	 	Mandatory Cost Formulae
	Schedule 2.01
	 	Commitments and Applicable Percentages
	Schedule 2.04
	 	Existing Letters of Credit
	Schedule 5.05
	 	Litigation
	Schedule 5.07
	 	ERISA Matters
	Schedule 5.11
	 	Permitted Liabilities
	Schedule 5.12
	 	Environmental Matters
	Schedule 5.14
	 	Subsidiaries and Minority Interests
	Schedule 5.15
	 	Insurance Matters
	Schedule 7.01
	 	Permitted Liens
	Schedule 7.04
	 	Permitted Investments
	Schedule 7.05
	 	Permitted Indebtedness
	Schedule 7.07
	 	Contingent Obligations
	Schedule 11.02
	 	Lending Offices; Addresses for Notices
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	Exhibit A
	 	Form of Committed Loan Notice
	Exhibit B-1
	 	Form of Bid Request
	Exhibit B-2
	 	Form of Competitive Bid
	Exhibit C
	 	Form of Swing Line Loan Notice
	Exhibit D
	 	Form of Note
	Exhibit E
	 	Form of Compliance Certificate
	Exhibit F
	 	Form of Assignment and Assumption
	Exhibit G
	 	Designated Borrower Request and Assumption Agreement
	Exhibit H
	 	Designated Borrower Notice







iv 









 








CREDIT AGREEMENT




     This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of December 21, 2006 (as amended
by that certain Amendment No.1 dated April 10, 2008 and that certain Amendment No. 2 dated
September [___], 2008) among IDEX CORPORATION, a Delaware corporation (the “Company”),
certain Subsidiaries of the Company from time to time party hereto pursuant to Section 2.18
(each a “Designated Borrower” and, together with the Company, the “Borrowers” and,
each a “Borrower”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.



     WHEREAS, the Company is a party to the Credit Agreement, dated as of December 14, 2004 (as
heretofore amended, amended and restated, supplemented or otherwise modified, the “Existing
Credit Agreement”), with the financial institutions party thereto as lenders (the “Existing
Lenders”) and, the Administrative Agent; and



     WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities existing under the Existing Credit Agreement and which remain
outstanding or evidence repayment of any of such obligations and liabilities and that this
Agreement amend and restate in its entirety the Existing Credit Agreement and re-evidence the
obligations of outstanding thereunder;



     NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, as
follows:



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



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



ARTICLE I

DEFINITIONS




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



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



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



     “Accounts Receivable” means presently existing and hereafter arising or acquired
accounts receivable, general intangibles, choses in action and other forms of obligations and
receivables relating in any way to Inventory or arising from the sale of Inventory or the rendering
of services or howsoever otherwise arising, and, with respect to any of the foregoing receivables



Page 1









 







or obligations, (a) all of the interest of the Company or any of its Subsidiaries in the goods
(including returned goods) the sale of which gave rise to such receivable or obligation after the
passage of title thereto to any obligor, (b) all other Liens and property subject thereto from time
to time purporting to secure payment of such receivables or obligations, (c) all guarantees,
insurance, letters of credit and other agreements or arrangements of whatever character from time
to time supporting or securing payment of any such receivables or obligations, (d) all interests of
the Receivables Subsidiary under the documents evidencing a Permitted Receivables Purchase Facility
and any permitted performance guaranty given in connection therewith, and (e) all records relating
to any of the foregoing and all proceeds and products of any of the foregoing.



     “Acquisition” means any transaction or series of related transactions for the purpose
of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the
assets of a Person, or of any business or division of a Person or (b) the acquisition of in excess
of 50% of the capital stock, partnership interests, membership interests or equity of any Person,
or otherwise causing any Person to become a Subsidiary.



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



     “Administrative Agent’s Office” means, with respect to any currency, the
Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02
with respect to such currency, or such other address or account with respect to such currency as
the Administrative Agent may from time to time notify to the Company and the Lenders.



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



     “Affiliate” means, with respect to any 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.



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



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



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



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



Page 2









 






     “Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $300,000,000. The Alternative Currency Sublimit is part of, and not in addition
to, the Aggregate Commitments.



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



     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Debt Rating as set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 
	 	 	 	 	 	 	 	 	 	 	Eurocurrency	 	 
	 	 	 	 	 	 	 	 	 	 	Rate +	 	 
	Pricing	 	Debt Ratings	 	 	 	 	 	Letters of	 	Base Rate
	Level	 	S&P/Moody’s/Fitch	 	Facility Fee	 	Credit	 	+
	1
	 	A/A2/A or better	 	 	6.0	 	 	 	24.0	 	 	 	0	 
	2
	 	 	A-/A3/A-	 	 	 	7.0	 	 	 	28.0	 	 	 	0	 
	3
	 	BBB+/Baa1/BBB+	 	 	8.0	 	 	 	32.0	 	 	 	0	 
	4
	 	BBB/Baa2/BBB	 	 	10.0	 	 	 	40.0	 	 	 	0	 
	5
	 	BBB-/Baa3/BBB- or worse	 	 	12.5	 	 	 	50.0	 	 	 	0	 







     “Debt Rating” means, as of any date of determination, the rating as determined
by S&P, Moody’s and Fitch (collectively, the “Debt Ratings”) of the Company’s
non-credit-enhanced, senior unsecured long-term debt; provided, that, if the Debt Ratings
fall within different levels: (a) if only two Rating Agencies provide a rating, (i) if one
rating is one level higher than the other rating, the Applicable Rate will be based on the
higher Debt Rating (with the Debt Rating for Pricing Level 1 being the highest and the Debt
Rating for Pricing Level 5 being the lowest) and (ii) otherwise, the Applicable Rate will be
based on the rating that is one level lower than the higher rating and (b) otherwise, (i) if
two of the Debt Ratings are at the same level, the Applicable Rate will be based on such
level and (ii) if each of the three ratings fall within different levels, then the
Applicable Rate will be based on the Debt Rating that is in between the highest and lowest
rating.



Page 3









 




Initially, the Applicable Rate shall be determined based upon the Debt Ratings specified in the
certificate delivered pursuant to Section 4.01(f)(iv). Thereafter, each change in the
Applicable Rate resulting from a publicly announced change in any Debt Rating shall be effective,
in the case of an upgrade, during the period commencing on the date of delivery by the Company to
the Administrative Agent of notice thereof pursuant to Section 6.03(e) and ending on the
date immediately preceding the effective date of the next such change and, in the case of a
downgrade, during the period commencing on the date of the public announcement thereof and ending
on the date immediately preceding the effective date of the next such change.




     “Applicable Designee” means any Affiliate of a Lender designated in writing from time
to time to the Administrative Agent with the consent of the Administrative Agent (which such
consent shall not be unreasonably withheld or delayed) to fund all or any portion of such Lender’s
share of a Committed Borrowing under this Agreement.



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



     “Applicant Borrower” has the meaning specified in Section 2.18.



     “Arrangers” means Banc of America Securities LLC and Wachovia Capital Markets, LLC, in
their capacities as lead arrangers.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit F or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, without duplication, on any date, (a) in respect of
any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Off
Balance Sheet Obligation which is a lease, the capitalized amount of the remaining lease payments
under the relevant lease that would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP if such lease were accounted for as a capital lease, (c) in respect of
any Permitted Receivables Purchase Facility, the amount of Receivables Facility Attributed
Indebtedness and (d) in respect of any other Off Balance Sheet Obligation, the amount of such
Obligations which would reasonably be expected to be characterized as indebtedness upon the
insolvency or bankruptcy of such Person.



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



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



Page 4









 





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



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



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



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



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



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



     “Bid Loan Sublimit” means an amount equal to $50,000,000. The Bid Loan Sublimit is
part of, and not in addition to, the Aggregate Commitments.



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



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



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



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




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



Page 5









 






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




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




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



     “Canadian Dollar” means the lawful currency of Canada.



     “Capital Lease” has the meaning specified in the definition of “Capital Lease
Obligations.”



     “Capital Lease Obligations” means the principal component of all monetary obligations
of the Company or any of its Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, is classified as a capital lease (“Capital Lease”).



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



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



     “Change of Control” means any of the following: (a) any person or group of persons
(within the meaning of the Exchange Act) shall have acquired beneficial ownership (within the
meaning of Rule 13d promulgated by the SEC under the Exchange Act) of 30% or more of the issued and
outstanding shares of the Company’s capital stock having the right to vote for the election of
directors of the Company under ordinary circumstances; (b) during any period of twelve consecutive
calendar months, individuals who at the beginning of such period constituted the Company’s board of
directors (together with any new directors whose election by the Company’s board of directors or
whose nomination for election by the Company’s stockholders was approved by a vote of a majority of
the directors then still in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for any reason other
than death or disability to constitute a majority of the



Page 6









 







directors then in office; or (c) the Company shall cease to own directly or indirectly, all of
the issued and outstanding shares (exclusive of nominal director qualifying shares, to the extent
applicable) of each Designated Borrower’s capital stock having the right to vote for the election
of the applicable Designated Borrower’s board of directors (or equivalent governing body).



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 11.01.



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



     “Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrowers pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.



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



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



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



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



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



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



     “Consolidated Debt” means, as of any date of determination, for the Company and its
Subsidiaries, the sum, without duplication, of (a) all Indebtedness of the Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP, (b) Attributable
Indebtedness of the Company and its Subsidiaries in respect of Capital Leases, Off Balance Sheet
Obligations and a Permitted Receivables Purchase Facility, and (c) all Guaranty Obligations with
respect to debt of the types specified in subsections (a) and (b) above of Persons other than the
Company or any Subsidiary.



     “Consolidated Interest Expense” means, for any period, the sum, without duplication,
of total interest expense (including that attributable to Capital Leases in accordance with GAAP)
of the Company and its Subsidiaries on a consolidated basis with respect to all outstanding



Page 7









 







Indebtedness of the Company and its Subsidiaries, including, without limitation, all
commissions, discounts and other fees and charges owed with respect to letters of credit and
bankers’ acceptance financing, but excluding, however, any amortization of deferred financing
costs, all as determined on a consolidated basis for the Company and its consolidated Subsidiaries
in accordance with GAAP plus the interest component of Off Balance Sheet Obligations. Any
calculation of pro forma Consolidated Interest Expense with respect to an Acquisition shall be done
on the basis that (A) any Indebtedness incurred or assumed in connection with such Acquisition was
incurred or assumed at the beginning of the pro forma period, (B) such Indebtedness was repaid from
operating cash flow over the pro forma period at the intervals and in the amounts reasonably
projected to be paid in respect of such Indebtedness over the 12-month period immediately following
the Acquisition and (C) if such Indebtedness bears a floating interest rate, such interest shall be
paid over the pro forma period at the rate in effect on the date of such Acquisition.



     “Consolidated Net Income” and “Consolidated Net Loss” mean, respectively, with respect
to any period for any Person, the aggregate of the net income (loss) of such Person for such
period, determined in accordance with GAAP on a consolidated basis, provided that the net income
(loss) of any other Person which is not a Subsidiary shall be included in the Consolidated Net
Income of such Person only to the extent of the amount of cash dividends or distributions paid to
such Person or to a consolidated Subsidiary of such Person. There shall be excluded from
Consolidated Net Income (a) non-cash extraordinary losses as long as no reserve is required to be
established in accordance with GAAP and (b) the excess (but not the deficit), if any, of (i) any
gain which must be treated as an extraordinary item under GAAP or any gain realized upon the sale
or other disposition of any real property or equipment that is not sold in the ordinary course of
business or of any capital stock of a Subsidiary of such Person over (ii) any loss which is not
excluded pursuant to subsection (a) above.



     “Consolidated Net Worth” means, as of any date of determination, for the Company and
its Subsidiaries on a consolidated basis, shareholders’ equity as of that date determined in
accordance with GAAP.



     “Consolidated Total Assets” means the total assets of the Company and its Subsidiaries
determined in accordance with GAAP.



     “Contingent Obligation” means, as to any Person, any direct or indirect liability of
that Person, whether or not contingent, with or without recourse, (a) with respect to any
Indebtedness, lease, dividend, letter of credit or other obligation (the “primary obligations”) of
another Person (the “primary obligor”), including any obligation of that Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any security therefor, (ii) to advance
or provide funds for the payment or discharge of any such primary obligation, or to maintain
working capital or equity capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of the primary obligor,
(iii) to purchase property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation, or (iv) otherwise to assure or hold harmless the holder of any such primary
obligation against loss in respect thereof (each, a “Guaranty Obligation”); (b) with
respect to any Surety Instrument issued for the account of that Person or as to which that Person
is otherwise liable for



Page 8









 







reimbursement of drawings or payments; (c) to purchase any materials, supplies or other
property from, or to obtain the services of, another Person if the relevant contract or other
related document or obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever performed or
tendered, or (d) in respect of any Swap Contract. The amount of any Contingent Obligation shall
(a) in the case of Guaranty Obligations, be deemed equal to the stated or determinable amount of
the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof provided, that if
any Guaranty Obligation (i) is limited to an amount less than the obligations guaranteed or
supported the amount of the corresponding Contingent Obligation shall be equal to the lesser of the
amount determined pursuant to the initial clause of this sentence and the amount to which such
guaranty is so limited or (ii) is limited to recourse against a particular asset or assets of such
Person the amount of the corresponding Contingent Obligation shall be equal to the lesser of the
amount determined pursuant to the initial clause of this sentence and the fair market value of such
asset or assets at the date for determination of the amount of the Contingent Obligation, (b) in
the case of other Contingent Obligations other than in respect of Swap Contracts, be equal to the
maximum reasonably anticipated liability in respect thereof, and (c) in the case of Contingent
Obligations in respect of Swap Contracts, be equal to the Swap Termination Value.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or
other instrument, document or agreement 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 Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



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



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if
any, applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a



Page 9









 







Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan
plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to
the Applicable Rate plus 2% per annum.



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



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



     “Designated Borrower Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $100,000,000. The Designated Borrower Sublimit is part of, and not in addition to,
the Aggregate Commitments.



     “Designated Borrower Notice” has the meaning specified in Section 2.18.



     “Designated Borrower Request and Assumption Agreement” has the meaning specified in
Section 2.18.



     “Disposition” has the meaning specified in Section 7.02.



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



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



     “Domestic Subsidiary” means any Subsidiary of the Company that is not a Foreign
Subsidiary.



     “EBIT” means, for any period, for the Company and its Subsidiaries on a consolidated
basis, determined in accordance with GAAP, the sum of (a) Consolidated Net Income for such period
plus (b) all amounts treated as expenses for interest plus (c) all accrued taxes
plus (d) the interest component with respect to Off Balance Sheet Obligations, in each case
to the extent included in the determination of such Consolidated Net Income.



     “EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated
basis, determined in accordance with GAAP, the sum of (a) EBIT plus (b) all amounts treated
as expenses for depreciation or the amortization of intangibles of any kind to the



Page 10









 







extent included in the determination of Consolidated Net Income, provided that in the event of
the occurrence of any Acquisition or Disposition during such period, EBITDA shall be calculated on
a pro forma basis as if such Acquisition or Disposition occurred on the first day of the relevant
period such that, in the case of an Acquisition, all income and expense associated with the assets
or entity acquired in connection with such Acquisition for the most recently ended four fiscal
quarter period for which such income and expense amounts are available shall be treated as earned
or incurred by the Company over the applicable period and, in the case of a Disposition, all income
and expense associated with the assets or entity sold or transferred during such period shall be
eliminated over the applicable period.



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; and (c) any
other Person (other than a natural person) approved by (i) the Administrative Agent, the L/C Issuer
and the Swing Line Lender, and (ii) unless an Event of Default under Section 8.01(f)
or 8.01(g) has occurred and is continuing, or an Event of Default under Section
8.01(a) has occurred and is continuing for 20 days or more, the Company (each such approval not
to be unreasonably withheld or delayed); provided that, notwithstanding the foregoing, (x)
any assignment to a Person that is not a commercial bank shall not become effective without the
consent of the Company if, after giving effect thereto, such Person and its Affiliates would
collectively hold more than 20% of the Total Outstandings, (y) “Eligible Assignee” shall not
include the Company or any of the Company’s Affiliates or Subsidiaries; and (z) prior to
termination of the Commitments, an Eligible Assignee shall include only a Lender, an Affiliate of a
Lender or another Person, which, through its Lending Offices, is capable of lending the applicable
Alternative Currencies to the Borrowers without the imposition of any Taxes or additional Taxes, as
the case may be. The Company’s withholding of consent to an assignment, to the extent its consent
is required above, shall not be deemed unreasonable if the assignee is not a commercial bank,
savings and loan association or savings bank having a combined capital and surplus of $200,000,000.



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



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



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



     “Environmental Laws” means all federal, state or local laws, statutes, common law
duties, rules, regulations, ordinances and codes, together with all administrative orders, directed
duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, health, safety and land use matters.



     “ERISA” means the Employee Retirement Income Security Act of 1974, and all rules and
regulations promulgated thereunder.



Page 11









 






     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Company within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Company or any ERISA Affiliate.



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



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



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



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



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



	 	 	 	 	 
	 	Eurocurrency Rate =

	 	Eurocurrency Base Rate	 
	 
	 	 	 
	
	 	1.00 – Eurocurrency Reserve Percentage	 






Where,





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




     (a) the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from



Page 12









 







time to time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for deposits in the relevant currency (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest Period; or




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




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




     (d) additionally, the Eurocurrency Base Rate for the initial Interest Period with
respect to the initial Committed Borrowing shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the first
day of such Interest Period in Same Day Funds in the approximate amount of the Eurocurrency
Rate Committed Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s Grand Cayman
Banking Center, Grand Cayman, British West Indies, to major banks in the offshore interbank
market for Dollars on the first Business Day of such Interest Period.




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



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



Page 13









 





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



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



     “Exchange Act” means the Securities Exchange Act of 1934, and regulations promulgated
thereunder, in each case, as amended from time to time.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of any
Borrower hereunder, except as otherwise provided herein, (a) taxes imposed on or measured by its
net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes),
by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient
is organized or in which its principal office is located or, in the case of any Lender, in which
such Lender maintains a lending office, (b) any branch profits taxes imposed by the United States
or any similar tax imposed by any other jurisdiction in which such Borrower is located, and (c) in
the case of a Lender (other than an assignee pursuant to a request by the Company under Section
11.13), any withholding tax that is imposed on amounts payable to such Lender at the time such
Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such
Lender’s failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from such Borrower with respect to such withholding tax pursuant to Section
3.01(a). Notwithstanding anything to the contrary contained in this definition, “Excluded
Taxes” shall not include any withholding taxes imposed at any time on payments made by or on behalf
of a Foreign Obligor to any Lender hereunder or under any other Loan Document, provided that such
Lender shall have complied with Section 3.01(e).



     “Existing Credit Agreement” has the meaning specified in the recitals hereto.



     “Existing Lenders” shall have the meaning assigned to such term in the preamble
hereto.



     “Existing Letters of Credit” has the meaning specified in Section 2.04(a)(i).



     “Exiting Lenders” shall mean each of the Existing Lenders which is not a Lender under
this Agreement.



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



Page 14









 





     “Fee Letter” means the letter agreement, dated as of November 22, 2006, among the
Company, the Administrative Agent, Banc of America Securities LLC and Wachovia Bank, National
Association and Wachovia Capital Markets, LLC.



     “Fitch” means Fitch Ratings Ltd. or any successor thereto.



     “Foreign Lender” means any Lender that is not a U.S. person within the meaning of
Section 7701(a)(30) of the Code.



     “Foreign Obligor” means a Borrower that is a Foreign Subsidiary.



     “Foreign Subsidiary” means any Subsidiary of the Company that (a) is incorporated
under the laws of a jurisdiction other than any State of the U.S., the District of Columbia or any
territory, commonwealth or possession of the U.S. and (b) maintains the major portion of its assets
outside the U.S.



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



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



     “GAAP” means generally accepted accounting principles set forth from time to time in
the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of (a) in the case of any
computation pursuant to Section 7.15, the date of this Agreement and (b) in all other
cases, the applicable date.



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



     “Granting Lender” has the meaning specified in Section 11.06(h).



     “Guaranty” means the guaranty made by the Company under Article X in favor of
the Administrative Agent and the Lenders.



     “Guaranty Obligation” has the meaning specified in the definition of “Contingent
Obligation.”



     “Indebtedness” of any Person means, without duplication, (a) all indebtedness for
borrowed money; (b) all obligations issued, undertaken or assumed as the deferred purchase



Page 15









 







price of property or services (other than trade payables entered into in the ordinary course
of business on ordinary terms); (c) all non-contingent reimbursement or payment obligations with
respect to Surety Instruments; (d) all obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection with the acquisition of
property, assets or businesses; (e) all indebtedness created or arising under any conditional sale
or other title retention agreement, or incurred as financing, in either case with respect to
property acquired by the Person (even though the rights and remedies of the seller or bank under
such agreement in the event of default are limited to repossession or sale of such property); (f)
all Capital Lease Obligations and Off Balance Sheet Obligations including all Receivables Facility
Attributed Indebtedness; (g) all indebtedness referred to in subsections (a) through (f) above
secured by (or for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including accounts and contracts rights)
owned by such Person, even though such Person has not assumed or become liable for the payment of
such Indebtedness; and (h) all Guaranty Obligations in respect of indebtedness or obligations of
others of the kinds referred to in subsections (a) through (g) above. In the event any of the
foregoing Indebtedness is limited to recourse against a particular asset or assets of such Person,
the amount of the corresponding Indebtedness shall be equal to the lesser of the amount of such
Indebtedness and the fair market value of such asset or assets at the date for determination of the
amount of such Indebtedness. In addition, the amount of any Indebtedness which is also a
Contingent Obligation shall be determined as provided in the definition of “Contingent Obligation.”



     For all purposes of this Agreement, the Indebtedness of any Person shall include all
Indebtedness of any partnership or Joint Venture or limited liability company in which such Person
is a general partner or a joint venturer or a member, but in any such case, only to the extent any
such Indebtedness is recourse to such Person. The amount of any Capital Lease or Off Balance Sheet
Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnified Person” has the meaning specified in Section 11.04(b).



     “Independent Auditor” has the meaning specified in Section 6.01(a).



     “Insolvency Proceeding” means, with respect to any Person, (a) any case, action or
proceeding with respect to such Person before any court or other Governmental Authority relating to
Debtor Relief Laws or (b) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors, undertaken under Debtor Relief Laws.



     “Intercompany Indebtedness” means Indebtedness of the Company or any of its
Subsidiaries which, in the case of the Company, is owing to any Subsidiary of the Company and
which, in the case of any Subsidiary, is owing to the Company or any of the Company’s other
Subsidiaries.



Page 16









 





     “Interest Coverage Ratio” means, as of any date of determination, the ratio of EBITDA
for the period of the four prior fiscal quarters ending on or immediately prior to such date to
Consolidated Interest Expense for such period.



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



     “Interest Period” means (a) as to each Eurocurrency Rate Loan, the period commencing
on the date such Eurocurrency Rate Loan is disbursed or (in the case of any Eurocurrency Rate
Committed Loan) converted to or continued as a Eurocurrency Rate Loan and ending on the date one,
two, three or six months thereafter, as selected by the Company in its Committed Loan Notice or Bid
Request, as the case may be, or, in the case of Eurocurrency Rate Committed Loans, nine or twelve
months if requested by the Company and consented to by all the Lenders; and (b) as to each Absolute
Rate Loan, a period of not less than 7 days and not more than 183 days as selected by the Company
in its Bid Request; provided that:




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




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




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



     “Inventory” means, inclusively, all inventory as defined in the Uniform Commercial
Code in effect in the State of Illinois from time to time and all goods, merchandise and other
personal property wherever located, now owned or hereafter acquired by the Company or any of its
Subsidiaries of every kind or description which are held for sale or lease or are furnished or to
be furnished under a contract of service or are raw materials, work-in-process or materials used or
consumed or to be used or consumed in the Company’s or any of its Subsidiaries’ business.



     “Investments” has the meaning specified in Section 7.04.



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



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



Page 17









 





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



     “Joint Venture” means a single-purpose corporation, partnership, limited liability
company, joint venture or other similar legal arrangement (whether created by contract or conducted
through a separate legal entity) now or hereafter formed by the Company or any of its Subsidiaries
with another Person in order to conduct a common venture or enterprise with such Person.



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



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



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



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



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



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



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender; provided that solely for purposes of
funding a Committed Borrowing to a Designated Borrower each reference to a Lender shall be deemed
to include such Lender’s Applicable Designee. Notwithstanding the designation by any Lender of an
Applicable Designee, the Borrowers and the Administrative Agent shall be permitted to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement.



Page 18









 





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



     “Letter of Credit” means any letter of credit issued hereunder and shall include the
Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby
letter of credit. Letter of Credit may be issued in Dollars or in an Alternative Currency.



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



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



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



     “Letter of Credit Sublimit” means an amount equal to $50,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “Leverage Ratio” means, as of any date of determination, for the Company and its
Subsidiaries, the ratio of (a) Consolidated Debt as of such date to (b) EBITDA for the period of
the four fiscal quarters ending on or immediately prior to such date.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing), but, in any such case, not including the interest of a
lessor under an operating lease which does not constitute Off Balance Sheet Obligations or the
interest of a purchaser of Accounts Receivable under any Permitted Receivables Purchase Facility.



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



     “Loan Documents” means this Agreement, each Designated Borrower Request and Assumption
Agreement, each Note, each Issuer Document and the Fee Letter.



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



     “Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of
the FRB.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, or financial condition of the Company
and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Company and
its



Page 19









 







Subsidiaries to perform under any material Loan Document; or (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against the Company or any Subsidiary
of any material Loan Document.



     “Material Subsidiary” means, at any time, any Subsidiary having at such time total
assets, as of the last day of the preceding fiscal quarter, having a net book value in excess of
10% of Consolidated Total Assets, based upon the Company’s most recent annual or quarterly
financial statements delivered to the Administrative Agent under Section 6.01.



     “Maturity Date” means December 21, 2011, provided that, if such date is not a Business
Day, the Maturity Date shall be the next preceding Business Day, subject to extension (in the case
of each Lender consenting thereto) as provided in Section 2.16.



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



     “Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes, is making, or is
obligated to make contributions or, during the preceding three calendar years, has made, or been
obligated to make, contributions.



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



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Borrower arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Borrower or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.



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



     “Off Balance Sheet Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment), or (c) Attributable
Indebtedness and other obligations in respect of a Permitted Receivables Purchase Facility. The
interest component of Off Balance Sheet Obligations shall mean in the case of a lease, those
monetary obligations which would, in accordance with GAAP, be treated as interest if such lease was
a Capital Lease, and in all other cases shall be the amount which would be characterized as
interest upon the insolvency or bankruptcy of such Person (assuming, for purposes of any Permitted
Receivables Purchase Facility, that such sale does not constitute a true sale).



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



Page 20









 







resolutions of the board of directors (or any committee thereof) of such corporation (or the
equivalents thereof in the case of a Designated Borrower); (b) with respect to any limited
liability company, the certificate or articles of formation or organization and operating agreement
(or the equivalents thereof in the case of a Designated Borrower); and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the partnership, joint venture
or other applicable agreement of formation or organization and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity (or the
equivalents thereof in the case of a Designated Borrower).



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



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



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



     “Participant” has the meaning specified in Section 11.06(d).



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



     “Participating Subsidiary” means any Subsidiary of the Company that is a participant
in any Permitted Receivables Purchase Facility.



     “PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental Authority
succeeding to any of its principal functions under ERISA.



Page 21









 





     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.



     “Permitted Acquisition” means any Acquisition by the Company or a Subsidiary of the
Company if all of the following conditions are met:




     (a) no Default or Event of Default has occurred and is continuing or would result
therefrom; and




     (b) the prior, effective written consent or approval of such Acquisition by the board
of directors or equivalent governing body of the acquiree is obtained.



     “Permitted Liens” has the meaning specified in Section 7.01.



     “Permitted Receivables Purchase Facility” means any receivables financing program
providing for the sale or contribution of Accounts Receivable by the Company and its Participating
Subsidiaries directly or indirectly to the Receivables Subsidiary in transactions purporting to be
sales (and treated as sales for GAAP purposes), which Receivables Subsidiary shall finance the
purchase of such Accounts Receivable by the sale, transfer, conveyance, lien or pledge of such
Accounts Receivable to one or more limited purpose financing companies, special purpose entities
and/or other financial institutions, in each case, on a basis that does not provide, directly or
indirectly, for recourse against the seller of such Accounts Receivable (or against any of such
seller’s Affiliates other than the Receivables Subsidiary) by way of a guaranty or any other
support arrangement, with respect to the amount of such Accounts Receivable (based on the financial
condition or circumstances of the obligor thereunder), other than such limited recourse as is
reasonable given market standards for transactions of a similar type, taking into account such
factors as historical bad debt loss experience and obligor concentration levels; provided that any
such transaction described in the foregoing clause shall be consummated pursuant to documentation
in form and substance reasonably satisfactory to Agent, as evidenced by its written approval
thereof.



     “Permitted Swap Obligations” means all obligations (contingent or otherwise) of the
Company or any Subsidiary existing or arising under Swap Contracts, provided that each of the
following criteria is satisfied: (a) such obligations are (or were) entered into by such Person in
the ordinary course of business for the purpose of directly mitigating risks associated with
liabilities, commitments or assets held or reasonably anticipated by such Person, or changes in the
value of securities issued by such Person in conjunction with a securities repurchase program not
otherwise prohibited hereunder, and not for purposes of speculation or taking a “market view;” and
(b) such Swap Contracts do not contain any provision (“walk-away” provision) exonerating the
non-defaulting party from its obligation to make payments on outstanding transactions to the
defaulting party.




Page 22











 





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



     “Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which the
Company or an ERISA Affiliate sponsors or maintains or to which the Company or an ERISA Affiliate
makes, is making, or is obligated to make contributions and includes any Pension Plan.



     “Rating Agency” shall mean Moody’s, Standard & Poor’s or Fitch, as applicable.



     “Receivables Facility Attributed Indebtedness” at any time shall mean the aggregate
net outstanding amount theretofore paid to the Receivables Subsidiary in respect of the Accounts
Receivable sold or transferred by it in connection with a Permitted Receivables Purchase Facility
(it being the intent of the parties that the amount of Receivables Facility Attributed Indebtedness
at any time outstanding approximate as closely as possible the principal amount of Indebtedness
which would be outstanding at such time under such Permitted Receivables Purchase Facility if the
same were structured as a secured lending agreement rather than a purchase agreement).



     “Receivables Subsidiary” means IDEX Receivables Corporation and any other special
purpose, bankruptcy remote Wholly-Owned Subsidiary of the Company which may be formed for the sole
and exclusive purpose of engaging in activities in connection with the purchase, sale and financing
of Accounts Receivable in connection with and pursuant to a Permitted Receivables Purchase
Facility.



     “Refinancing Indebtedness” means Indebtedness incurred to refinance other Indebtedness
as long as such refinancing does not (i) result in an increase in the total principal amount
thereof by an amount in excess of accrued interest, call premiums and expenses incurred in
connection with such refinancing or (ii) create Indebtedness with a weighted average life to
maturity that is less than the weighted average life to maturity of the Indebtedness being
refinanced or shorten the final maturity of the Indebtedness being refinanced, provided that if
such Indebtedness being refinanced is Indebtedness of the Company, then such Refinancing
Indebtedness shall be Indebtedness solely of the Company.



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



     “Reportable Event” means, any of the events set forth in Section 4043(c) of ERISA or
the regulations thereunder, other than any such event for which the 30-day notice requirement under
ERISA has been waived in regulations issued by the PBGC.



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



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to



Page 23









 




Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.




     “Requirement of Law” means, as to any Person, any law (statutory or common), treaty,
rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case
applicable to or binding upon the Person or any of its property or to which the Person or any of
its property is subject.



     “Responsible Officer” means the chief executive officer, the chief operating officer,
the president, the chief financial officer, the controller or the treasurer of the Company or the
applicable Designated Borrower, as applicable, or any other officer having substantially the same
authority and responsibility, including any management board member in the case of any Designated
Borrower organized under the laws of the Netherlands.



     “Restatement Date” the date on which all of the conditions precedent set forth in
Section 4.01 shall have been satisfied or waived, which date is December 21, 2006.



     “Restricted Payment” has the meaning specified in Section 7.08.



     “Revaluation Date” means (a) with respect to any Loan, each of the following: (i)
each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii)
each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency
pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall
determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each
of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative
Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of
increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any
payment by the L/C Issuer under any Letter of Credit denominated in an Alternative Currency, (iv)
in the case of the Existing Letters of Credit, the Closing Date, and (v) such additional dates as
the Administrative Agent or the L/C Issuer shall determine or the Required Lenders shall require.



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



     “Sale and Leaseback Transaction” means any arrangement, directly or indirectly,
whereby a seller or transferor shall sell or otherwise transfer any real or personal property and
then or thereafter lease, or repurchase under an extended purchase contract, conditional sales or
other title retention agreement, the same or similar property.



     “Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Administrative Agent or the L/C
Issuer, as the case may be, to be customary in the place of disbursement or



Page 24









 







payment for the settlement of international banking transactions in the relevant Alternative
Currency.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “SPC” has the meaning specified in Section 11.06(h).



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



     “Spot Rate” for a currency means the rate determined by the Administrative Agent or
the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the
spot rate for the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days
prior to the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution
designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does
not have as of the date of determination a spot buying rate for any such currency; and
provided further that the L/C Issuer may use such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of any Letter of Credit denominated
in an Alternative Currency.



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



     “Subordinated Debt” shall mean all unsecured Indebtedness of a Borrower for money
borrowed which is subordinated in form and substance to the Obligations, and which has terms of
payment, covenants and remedies, all satisfactory to the Required Lenders as evidenced by their
written approval thereof.



     “Subsidiary” of a Person means any corporation, association, partnership, limited
liability company, joint venture or other business entity of which more than 50% of the securities,
membership interests or other equity interests having ordinary voting power for the election of
directors or other governing body are at the time beneficially owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or a combination
thereof. Unless the context otherwise clearly requires, references herein to a “Subsidiary” refer
to a Subsidiary of the Company and shall include each Borrower other than the Company.



     “Surety Instruments” means all letters of credit (including standby and commercial),
banker’s acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.



     “Swap Contract” means any agreement, whether or not in writing, relating to any
transaction that is a rate swap, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap or option, bond, note or bill option, interest rate option,
forward foreign exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar transaction (including
any option to enter into any of the foregoing) or any combination of the foregoing, and, unless



Page 25









 







the context otherwise clearly requires, any master agreement relating to or governing any or
all of the foregoing.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in subsection (a) the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined by the Company based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include any Lender).



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



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



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



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



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



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



     “Swiss Franc” means the lawful currency of Switzerland.



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



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other similar charges imposed by any Governmental Authority,
including any interest, additions to tax or penalties applicable thereto not attributable to the
gross negligence or willful misconduct of the Lender or Administrative Agent, as applicable.



     “Term Loan Credit Agreement” means that certain Credit Agreement dated as of April 18,
2008 by and among the Company, each lender from time to time party thereto and Bank of America,
N.A., as administrative agent (as amended, restated, supplemented or otherwise modified).



Page 26









 





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



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



     “Unfunded Pension Liability” means the excess of a Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the
Code for the applicable plan year.



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



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



     “Wholly-Owned Subsidiary” means any corporation in which (other than directors’
qualifying shares required by law) 100% of the capital stock of each class having ordinary voting
power, and 100% of the capital stock of every other class, in each case, at the time as of which
any determination is being made, is owned, beneficially and of record, by the Company, or by one or
more of the other Wholly-Owned Subsidiaries, or both.



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



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



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



Page 27









 







refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.



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



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



     1.03 Accounting Terms.



     (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Company’s audited financial statements, except as
otherwise specifically prescribed herein.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Company or the
Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (ii) in the event of any request to negotiate to amend
pursuant to this Section, the Company shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.



     1.04 Exchange Rates; Currency Equivalents.



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



     (b) Wherever in this Agreement in connection with a Committed Borrowing, conversion,
continuation or prepayment of a Eurocurrency Rate Loan or the issuance,



Page 28









 







amendment or extension of a Letter of Credit, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Committed Borrowing, Eurocurrency Rate Loan or
Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant
Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such
Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative
Agent or the L/C Issuer, as the case may be.



     1.05 Additional Alternative Currencies.



     (a) The Company may from time to time request that Eurocurrency Rate Loans be made and/or
Letters of Credit be issued in a currency other than those specifically listed in the definition of
“Alternative Currency;” provided that such requested currency is a lawful currency (other
than Dollars) that is readily available and freely transferable and convertible into Dollars. In
the case of any such request with respect to the making of Eurocurrency Rate Loans, such request
shall be subject to the approval of the Administrative Agent and each of the Lenders; and in the
case of any such request with respect to the issuance of Letters of Credit, such request shall be
subject to the approval of the Administrative Agent and the L/C Issuer.



     (b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., ten
Business Days prior to the date of the desired Credit Extension (or such other time or date as may
be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of
Credit, the L/C Issuer, in its or their sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Lender
thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative
Agent shall promptly notify the L/C Issuer thereof. Each Lender (in the case of any such request
pertaining to Eurocurrency Rate Loans) or the L/C Issuer (in the case of a request pertaining to
Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., ten Business
Days after receipt of such request whether it consents, in its sole discretion, to the making of
Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested
currency.



     (c) Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such request
within the time period specified in the preceding sentence shall be deemed to be a refusal by such
Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or
Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
Lenders consent to making Eurocurrency Rate Loans in such requested currency, the Administrative
Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to
be an Alternative Currency hereunder for purposes of any Committed Borrowings of Eurocurrency Rate
Loans; and if the Administrative Agent and the L/C Issuer consent to the issuance of Letters of
Credit in such requested currency, the Administrative Agent shall so notify the Company and such
currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for
purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain
consent to any request for an additional currency under this Section 1.05, the
Administrative Agent shall promptly so notify the Company.



Page 29









 





     1.06 Change of Currency.



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



     (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent, with the consent of the Borrowers (which consent shall
not be unreasonably withheld), may from time to time specify to be appropriate to reflect the
adoption of the Euro by any member state of the European Union and any relevant market conventions
or practices relating to the Euro.



     (c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent, with the consent of the Borrowers (which consent shall
not be unreasonably withheld), may from time to time specify to be appropriate to reflect a change
in currency of any other country and any relevant market conventions or practices relating to the
change in currency.



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



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



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



Page 30









 





ARTICLE II

THE CREDITS




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



     2.02 Borrowings, Conversions and Continuations of Committed Loans.



     (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other,
and each continuation of Eurocurrency Rate Committed Loans shall be made upon the Company’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate
Committed Loans denominated in Dollars or of any conversion of Eurocurrency Rate Committed Loans
denominated in Dollars to Base Rate Committed Loans, (ii) four Business Days (or five Business Days
in the case of a Special Notice Currency) prior to the requested date of any Borrowing
or continuation of Eurocurrency Rate Committed Loans denominated in Alternative
Currencies1, (iii) on the requested date of any Borrowing of Base Rate Committed Loans,
and (iv) on the Closing Date with respect to the initial Borrowing of Committed Loans to the extent
the interest rate on such Committed Loans is determined with reference to clause (d) of the
definition of Eurocurrency Base Rate for a one month interest period; provided,
however, that if the Company wishes to request Eurocurrency Rate Committed Loans having an
Interest Period other than one, two, three or six months in duration as provided in the definition
of “Interest Period,” the applicable notice must be received by the Administrative Agent not later
than 11:00 a.m. (i) four Business Days prior to the requested date of such Borrowing, conversion or
continuation of Eurocurrency Rate Committed Loans denominated in Dollars, or (ii) five Business
Days (or six Business Days in the case of a Special Notice Currency) prior to the requested date of
such Borrowing, conversion or





 




			
	1	 	To confirm with Bank of America Agency Management if
additional time is needed for certain foreign jurisdictions.




Page 31









 









continuation of Eurocurrency Rate Committed Loans denominated in Alternative Currencies,
whereupon the Administrative Agent shall give prompt notice to the Lenders of such request and
determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00
a.m., (i) three Business Days before the requested date of such Borrowing, conversion or
continuation of Eurocurrency Rate Committed Loans denominated in Dollars, or (ii) four Business
Days (or five Business Days in the case of a Special Notice Currency) prior to the requested date
of such Borrowing, conversion or continuation of Eurocurrency Rate Committed Loans denominated in
Alternative Currencies, the Administrative Agent shall notify the Company (which notice may be by
telephone) whether or not the requested Interest Period has been consented to by all the Lenders.
Each telephonic notice by the Company pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Company. Each Borrowing of, conversion to or
continuation of Eurocurrency Rate Committed Loans shall be in a principal amount of $3,000,000 or a
whole multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.04(c) and
2.05(c), each Borrowing of or conversion to Base Rate Committed Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Each Committed
Loan Notice (whether telephonic or written) shall specify (i) whether the Company is requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation
of Eurocurrency Rate Committed Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of
Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be
borrowed or to which existing Committed Loans are to be converted, (v) if applicable, the duration
of the Interest Period with respect thereto, (vi) the currency of the Committed Loans to be
borrowed, and (vii) if applicable, the applicable Designated Borrower. If the Company fails to
specify a currency in a Committed Loan Notice requesting a Borrowing, then the Committed Loans so
requested shall be made in Dollars. If the Company fails to specify a particular Borrower in a
Committed Loan Notice requesting a Borrowing, then the Committed Loans so requested shall be made
to the Company. If the Company fails to specify a Type of Committed Loan in a Committed Loan
Notice or if the Company fails to give a timely notice requesting a conversion or continuation,
then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans;
provided, however, that in the case of a failure to timely request a continuation
of Committed Loans denominated in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest Period of one month. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable Eurocurrency Rate Committed Loans. If the
Company requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Committed
Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed
to have specified an Interest Period of one month. No Committed Loan may be converted into or
continued as a Committed Loan denominated in a different currency, but instead must be prepaid in
the original currency of such Committed Loan and reborrowed in the other currency.




     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount (and currency) of its Applicable Percentage of the applicable
Committed Loans, and if no timely notice of a conversion or continuation is provided by the
Company, the Administrative Agent shall notify each Lender of the details of any



Page 32









 







automatic conversion to Base Rate Loans or continuation of Committed Loans denominated in a
currency other than Dollars, in each case as described in the preceding subsection. In the case of
a Committed Borrowing, each Lender shall make the amount of its Committed Loan available to the
Administrative Agent in Same Day Funds at the Administrative Agent’s Office for the applicable
currency not later than 12:00 noon, in the case of any Committed Loan denominated in Dollars, and
not later than the Applicable Time specified by the Administrative Agent in the case of any
Committed Loan in an Alternative Currency, in each case on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section
4.01), the Administrative Agent shall make all funds so received available to the Company or
other applicable Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of such Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Administrative Agent by the Company; provided,
however, that if, on the date the Committed Loan Notice with respect to such Borrowing
denominated in Dollars is given by the Company, there are L/C Borrowings outstanding, then the
proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and second, shall be made available to the applicable Borrower as provided
above.



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



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



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



     2.03 Bid Loans.



     (a) General. Subject to the terms and conditions set forth herein, each Lender agrees
that the Company may from time to time request the Lenders to submit offers to make loans in
Dollars (each such loan, a “Bid Loan”) to the Company prior to the Maturity Date pursuant
to



Page 33









 







this Section 2.03; provided, however, that after giving effect to any
Bid Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of all Bid Loans shall not exceed the Bid Loan Sublimit. There shall
not be more than ten different Interest Periods in effect with respect to Bid Loans at any time.



     (b) Requesting Competitive Bids. The Company may request the submission of
Competitive Bids by delivering a Bid Request to the Administrative Agent not later than 11:00 a.m.
(i) one Business Day prior to the requested date of any Bid Borrowing that is to consist of
Absolute Rate Loans, or (ii) four Business Days prior to the requested date of any Bid Borrowing
that is to consist of Eurocurrency Margin Bid Loans. Each Bid Request shall specify (i) the
requested date of the Bid Borrowing (which shall be a Business Day), (ii) the aggregate principal
amount of Bid Loans requested (which must be $5,000,000 or a whole multiple of $1,000,000 in excess
thereof), (iii) the Type of Bid Loans requested, and (iv) the duration of the Interest Period with
respect thereto, and shall be signed by a Responsible Officer of the Company. No Bid Request shall
contain a request for (i) more than one Type of Bid Loan or (ii) Bid Loans having more than three
different Interest Periods. Unless the Administrative Agent otherwise agrees in its sole and
absolute discretion, the Company may not submit a Bid Request if it has submitted another Bid
Request within the prior five Business Days.



     (c) Submitting Competitive Bids.




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




     (ii) Each Lender may (but shall have no obligation to) submit a Competitive Bid
containing an offer to make one or more Bid Loans in response to such Bid Request. Such
Competitive Bid must be delivered to the Administrative Agent not later than 8:30 a.m. (A)
on the requested date of any Bid Borrowing that is to consist of Absolute Rate Loans, and
(B) three Business Days prior to the requested date of any Bid Borrowing that is to consist
of Eurocurrency Margin Bid Loans; provided, however, that any Competitive
Bid submitted by Bank of America in its capacity as a Lender in response to any Bid Request
must be submitted to the Administrative Agent not later than 8:15 a.m. on the date on which
Competitive Bids are required to be delivered by the other Lenders in response to such Bid
Request. Each Competitive Bid shall specify (A) the proposed date of the Bid Borrowing; (B)
the principal amount of each Bid Loan for which such Competitive Bid is being made, which
principal amount (x) may be equal to, greater than or less than the Commitment of the
bidding Lender, (y) must be $5,000,000 or a whole multiple of $1,000,000 in excess thereof,
and (z) may not exceed the principal amount of Bid Loans for which Competitive Bids were
requested; (C) if the proposed Bid Borrowing is to consist of Absolute Rate Bid Loans, the
Absolute Rate offered for each such Bid Loan and the Interest Period applicable thereto; (D)
if the proposed Bid Borrowing is to consist of Eurocurrency Margin Bid Loans, the
Eurocurrency Bid Margin with respect to each such Eurocurrency Margin Bid Loan and the
Interest Period applicable thereto; and (E) the identity of the bidding Lender.




     (iii) Any Competitive Bid shall be disregarded if it (A) is received after the
applicable time specified in subsection (ii) above, (B) is not substantially in the form of
a



Page 34









 






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




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



     (d) Notice to Company of Competitive Bids. Not later than 9:00 a.m. (i) on the
requested date of any Bid Borrowing that is to consist of Absolute Rate Loans, or (ii) three
Business Days prior to the requested date of any Bid Borrowing that is to consist of Eurocurrency
Margin Bid Loans, the Administrative Agent shall notify the Company of the identity of each Lender
that has submitted a Competitive Bid that complies with Section 2.03(c) and of the terms of
the offers contained in each such Competitive Bid.



     (e) Acceptance of Competitive Bids. Not later than 9:30 a.m. (i) on the requested
date of any Bid Borrowing that is to consist of Absolute Rate Loans, and (ii) three Business Days
prior to the requested date of any Bid Borrowing that is to consist of Eurocurrency Margin Bid
Loans, the Company shall notify the Administrative Agent of its acceptance or rejection of the
offers notified to it pursuant to Section 2.03(d). The Company shall be under no
obligation to accept any Competitive Bid and may choose to reject all Competitive Bids. In the
case of acceptance, such notice shall specify the aggregate principal amount of Competitive Bids
for each Interest Period that is accepted. The Company may accept any Competitive Bid in whole or
in part; provided that:




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




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




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




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



     (f) Procedure for Identical Bids. If two or more Lenders have submitted Competitive
Bids at the same Absolute Rate or Eurocurrency Bid Margin, as the case may be, for the same
Interest Period, and the result of accepting all of such Competitive Bids in whole (together with
any other Competitive Bids at lower Absolute Rates or Eurocurrency Bid Margins, as the case may be,
accepted for such Interest Period in conformity with the requirements of Section
2.03(e)(iii)) would be to cause the aggregate outstanding principal amount of the



Page 35









 







applicable
Bid Borrowing to exceed the amount specified therefor in the related Bid Request, then, unless
otherwise agreed by the Company, the Administrative Agent and such Lenders, such Competitive Bids
shall be accepted as nearly as possible in proportion to the amount offered by each such Lender in
respect of such Interest Period, with such accepted amounts being rounded to the nearest whole
multiple of $1,000,000.



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



     (h) Notice of Eurocurrency Base Rate. If any Bid Borrowing is to consist of
Eurocurrency Margin Loans, the Administrative Agent shall determine the Eurocurrency Base Rate for
the relevant Interest Period, and promptly after making such determination, shall notify the
Company and the Lenders that will be participating in such Bid Borrowing of such Eurocurrency Base
Rate.



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



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



     2.04 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more
Alternative Currencies for the account of the Company or its Subsidiaries, and to amend or
extend Letters of Credit previously issued by it, in accordance with subsection (b) below,
and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of the Company or its
Subsidiaries and any drawings thereunder; provided that after giving effect to any
L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall
not exceed the Aggregate Commitments, (y) the aggregate



Page 36









 






Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall
not exceed the Letter of Credit Sublimit. Each request by the Company for the issuance or
amendment of a Letter of Credit shall be deemed to be a representation by the Company that
the L/C Credit Extension so requested complies with the conditions set forth in the proviso
to the preceding sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Company may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed. Each of the letters of credit outstanding on the date hereof and listed on
Schedule 2.04 (the “Existing Letters of Credit”) shall be deemed to have
been issued pursuant hereto, and from and after the Closing Date shall be subject to and
governed by the terms and conditions hereof.




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




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




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




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




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




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




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $100,000,



Page 37









 






in the case of a commercial Letter of Credit, or $500,000, in the case of a
standby Letter of Credit;




     (D) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is to be denominated in a currency other than Dollars or an
Alternative Currency;




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




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




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




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




     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.




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



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




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Company delivered to the L/C Issuer (with a copy to the Administrative Agent)
in the form of a Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of the Company. Such Letter of Credit Application must be received by
the L/C Issuer and the Administrative Agent (A) not later than 11:00 a.m. at least two
Business Days prior to the proposed issuance date or date of amendment, as the case may be,
of any Letter of Credit denominated in Dollars, and (B) not later than 11:00 a.m. at least
ten Business Days prior to the proposed issuance date or date of amendment, as the case may
be, of any Letter of Credit denominated in an Alternative Currency (or in



Page 38









 






each case such later date and time as the Administrative Agent and the L/C Issuer may
agree in a particular instance in their sole discretion) prior to the proposed issuance date
or date of amendment, as the case may be. In the case of a request for an initial issuance
of a Letter of Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as the L/C Issuer may require. In the case of a request for an amendment
of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form
and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally,
the Company shall furnish to the L/C Issuer and the Administrative Agent such other
documents and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may
require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Company and, if not,
the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C
Issuer has received written notice from any Lender, the Administrative Agent or the Company,
at least one Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in Article
IV shall not then be satisfied, then, subject to the terms and conditions hereof, the
L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the
Company or enter into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer’s usual and customary business practices. Immediately upon
the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation
in such Letter of Credit in an amount equal to the product of such Lender’s Applicable
Percentage times the amount of such Letter of Credit.




     (iii) If the Company so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Company shall not be required to make a specific request to
the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not



Page 39









 






require) the L/C Issuer to permit the extension of such Letter of Credit at any time to
an expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such extension if (A) the L/C
Issuer has determined that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of Section 2.04(a)(ii), 2.04(a)(iii) or
otherwise), or (B) it has received notice (which may be by telephone or in writing) on or
before the day that is five Business Days before the Non-Extension Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such extension or
(2) from the Administrative Agent, any Lender or the Company that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, and in each
such case directing the L/C Issuer not to permit such extension.




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



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Company and the
Administrative Agent thereof. In the case of a Letter of Credit denominated in an
Alternative Currency, the Company shall reimburse the L/C Issuer in such Alternative
Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that
it will require reimbursement in Dollars, or (B) in the absence of any such requirement for
reimbursement in Dollars, the Company shall have notified the L/C Issuer promptly following
receipt of the notice of drawing that the Company will reimburse the L/C Issuer in Dollars.
In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit
denominated in an Alternative Currency, the L/C Issuer shall notify the Company of the
Dollar Equivalent of the amount of the drawing promptly following the determination thereof.
Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit to be reimbursed in Dollars, or the Applicable Time on the date of any payment by the
L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each such
date, an “Honor Date”), the Company shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing and in the applicable
currency. If the Company fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in
the case of a Letter of Credit denominated in an Alternative Currency) (the
“Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage
thereof. In such event, the Company shall be deemed to have requested a Committed Borrowing
of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion
of the Aggregate Commitments and the conditions set forth in Section 4.02 (other
than the delivery of a Committed Loan Notice).



Page 40









 




Any notice given by the L/C Issuer or the Administrative Agent pursuant to this
Section 2.04(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.





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




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




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




     (v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.04(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Company or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Committed Loans
pursuant to this Section 2.04(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by the Company of a Committed Loan Notice). No
such making of an L/C Advance shall relieve or otherwise impair the obligation of the
Company to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the



Page 41









 






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



     (d) Repayment of Participations.




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




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.04(c)(i) is required to be returned under any of the
circumstances described in Section 11.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. The obligations of the Lenders under
this subsection shall survive the payment in full of the Obligations and the termination of
this Agreement.



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




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




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



Page 42









 






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




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




     (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Company or in the relevant currency markets generally;
or




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



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



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



Page 43









 







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



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



     (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer
and the Company when a Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of issuance shall apply to each
commercial Letter of Credit.



     (i) Letter of Credit Fees. The Company shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the
“Letter of Credit Fee”) (i) for each commercial Letter of Credit equal to 50% times
the Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn
under such Letter of Credit, and (ii) for each standby Letter of Credit equal to the Applicable
Rate times the Dollar Equivalent of the daily amount available to be drawn under such
Letter of Credit. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.09. Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears
and (ii) due and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the



Page 44









 







Applicable Rate during any quarter, the daily amount available to be drawn under each Letter
of Credit shall be computed and multiplied by the Applicable Rate or 50% of such Applicable Rate,
as the case may be, separately for each period during such quarter that such Applicable Rate was in
effect.



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



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



     (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Company shall be obligated to reimburse the L/C Issuer hereunder for any and
all drawings under such Letter of Credit. The Company hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the Company, and that
the Company’s business derives substantial benefits from the businesses of such Subsidiaries.



     2.05 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.05, to make loans (each such loan, a “Swing Line Loan”) to the Company
from time to time on any Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of
Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the
amount of such Lender’s Commitment; provided, however, that after giving effect to
any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and
(ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such



Page 45









 







Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Commitment, and provided, further, that the Company shall not
use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the Company may borrow
under this Section 2.05, prepay under Section 2.06, and reborrow under this
Section 2.05. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making
of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an
amount equal to the product of such Lender’s Applicable Percentage times the amount of such
Swing Line Loan.



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



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Committed Loan in an amount equal
to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Company with a copy of the



Page 46









 






applicable Committed Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount
specified in such Committed Loan Notice available to the Administrative Agent in Same Day
Funds for the account of the Swing Line Lender at the Administrative Agent’s Office for
Dollar-denominated payments not later than 12:00 noon on the day specified in such Committed
Loan Notice, whereupon, subject to Section 2.05(c)(ii), each Lender that so makes
funds available shall be deemed to have made a Base Rate Committed Loan to the Company in
such amount. The Administrative Agent shall remit the funds so received to the Swing Line
Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.05(c)(i), the request for Base Rate Committed
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.05(c)(i) shall be deemed
payment in respect of such participation.




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




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



     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage of such
payment (appropriately adjusted, in the case of interest payments, to




Page 47












 






reflect the period of time during which such Lender’s risk participation was funded) in
the same funds as those received by the Swing Line Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 11.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative
Agent will make such demand upon the request of the Swing Line Lender. The obligations of
the Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



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



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



     2.06 Prepayments.



     (a) Each Borrower may, upon notice from the Company to the Administrative Agent, at any time
or from time to time voluntarily prepay Committed Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate
Committed Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment
of Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency
Rate Committed Loans denominated in Alternative Currencies, and (C) on the date of prepayment of
Base Rate Committed Loans; (ii) any prepayment shall be in a principal amount of $3,000,000 or a
whole multiple of $1,000,000 in excess thereof or, if less, the entire principal amount thereof
then outstanding. Each such notice shall specify the date and amount of such prepayment and the
Type(s) of Committed Loans to be prepaid, the applicable Borrower and, if Eurocurrency Loans are to
be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable
Percentage of such prepayment. If such notice is given by the Company, the applicable Borrower
shall make such prepayment and the payment amount specified in such notice shall be due and payable
on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by
all accrued interest on the amount prepaid, together with any additional amounts required pursuant
to Section 3.05. Each such prepayment shall be applied to the Committed Loans of the
Lenders in accordance with their respective Applicable Percentages.



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



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



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



     (e) If the Administrative Agent notifies the Company at any time that the Outstanding Amount
of all Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of
the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of
such notice, the Borrowers shall prepay Loans in an aggregate amount sufficient to reduce such
Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative
Currency Sublimit then in effect.



     (f) If the Administrative Agent notifies the Company at any time that the Outstanding Amount
of all Loans made to the Designated Borrowers at such time exceeds an amount equal to 105% of the
Designated Borrower Sublimit then in effect, then, within two Business Days after receipt of such
notice, one or more Designated Borrowers shall prepay Loans in an aggregate amount sufficient to
reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the
Designated Borrower Sublimit then in effect.



     2.07 Termination or Reduction of Commitments. The Company may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. three Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $3,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or reduce the
Aggregate Commitments if, after giving effect thereto and to any



 Page 49 









 







concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate
Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Commitments, the
Alternative Currency Sublimit, the Bid Loan Sublimit, the Letter of Credit Sublimit, the Swing Line
Sublimit or the Designated Borrower Sublimit exceeds the amount of the Aggregate Commitments, such
Sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent
will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate
Commitments. The amount of any such Aggregate Commitment reduction shall not be applied to the
Alternative Currency Sublimit, the Letter of Credit Sublimit or the Designated Borrower Sublimit
unless otherwise specified by the Company. The Company may from time to time, upon not less than
three Business Days’ notice from the Company to the Administrative Agent (or such shorter period as
may be agreed by the Administrative Agent in its sole discretion), reduce the Designated Borrower
Sublimit by $50,000,000 or any whole multiple thereof, without any corresponding reduction in the
Aggregate Commitments; provided that such reduction shall only be permitted if, after
giving effect thereto, the outstanding Loans payable by the Designated Borrowers do not exceed the
Designated Borrower Sublimit as so reduced. Any reduction of the Aggregate Commitments shall be
applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued
until the effective date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.



     2.08 Repayment of Loans.



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



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



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



     2.09 Interest.



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



 Page 50 









 







rate mutually agreed to by the Company and the Swing Line Lender at the time of the borrowing
of such Swing Line Loan.



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




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




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



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



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



     (a) Facility Fee. The Company shall pay to the Administrative Agent for the account
of each Lender in accordance with its Applicable Percentage, a facility fee in Dollars equal to the
Applicable Rate times the actual daily amount of the Aggregate Commitments (or, if the
Aggregate Commitments have terminated, on the Outstanding Amount of all Committed Loans, Swing Line
Loans and L/C Obligations), regardless of usage. The facility fee shall accrue at all times during
the Availability Period (and thereafter so long as any Committed Loans, Swing Line Loans or L/C
Obligations remain outstanding), including at any time during which one or more of the conditions
in Article IV is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the Maturity Date (and, if applicable, thereafter on demand).
The facility fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect.



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



 Page 51 









 





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



     2.12 Evidence of Debt.



     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a Note,
which shall evidence such Lender’s Loans to the Borrowers in addition to such accounts or records.
Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable),
amount and maturity of its Loans and payments with respect thereto.



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



     2.13 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by any Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein and except with respect to principal of and interest on Loans denominated in an
Alternative Currency, all payments by the Borrowers hereunder shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is



 Page 52 









 







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



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




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or



 Page 53 









 







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



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



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



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender
to make any Committed Loan, to fund any such participation or to make any payment under Section
11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan, to purchase its participation or to make its payment under
Section 11.04(c).



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



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



 Page 54 









 







the aggregate amount of principal of and accrued interest on their respective Committed Loans
and other amounts owing them, provided that:




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




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



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



     2.15 Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Company may from time to time
request an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding
$150,000,000; provided that any such request for an increase shall be in a minimum amount
of $50,000,000. At the time of sending such notice, the Company (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of delivery of such
notice to the Lenders).



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



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



 Page 55 









 





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



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Company shall deliver to the Administrative Agent a certificate dated as of the
Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of
the Company (i) certifying and attaching the resolutions adopted by the Company approving or
consenting to such increase, and (ii) certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Article V and the other Loan
Documents are true and correct on and as of the Increase Effective Date, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case they are
true and correct as of such earlier date, and except that for purposes of this
Section 2.15, the representations and warranties contained in Section 5.11(a) shall
be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a)
and 6.01(b), and (B) no Default exists. The Borrowers shall prepay any Committed Loans
outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to
Section 3.05) to the extent necessary to keep the outstanding Committed Loans ratable with
any revised Applicable Percentages arising from any nonratable increase in the Commitments under
this Section.



     (f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.14 or 11.01 to the contrary.



     2.16 Extension of Maturity Date.



     (a) Requests for Extension. The Company may, by notice to the Administrative Agent
(who shall promptly notify the Lenders) not earlier than 60 days prior to either (but not both) of
the second or third anniversary of the Restatement Date (the “Applicable Anniversary Date”)
and not later than 50 days prior to the Applicable Anniversary Date, request that each Lender
extend such Lender’s Maturity Date for one year.



     (b) Lender Elections to Extend. Each Lender, acting in its sole and individual
discretion, shall, by notice to the Administrative Agent given not earlier than 30 days prior to
the Applicable Anniversary Date and not later than the date (the “Notice Date”) that is 20
days prior to the Applicable Anniversary Date, advise the Administrative Agent whether or not such
Lender agrees to such extension (and each Lender that determines not to so extend its Maturity Date
(a “Non-Extending Lender”) shall notify the Administrative Agent of such fact promptly
after such determination (but in any event no later than the Notice Date) and any Lender that does
not so advise the Administrative Agent on or before the Notice Date shall be deemed to be a
Non-Extending Lender. The election of any Lender to agree to such extension shall not obligate any
other Lender to so agree.



     (c) Notification by Administrative Agent. The Administrative Agent shall notify the
Company of each Lender’s determination under this Section no later than the date 15 days prior



 Page 56 









 







to the Applicable Anniversary Date (or, if such date is not a Business Day, on the next
preceding Business Day).



     (d) Additional Commitment Lenders. The Company shall have the right on or before the
Applicable Anniversary Date to replace each Non-Extending Lender with, and add as “Lenders” under
this Agreement in place thereof, one or more Eligible Assignees (each, an “Additional
Commitment Lender”) in accordance with the procedures provided in Section 11.13, each
of which Additional Commitment Lenders shall have entered into an Assignment and Assumption
pursuant to which such Additional Commitment Lender shall, effective as of the Applicable
Anniversary Date, undertake a Commitment (and, if any such Additional Commitment Lender is already
a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder on such date).



     (e) Minimum Extension Requirement. If (and only if) the total of the Commitments of
the Lenders that have agreed so to extend their Maturity Date and the additional Commitments of the
Additional Commitment Lenders shall be more than 50% of the aggregate amount of the Commitments in
effect immediately prior to the Notice Date, then, effective as of the Applicable Anniversary Date,
the Maturity Date of each Extending Lender and of each Additional Commitment Lender shall be
extended to the date falling one year after the Maturity Date (except that, if such date is not a
Business Day, such Maturity 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.



     (f) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, the
extension of the Maturity Date pursuant to this Section shall not be effective with respect to any
Lender unless:




     (i) no Default shall have occurred and be continuing on the date of such extension and
after giving effect thereto;




     (ii) the representations and warranties contained in this Agreement are true and
correct on and as of the date of such extension and after giving effect thereto, as though
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




     (iii) the Administrative Agent shall have received a certificate from the Company
signed by a Responsible Officer on behalf of the Company certifying the accuracy of the
foregoing clauses (i) and (ii).



     (g) Maturity Date for Non-Extending Lenders. On the Maturity Date of each
Non-Extending Lender, the Borrowers shall prepay any Committed Loans outstanding on such date (and
pay any additional amounts required pursuant to Section 3.05) to the extent necessary to
keep outstanding Committed Loans ratable with any revised Applicable Percentages of the respective
Lenders effective as of such date.



     (h) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.14 or 11.01 to the contrary.



 Page 57 









 





     2.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each Borrower acknowledges and agrees that:
(i) (A) the arranging and other services regarding this Agreement provided by the Administrative
Agent and the Arrangers, are arm’s-length commercial transactions between the Borrowers and their
affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the other hand, (B)
the Borrowers have consulted their own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate, and (C) the Borrowers are capable of evaluating, and understand and
accept, the terms, risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (ii) (A) the Administrative Agent and the Arrangers each is and has been acting
solely as a principal and, except as expressly agreed in writing by the relevant parties, has not
been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrowers or any of
their Affiliates, or any other Person and (B) neither the Administrative Agent nor any Arranger has
any obligation to the Borrowers or any of their Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan
Documents; and (iii) the Administrative Agent and the Arrangers and their respective Affiliates may
be engaged in a broad range of transactions that involve interests that differ from those of the
Borrowers and their Affiliates, and neither the Administrative Agent nor any Arranger has any
obligation to disclose any of such interests to the Borrowers or their Affiliates. To the fullest
extent permitted by law, each Borrower hereby waives and releases any claims that it may have
against the Administrative Agent and the Arrangers with respect to any breach or alleged breach of
agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby,
provided that the foregoing shall not be construed as a release of any obligations that are
expressly stated to be duties hereunder.



     2.18 Designated Borrowers.



     (a) The Company may at any time, upon not less than 15 Business Days’ notice from the Company
to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in
its sole discretion), designate any Subsidiary of the Company that is a Foreign Subsidiary (an
“Applicant Borrower”) as a Designated Borrower to receive Loans hereunder by delivering to
the Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly
executed notice and agreement in substantially the form of Exhibit G (a “Designated
Borrower Request and Assumption Agreement”); provided that such Applicant Borrower is
incorporated (or similarly organized) in a jurisdiction as to which all Lenders have confirmed to
the Administrative Agent their ability and willingness to make Committed Loans into such
jurisdiction; provided, however, that each Lender hereby confirms its ability and
willingness to make Committed Loans to a Designated Borrower into the following jurisdictions: (i)
the Netherlands, (ii) the Federal Republic of Germany, (iii) the Republic of Ireland and (iv) the
United Kingdom.



     (b) The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming
entitled to utilize the credit facilities provided for herein the Administrative Agent and the
Lenders shall have received such supporting resolutions, incumbency certificates, opinions of
counsel (including, without limitation, opinions of appropriate counsel to such Applicant Borrower)
and other documents or information, in form, content and scope reasonably satisfactory to the
Administrative Agent, as may be requested by the Administrative Agent or the



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Required Lenders in their sole discretion (including, without limitation, all documentation
and other information requested to comply with Section 11.16), and Notes signed by such new
Borrowers to the extent any Lenders so require.



     (c) Upon receipt of an executed and completed Designated Borrower Request and Assumption
Agreement, the Administrative Agent shall promptly forward such Designated Borrower Request and
Assumption Agreement to the Lenders. Any Lender not objecting to an Applicant Borrower within 5
Business Days of its receipt of such Designated Borrower Request and Assumption Agreement shall be
deemed to have agreed that such Applicant Borrower shall be entitled to receive Loans hereunder.
If the Administrative Agent and the Required Lenders agree that an Applicant Borrower shall be
entitled to receive Loans hereunder, then promptly following receipt of all such requested
resolutions, incumbency certificates, opinions of counsel and other documents or information, the
Administrative Agent shall send a notice in substantially the form of Exhibit H (a
“Designated Borrower Notice”) to the Company and the Lenders specifying the effective date
upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof,
whereupon each of the Lenders agrees to permit such Designated Borrower to receive Loans hereunder,
on the terms and conditions set forth herein, and each of the parties agrees that such Designated
Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no
Committed Loan Notice may be submitted by or on behalf of such Designated Borrower until the date
five Business Days after such effective date. In addition, each of the Required Lenders approving
the addition of such Designated Borrower hereunder further agrees that such approval shall also
constitute its consent to the Administrative Agent (on behalf of such Required Lenders) entering
into an amendment to this Agreement and any other Loan Document with the Borrowers to the extent
such amendment (i) is reasonably necessary either to permit, or to reduce or eliminate any Taxes
that might otherwise be payable in connection with, the making of Loans to such Designated Borrower
as a result of the jurisdiction of formation thereof and (ii) is not materially adverse to the
interests of the Lenders.



     (d) The Obligations of each Designated Borrower shall guaranteed by the Company pursuant to
the Guaranty. The Obligations of all Designated Borrowers shall be several in nature.



     (e) Each Subsidiary of the Company that is or becomes a “Designated Borrower” pursuant to this
Section 2.18 hereby irrevocably appoints the Company as its agent for all purposes relevant
to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of
notices, (ii) the execution and delivery of all documents, instruments and certificates
contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any
Loans made by the Lenders to any such Designated Borrower hereunder. Any acknowledgment, consent,
direction, certification or other action which might otherwise be valid or effective only if given
or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given
or taken only by the Company, whether or not any such other Borrower joins therein. Any notice,
demand, consent, acknowledgement, direction, certification or other communication delivered to the
Company in accordance with the terms of this Agreement shall be deemed to have been delivered to
each Designated Borrower.



     (f) In connection with each additional Applicant Borrower, the Company may, subject to the
written approval of the Administrative Agent and the Required Lenders, request an



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increase in the Designated Borrower Sublimit (which, for the avoidance of doubt, shall in no
event increase the Aggregate Commitments) by an amount for all such requests not exceeding
$100,000,000; provided that (i) no Default shall exist, (ii) any such request for an
increase shall be in a minimum amount of $50,000,000, and (iii) the Company may make a maximum of
two such requests.



     (g) The Company may from time to time, upon not less than 15 Business Days’ notice from the
Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative
Agent in its sole discretion), terminate a Designated Borrower’s status as such, provided
that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable
by such Designated Borrower on account of any Loans made to it, as of the effective date of such
termination. The Administrative Agent will promptly notify the Lenders of any such termination of a
Designated Borrower’s status.



ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



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



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



     (c) Indemnification by the Borrowers. Each applicable Borrower shall indemnify the
Administrative Agent, each applicable Lender and the L/C Issuer, within 30 days after written
demand (accompanied by appropriate documentation) therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Taxes imposed or asserted on or attributable to amounts payable
under this Section but only to the extent necessary to preserve the after-tax yield the Lender
would have received if such Indemnified Taxes or Other Taxes or Taxes imposed thereon had not been
imposed) paid by the Administrative Agent, such Lender or the L/C Issuer, as the case may be,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority.



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



     (e) Status of Lenders. (i) Each Foreign Lender shall deliver to the Company and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Company (on behalf of such Borrower) or the Administrative
Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is
applicable:




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




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




     (C) duly completed copies of Internal Revenue Service Form W-8IMY and all
required supporting documentation.




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




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




     (ii) Each Lender (other than a Lender that is a corporation for U.S. federal income tax
purposes) that is not a Foreign Lender shall on or before the date such Lender becomes a
Lender under this Agreement provide to the Company (with a copy to the Administrative Agent)
a duly completed copy of Internal Revenue Service Form W-9 or such other documentation or
information prescribed by applicable Laws or reasonably requested by the Company (on behalf
of a Borrower) or the Administrative Agent as will enable such Borrower or the
Administrative Agent, as the case may be, to determine whether or not such Lender is subject
to backup withholding or information reporting requirements.




     (iii) If any Foreign Lender sells, assigns, grants a participation in, or otherwise
ceases to be the beneficial owner of any portion of its Loans, such Foreign Lender shall



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deliver to the Administrative Agent a revised duly executed IRS Form W-8BEN or IRS Form
W-8ECI (or successor or replacement forms) reflecting the portion of the Loans the Foreign
Lender has retained and a duly executed W-8IMY (or successor or replacement form), including
required attachments, reflecting the portion of its Loans sold. If such Person fails to
deliver the above forms or other documentation, then the Administrative Agent may withhold
from any interest payment to such Person an amount equivalent to the applicable withholding
tax imposed by Sections 1441 and 1442 of the Code, without reduction, and such Person may
not collect any such payments from the Company. If any Governmental Authority asserts that
the Administrative Agent did not properly withhold any tax or other amount from payments
made in respect of such Person, such Person shall indemnify the Administrative Agent
therefor, including all penalties and interest, any taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent under this Section, and costs and expenses
(including all reasonable out-of-pocket fees and disbursements of any law firm or other
external counsel, the allocated costs of internal legal services and all disbursements of
internal counsel) of the Administrative Agent. The obligation of the Lenders under this
paragraph shall survive the termination of this Agreement, repayment of all Loans and the
resignation or replacement of the Administrative Agent.




     (iv) Without limiting the obligations of the Lenders set forth above regarding delivery
of certain forms and documents to establish each Lender’s status for U.S. withholding tax
purposes, each Lender agrees promptly to deliver to the Administrative Agent or the Company,
as the Administrative Agent or the Company shall reasonably request, on or prior to the
Closing Date, and in a timely fashion thereafter, such other documents and forms required by
any relevant taxing authorities under the Laws of any other jurisdiction, duly executed and
completed by such Lender, as are required under such Laws to confirm such Lender’s
entitlement to any available exemption from, or reduction of, applicable withholding taxes
in respect of all payments to be made to such Lender by any Borrower pursuant to this
Agreement or otherwise to establish such Lender’s status for withholding tax purposes in
such other jurisdiction. Each Lender shall promptly (A) notify the Administrative Agent and
the Company of any change in circumstances which would modify or render invalid any such
claimed exemption or reduction, and (B) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any requirement of
applicable Laws of any such jurisdiction that such Borrower make any deduction or
withholding for taxes from amounts payable to such Lender. Additionally, such Borrower
shall promptly deliver to the Administrative Agent or any Lender, as the Administrative
Agent or such Lender shall reasonably request, on or prior to the Closing Date in the case
of the Company or the date such Designated Borrower becomes a Borrower hereunder, and in a
timely fashion thereafter, such documents and forms required by any relevant taxing
authorities under the Laws of any jurisdiction, duly executed and completed by such
Borrower, as are required to be furnished by such Lender or the Administrative Agent under
such Laws in connection with any payment by the Administrative Agent or any Lender of Taxes
or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such
jurisdiction.



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



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in Dollars or an
Alternative Currency), or to determine or charge interest rates based upon the Eurocurrency Rate,
or any Governmental Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars or any Alternative Currency in the applicable
interbank market, then, on notice thereof by such Lender to the Company through the Administrative
Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans in the affected
currency or currencies or, in the case of Eurocurrency Rate Loans in Dollars to convert Base Rate
Committed Loans to Eurocurrency Rate Committed Loans shall be suspended until such Lender notifies
the Administrative Agent and the Company that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrowers shall, upon demand from such Lender
(with a copy to the Administrative Agent), prepay or, if applicable and such Loans are denominated
in Dollars, convert all Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on the
last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the Borrowers shall
also pay accrued interest on the amount so prepaid or converted.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof
that (a) deposits (whether in Dollars or an Alternative Currency) are not being offered to banks in
the applicable offshore interbank market for such currency for the applicable amount and Interest
Period of such Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurocurrency Base Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Committed Loan (whether in Dollars or an Alternative Currency), or (c) the
Eurocurrency Base Rate for any requested Interest Period with respect to a proposed Eurocurrency
Rate Committed Loan does not adequately and



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fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Company and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurocurrency Rate Loans shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Company
may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency
Rate Committed Loans or, failing that, will be deemed to have converted such request into a request
for a Committed Borrowing of Base Rate Loans in the amount specified therein.



     3.04 Increased Costs.



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




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




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




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




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


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




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



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



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



     (e) Additional Reserve Requirements. The Company shall pay (or cause the applicable
Designated Borrower to pay) to each Lender, as long as such Lender shall be required to comply with
any reserve ratio requirement or analogous requirement (other than those compensated through
Mandatory Costs) of any central banking or financial regulatory authority imposed in respect of the
maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs
(expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal
places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as
determined by such Lender in good faith, which determination shall be conclusive), which shall be
due and payable on each date on which interest is payable on such Loan, provided the
Company shall have received at least 15 days’ prior notice (with a copy to the Administrative
Agent) of such additional costs from such Lender. If a Lender fails to give notice 15 days prior
to the relevant Interest Payment Date, such additional costs shall be due and payable 15 days from
receipt of such notice.



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



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



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



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



     (d) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Company pursuant to Section 11.13;



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



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



     3.06 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or any Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender.



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     (b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if any Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01, the
Company may replace such Lender in accordance with Section 11.13.



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



ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extensions. The Restatement Date shall occur on the date
that the Administrative Agent shall have received all of the following, in form and substance
satisfactory to the Administrative Agent and each Lender, and in sufficient copies for each Lender:



     (a) Loan Documents. This Agreement and any Notes executed by each party thereto shall
have been delivered to Administrative Agent and each Exiting Lender shall have delivered to the
Administrative Agent a consent hereto in form satisfactory to the Administrative Agent;



     (b) Resolutions; Incumbency.




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




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



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




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




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



     (d) Legal Opinions. An opinion of Latham and Watkins, special counsel to the Company
and addressed to the Administrative Agent and the Lenders, in form and substance satisfactory to
the Administrative Agent;



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



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




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




     (ii) that no Default or Event of Default exists or would result from the initial
Borrowing;




     (iii) that there has occurred since December 31, 2005, no event or circumstance that
has resulted or could reasonably be expected to result in a Material Adverse Effect; and




     (iv) the current Debt Ratings; and



     (g) Existing Credit Agreement. Evidence that any revolving loans or other monetary
obligations under the Existing Credit Agreement as in effect immediately prior to the effectiveness
of this Agreement have been paid in full or refinanced on the Closing Date with Loans hereunder.



     (h) OFAC. A letter from the Company to the Administrative Agent relating to OFAC
matters, in form and substance satisfactory to the Administrative Agent.



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



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



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



     (a) The representations and warranties of the Borrowers contained in Article V shall
be true and correct on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they shall be
true and correct as of such earlier date, and except that for purposes of this Section
4.02, the representations and warranties contained in Section 5.11(a) shall be deemed
to refer to the most recent statements furnished pursuant to Sections 6.01(a)
and 6.01(b).



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



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



     (d) If the applicable Borrower is a Designated Borrower, then the conditions of Section
2.18 to the designation of such Borrower as a Designated Borrower shall have been met to the
satisfaction of the Administrative Agent.



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



ARTICLE V

REPRESENTATIONS AND WARRANTIES




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



     5.01 Corporate Existence and Power. The Company and each of its Subsidiaries:



     (a) is a corporation duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation;



     (b) has the power and authority and all governmental licenses, authorizations, consents and
approvals to own its assets, carry on its business and to execute, deliver, and perform its
obligations under the Loan Documents;



     (c) is duly qualified as a foreign corporation and is licensed and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its
business requires such qualification or license; and



     (d) is in compliance with all Requirements of Law;


except, in each case referred to in subsection (c) or (d), to the extent that the failure to do so
could not reasonably be expected to have a Material Adverse Effect.




     5.02 Corporate Authorization; No Contravention. The execution, delivery and performance by
each Borrower of this Agreement and each other Loan Document to which such Borrower is party, have
been duly authorized by all necessary corporate action, and do not and will not:



     (a) contravene the terms of any of such Borrower’s Organization Documents;



     (b) conflict with or result in any breach or contravention of, or the creation of any Lien
under, any document evidencing any material Contractual Obligation to which such



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Borrower is a party or any order, injunction, writ or decree of any Governmental Authority to
which such Borrower or its property is subject; or



     (c) violate any Requirement of Law applicable to such Borrower.



     5.03 Governmental Authorization. No approval, consent, exemption, authorization, or other
action by, or notice to, or filing with, any Governmental Authority is necessary or required in
connection with the execution, delivery or performance by, or enforcement against, the Company or
any of its Subsidiaries of this Agreement or any other Loan Document other than those which have
already been obtained or made.



     5.04 Binding Effect. This Agreement and each other Loan Document to which the Borrower or any
of its Subsidiaries is a party constitute the legal, valid and binding obligations of the Company
and its Subsidiaries to the extent it is a party thereto, enforceable against such Person in
accordance with their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or
by equitable principles relating to enforceability.



     5.05 Litigation. Except as specifically disclosed in Schedule 5.05, there are no
actions, suits, proceedings, claims or disputes pending, or to the best knowledge of the Company,
threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority,
against the Company or its Subsidiaries or any of their respective properties which:



     (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby or thereby; or



     (b) may reasonably be expected to have a Material Adverse Effect. No injunction, writ,
temporary restraining order or any order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of
this Agreement or any other Loan Document, or directing that the transactions provided for herein
or therein not be consummated as herein or therein provided.



     5.06 No Default. No Default or Event of Default exists or would result from the incurring of
any Obligations by any Borrower. As of the Closing Date, neither any Borrower nor any Subsidiary
of the Company is in default under or with respect to any Contractual Obligation in any respect
which, individually or together with all such defaults, could reasonably be expected to have a
Material Adverse Effect.



     5.07 ERISA Compliance. Except as specifically disclosed in Schedule 5.07:



     (a) Each Plan sponsored or maintained by the Company or an ERISA Affiliate is in compliance in
all respects with the applicable provisions of ERISA, the Code and other federal or state law
except where the failure to so comply, together with all other such failures to comply, could not
reasonably be expected to result in liability to the Company in an aggregate amount in excess of
$25,000,000. Each Plan sponsored or maintained by the Company or an ERISA Affiliate which is
intended to qualify under Section 401(a) of the Code has received a favorable determination letter
from the IRS and to the best knowledge of the Company, nothing has occurred which would cause the
loss of such qualification. The Company and each ERISA



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Affiliate have made all required contributions to any Plan subject to Section 412 of the Code
sponsored or maintained by the Company or an ERISA Affiliate, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan sponsored or maintained by the Company or an ERISA Affiliate, except where
the failure to make such required contribution, together with all such other failures to make
required contributions, could not reasonably be expected to result in liability of the Company in
an aggregate amount in excess of $25,000,000.



     (b) There are no pending or, to the best knowledge of Company, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan sponsored or maintained
by the Company or an ERISA Affiliate which has resulted or could reasonably be expected to result
in a liability of the Company in an aggregate amount in excess of $25,000,000. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan,
other than a Multiemployer Plan or, to the knowledge of the Company and each ERISA Affiliate, with
respect to any Multiemployer Plan, which has resulted or could reasonably be expected to result in
a Material Adverse Effect.



     (c) (i) No ERISA Event or Events have occurred which could reasonably be expected to result in
liability of the Company in an aggregate amount in excess of $25,000,000; (ii) the aggregate amount
of Unfunded Pension Liability among all Pension Plans does not exceed $25,000,000; (iii) neither
the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, liability under
Title IV of ERISA with respect to all Pension Plans (other than premiums due and not delinquent
under Section 4007 of ERISA) in an aggregate amount in excess of $25,000,000; (iv) neither the
Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Section 4201 or 4243 of ERISA with respect to all Plans in an aggregate
amount in excess of $25,000,000; and (v) neither the Company nor any ERISA Affiliate has engaged in
a transaction that could be subject to Section 4069 or 4212(c) of ERISA and which could reasonably
be expected to result in liability of the Company in an amount in excess of $25,000,000.



     5.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to be used solely for
the purposes set forth in and permitted by Section 6.12. Neither any Borrower nor any
Subsidiary of the Company is generally engaged in the business of purchasing or selling Margin
Stock or extending credit for the purpose of purchasing or carrying Margin Stock.



     5.09 Title to Properties. The Company and each Subsidiary have good record and marketable
title in fee simple to, or valid leasehold interests in, all real property necessary or used in the
ordinary conduct of their respective businesses, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As of the Closing Date, the
property of the Company and its Subsidiaries is subject to no Liens, other than Permitted Liens.



     5.10 Taxes. The Company and its Subsidiaries have filed all Federal and other material tax
returns and reports required to be filed, and have paid all Federal and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being contested



 Page 71 









 







in good faith by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or any Subsidiary
that would, if made, have a Material Adverse Effect.



     5.11 Financial Condition.



     (a) The (i) audited consolidated financial statements of the Company and its Subsidiaries
dated December 31, 2005, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal year ended on that date, and (ii) unaudited
consolidated financial statements of the Company and its Subsidiaries dated September 30, 2006, and
the related consolidated statements of income or operations, shareholders’ equity and cash flows
for the fiscal quarter ended on that date:




     (i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, subject to ordinary, good
faith year end audit adjustments and the absence of footnotes;




     (ii) fairly present the financial condition of the Company and its Subsidiaries as of
the date thereof and results of operations for the period covered thereby; and




     (iii) except as specifically disclosed in Schedule 5.11, show all material
indebtedness and other liabilities, direct or contingent, of the Company and its
consolidated Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments and Contingent Obligations.



     (b) Since December 31, 2005, there has been no Material Adverse Effect.



     5.12 Environmental Matters. Except as specifically disclosed in Schedule 5.12, no
Borrower is in violation of any Environmental Laws and there are no pending Environmental Claims
against any Borrower or the Borrowers collectively that, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.



     5.13 Regulated Entities. None of the Company, any Person controlling the Company, any
Borrower, or any Subsidiary, is an “Investment Company” within the meaning of the Investment
Company Act of 1940. No Borrower is subject to regulation under the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal or state statute or
regulation limiting its ability to incur Indebtedness.



     5.14 Subsidiaries. As of the date of this Agreement, the Company has no Subsidiaries other
than those specifically disclosed in part (a) of Schedule 5.14 hereto and has no equity
investments in any other corporation or entity other than those specifically disclosed in part (b)
of Schedule 5.14. Unless otherwise indicated on Schedule 5.14, as of the date of
this Agreement, all of the issued and outstanding shares of capital stock of each of the
Subsidiaries listed on Schedule 5.14 are owned directly or indirectly through Wholly-Owned
Subsidiaries by the Company and all of such shares have been duly and validly authorized and issued
and are fully paid and non-assessable and no party has a right to acquire any such capital stock
and there are no outstanding subscription options, warrants, commitments, convertible securities,
preemptive rights or other rights exercisable or exchangeable for or convertible into such capital
stock.




 Page 72 












 





     5.15 Insurance. Except as specifically disclosed in Schedule 5.15, the properties of
the Company and its Subsidiaries are insured as required by Section 6.06.



     5.16 Swap Obligations. Neither the Company nor any of its Subsidiaries has incurred any
outstanding obligations under any Swap Contracts, other than Permitted Swap Obligations.



     5.17 Full Disclosure. None of the representations or warranties made by the Company or any
Subsidiary in the Loan Documents as of the date such representations and warranties are made or
deemed made, and none of the statements contained in any exhibit, report, statement or certificate
furnished by or on behalf of the Company or any Subsidiary in connection with the Loan Documents
(including the offering and disclosure materials delivered by or on behalf of the Company to the
Lenders prior to the Closing Date) taken as a whole, contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they are made, not misleading as of the
time when made or delivered. All projections and pro forma financial information contained in any
materials furnished by or on behalf of the Company or any of its Subsidiaries to any Lender are
based on good faith estimates and assumptions by the management of the Company or the applicable
Subsidiary, it being recognized by the Lenders, however, that projections as to future events are
not to be viewed as fact and that actual results during the period or periods covered by any such
projections may differ from the projected results and that the differences may be material.



ARTICLE VI

AFFIRMATIVE COVENANTS




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



     6.01 Financial Statements. The Company shall deliver to the Administrative Agent, and upon
receipt thereof the Administrative Agent shall furnish to each Lender:



     (a) as soon as available, but not later than 90 days after the end of each fiscal year,
commencing with the fiscal year ended December 31, 2006, a copy of the audited consolidated balance
sheet of the Company and its Subsidiaries as at the end of such year and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such year, setting
forth in each case in comparative form the figures for the previous fiscal year, and accompanied by
the opinion of Deloitte & Touche LLP or another nationally-recognized independent public accounting
firm (“Independent Auditor”) which opinion shall state that such consolidated financial
statements present fairly the financial position for the periods indicated in conformity with GAAP
applied on a consistent basis. Such opinion shall not be qualified or limited, in either case,
because of a restricted or limited examination by the Independent Auditor of any material portion
of the Company’s or any Subsidiary’s records and shall be delivered to the Administrative Agent
pursuant to a reliance letter between the Administrative Agent and Lenders and such Independent
Auditor in form and substance satisfactory to the Administrative Agent;



Page 73









 





     (b) as soon as available, but not later than 45 days after the end of each of the first three
fiscal quarters of each fiscal year, commencing with the fiscal quarter ended December 31, 2006, a
copy of the unaudited consolidated balance sheet of the Company and its Subsidiaries as of the end
of such quarter and the related consolidated statements of income for such quarter and the year to
date period then ended, shareholders’ equity and cash flows for the period commencing on the first
day of the fiscal year and ending on the last day of such quarter, and certified by a Responsible
Officer as fairly presenting, in accordance with GAAP (subject to ordinary, good faith year-end
audit adjustments), the financial position and the results of operations of the Company and the
Subsidiaries;



     (c) promptly when available and in any event within 45 days after the close of each fiscal
year commencing with the fiscal year ending December 31, 2006, a business and financial plan,
including projections of consolidated cash flows and statements of income, for the Company and its
Subsidiaries for the then current fiscal year, setting forth such consolidated projections on a
quarter-by-quarter basis and including a projected year-end consolidated balance sheet; and



     (d) promptly upon receipt thereof, copies of all statements as to the material weaknesses of
accounting controls submitted to the Company by independent public accountants in connection with
each annual or interim audit made by such accountants of the financial statements of the Company or
any of its Subsidiaries.



     To the extent included therein, the information required to be delivered pursuant to this
Section 6.01 may be delivered by delivery of the financial statements and reports required
to be delivered pursuant to Section 6.02(c).



     6.02 Certificates; Other Information. The Company shall furnish to the Administrative Agent,
and upon receipt thereof the Administrative Agent shall furnish to each Lender:



     (a) concurrently with the delivery of the financial statements referred to in
Section 6.01(a), a certificate of the Independent Auditor stating that in making the
examination necessary therefor no knowledge was obtained of any Default or Event of Default, except
as specified in such certificate;



     (b) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), a Compliance Certificate executed by a Responsible
Officer;



     (c) promptly, copies (which may be in electronic format) of all financial statements and
reports that the Company sends to its shareholders, and copies of all financial statements and
regular, periodical or special reports (including Forms 10-K, 10-Q and 8-K but not including Forms
3, 4 or 5) that the Company or any Subsidiary may make to, or file with, the SEC; and



     (d) promptly, such additional information regarding the business, financial or corporate
affairs of the Company or any Subsidiary as the Administrative Agent, at the request of any Lender,
may from time to time reasonably request.



Page 74









 





     6.03 Notices. The Company shall promptly notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default or Event of Default, upon a Responsible Officer becoming
aware thereof;



     (b) of any matter that has resulted or may (in the reasonable judgment of the Company),
reasonably be expected to result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of the Company or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the
Company or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting the Company or any Subsidiary,
including pursuant to any applicable Environmental Laws;



     (c) of the occurrence of any of the following events affecting the Company or any ERISA
Affiliate (but in no event more than 30 days after such event), and deliver to the Administrative
Agent and each Lender a copy of any notice with respect to such event that is filed with a
Governmental Authority and any notice delivered by a Governmental Authority to the Company or any
ERISA Affiliate with respect to such event:




     (i) an ERISA Event or Events which could reasonably be expected to result in liability
of any Borrower in an aggregate amount in excess of $25,000,000; or




     (ii) the Unfunded Pension Liability among all Pension Plans is reasonably expected to
exceed $25,000,000.



     (d) of any material change in accounting policies or financial reporting practices by the
Company or any of its consolidated Subsidiaries; and



     (e) of any announcement by Moody’s, S&P or Fitch of any change in a Debt Rating.



     Each notice under this Section shall be accompanied by a written statement by a Responsible
Officer setting forth details of the occurrence referred to therein, and stating what action the
Company or any affected Subsidiary proposes to take with respect thereto and at what time (although
the failure to take any such action shall not constitute a Default or Event of Default under this
Agreement). Each notice under Section 6.03(a) shall describe each Default or Event of
Default which has occurred or which is expected to occur.



     6.04 Preservation of Corporate Existence, Etc. Each Borrower shall, and shall cause each
Material Subsidiary to:



     (a) preserve and maintain in full force and effect its corporate existence and good standing
under the laws of its state or jurisdiction of incorporation, except as otherwise permitted by this
Agreement;



     (b) preserve and maintain in full force and effect all governmental rights, privileges,
qualifications, permits, licenses and franchises necessary or desirable in the normal conduct of
its business except in connection with transactions permitted by Section 7.03 and sales of
assets



Page 75









 







permitted by Section 7.02 and except for any of the foregoing the expiration or
termination of which could not reasonably be expected to have a Material Adverse Effect;



     (c) use reasonable efforts, in the ordinary course of business, to preserve its business
organization; and



     (d) preserve or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a Material Adverse
Effect.



     6.05 Maintenance of Property. Each Borrower shall maintain, and shall cause each Material
Subsidiary to maintain, and preserve all its property which is used in its business in good working
order and condition, ordinary wear and tear excepted except where the failure to so maintain or
preserve could not reasonably be expected to have a Material Adverse Effect and except as permitted
by Section 7.02.



     6.06 Insurance. The Company shall maintain, and shall cause each Subsidiary to maintain, with
financially sound and reputable independent insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons, provided that the Company and its Subsidiaries may
self-insure against such risks and in such amounts as is usually self-insured by companies engaged
in similar businesses and owning similar properties in the same general areas in which the Company
or such Subsidiary operates.



     6.07 Payment of Tax Obligations. The Company shall, and shall cause each Subsidiary to, pay
and discharge as the same shall become due and payable, all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in accordance with GAAP
are being maintained by the Company or such Subsidiary.



     6.08 Compliance with Laws. The Company shall comply, and shall cause each Subsidiary to
comply, in all material respects with all Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal Fair Labor Standards Act), except where
the failure to so comply could not reasonably be expected to have a Material Adverse Effect.



     6.09 Compliance with ERISA. Each Borrower shall, and shall cause each of its ERISA Affiliates
to: (a) maintain each Plan in compliance in all material respects with the applicable provisions
of ERISA, the Code and other federal or state law; (b) cause each Plan which is qualified under
Section 401(a) of the Code to maintain such qualification; and (c) make all required contributions
to any Plan subject to Section 412 of the Code except, in the case of (a), (b) and (c) above where
such failure to maintain or contribute could not reasonably be expected to result in liability of
any Borrower in excess of $25,000,000 in the aggregate.



     6.10 Inspection of Property and Books and Records. The Company shall maintain and shall cause
each Subsidiary to maintain proper books of record and account, in which full, true and correct
entries in conformity with GAAP consistently applied shall be made of all



Page 76









 







financial transactions and matters involving the assets and business of the Company and such
Subsidiary. The Company shall permit, and shall cause each Subsidiary to permit, representatives
and independent contractors of the Administrative Agent or representatives of any Lender to visit
and inspect any of their respective properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective directors, officers, and, in the
presence of the Company if the Company shall so request, the Independent Auditor, all such
reasonable times during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company.



     6.11 Environmental Laws. The Company shall, and shall cause each Subsidiary to, conduct its
operations and keep and maintain its property in compliance with all Environmental Laws, except
where the failure to so comply could not reasonably be expected to have a Material Adverse Effect.



     6.12 Use of Proceeds. Each Borrower shall use the proceeds of the Loans (i) to refinance
existing debt of the Company and its Subsidiaries and (ii) for working capital and other general
corporate purposes (including Acquisitions) not in contravention of any Requirement of Law
(including Regulations T, U and X of the FRB) or of any Loan Document.



ARTICLE VII

NEGATIVE AND FINANCIAL COVENANTS




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



     7.01 Limitation on Liens. The Company shall not, and shall not suffer or permit any
Subsidiary to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien upon
or with respect to any part of its property, whether now owned or hereafter acquired, other than
the following (“Permitted Liens”):



     (a) any Lien existing on property of the Company or any Subsidiary on the Closing Date and set
forth in Schedule 7.01 securing Indebtedness outstanding on such date;



     (b) any Lien created under any Loan Document;



     (c) Liens for taxes, fees, assessments or other governmental charges which are not delinquent
or remain payable without penalty, or to the extent that non-payment thereof is permitted by
Section 6.07, provided that no notice of lien has been filed or recorded under the Code;



     (d) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other
similar Liens arising in the ordinary course of business which are not delinquent for more than 90
days or remain payable without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of
the property subject thereto;



Page 77









 





     (e) Liens (other than any Lien imposed by ERISA) consisting of pledges or deposits required in
the ordinary course of business in connection with workers’ compensation, unemployment insurance
and other social security legislation;



     (f) Liens on the property of the Company or its Subsidiary securing (i) the non-delinquent
performance of bids, trade contracts (other than for borrowed money), leases, statutory
obligations, (ii) contingent obligations on surety and appeal bonds, and (iii) other non-delinquent
obligations of a like nature; in each case, incurred in the ordinary course of business and
treating as non-delinquent any delinquency which is being contested in good faith and by
appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of
the property subject thereto;



     (g) Liens consisting of judgment or judicial attachment liens with respect to judgments which
do not constitute an Event of Default and in the aggregate do not exceed $25,000,000;



     (h) easements, rights-of-way, restrictions and other similar encumbrances which, in the
aggregate, are not substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or interfere with the ordinary conduct of the businesses of
the Company and its Subsidiaries;



     (i) Liens on assets of Persons which become Subsidiaries after the date of this Agreement,
provided, however, that such Liens existed at the time the respective Persons
became Subsidiaries and were not created in anticipation thereof and such liens do not extend to
any other property of any Borrower (except proceeds of such property, and in the case of Liens on
real estate or equipment, items which become fixtures on such real estate or are accessions to such
equipment pursuant to the terms of the original agreement governing such Lien);



     (j) purchase money security interests on any property acquired or held by the Company or its
Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such property; provided
that (i) any such Lien attaches to such property concurrently with or within 90 days after
the acquisition thereof, (ii) such Lien attaches solely to the property so acquired in such
transaction and the proceeds thereof, (iii) the principal amount of the debt secured thereby does
not exceed 100% of the cost of such property, and (iv) the principal amount of the Indebtedness
secured by any and all such purchase money security interests, together with Indebtedness permitted
under Section 7.05(d) and Attributable Indebtedness in respect of Sale and Leaseback
Transactions outstanding and permitted by Section 7.13(a), shall not at any time exceed
$40,000,000;



     (k) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; provided that (i) such
deposit account is not a dedicated cash collateral account and is not subject to restrictions
against access by the Company in excess of those set forth by regulations promulgated by the FRB,
and (ii) such deposit account is not intended by the Company or any Subsidiary to provide
collateral to the depository institution;



Page 78









 





     (l) Liens consisting of pledges of cash collateral or government securities, to secure on a
mark-to-market basis Permitted Swap Obligations (including customary netting arrangements therein)
only, provided that (i) the counterparty to any Swap Contract relating to such Permitted Swap
Obligations is under a similar requirement to deliver similar collateral from time to time to the
Company or the Subsidiary party thereto on a mark-to-market basis; and (ii) the aggregate value of
such collateral so pledged by the Company and the Subsidiaries together in favor of any
counterparty does not at any time exceed $10,000,000;



     (m) Liens securing reimbursement obligations for letters of credit which encumber only goods
and rights related thereto, or documents of title covering goods, which are purchased in
transactions for which such letters of credit are issued;



     (n) any extension, renewal or substitution of or for any of the foregoing Liens; provided that
(i) the Indebtedness or other obligation or liability secured by the applicable Lien shall not
exceed the Indebtedness or other obligation or liability existing immediately prior to such
extension, renewal or substitution and (ii) the Lien securing such Indebtedness or other obligation
or liability shall be limited to the property which, immediately prior to such extension, renewal
or substitution, secured such Indebtedness or other obligation or liability; and



     (o) other Liens securing obligations which, together with the amount of Attributable
Indebtedness in respect of Sale and Leaseback Transactions outstanding and permitted by
Section 7.13(b), do not exceed $10,000,000 in the aggregate at any one time outstanding.



     7.02 Disposition of Assets. The Company shall not, and shall not suffer or permit any
Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose
of (collectively, a “Disposition”) (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or without recourse) or enter into any
agreement to do any of the foregoing, except:



     (a) Dispositions of inventory, or used, worn-out, obsolete or surplus equipment or
intellectual property, all in the ordinary course of business;



     (b) Dispositions of equipment and other fixed assets to the extent that such equipment or
other fixed assets is exchanged for credit against the purchase price of similar replacement
equipment or other fixed assets, or the proceeds of such sale are reasonably promptly applied to
the purchase price of such replacement equipment or other fixed assets;



     (c) Dispositions of Accounts Receivable pursuant to a Permitted Receivables Purchase Facility;



     (d) Disposition of assets received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;



     (e) Dispositions of assets between and among the Company and its Wholly-Owned Subsidiaries
that are Domestic Subsidiaries, and Dispositions of assets between and among Wholly-Owned
Subsidiaries of the Company that are Foreign Subsidiaries; provided that no Designated
Borrower may make a Disposition of assets to a Foreign Subsidiary unless such



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Foreign Subsidiary (i) is organized in the jurisdiction of organization of such Designated
Borrower or (ii) is either a Wholly-Owned Subsidiary of such Designated Borrower or such Designated
Borrower is a Wholly-Owned Subsidiary of such Foreign Subsidiary;



     (f) sales of Accounts Receivable by Foreign Subsidiaries which do not provide directly or
indirectly for recourse for credit losses against the seller of such Accounts Receivable or against
any of such seller’s Affiliates and which are done on customary market terms or on other terms
satisfactory to the Administrative Agent; and



     (g) Dispositions not otherwise permitted hereunder which are made for fair market value;
provided, that (i) at the time of any disposition, no Event of Default shall exist or shall
result from such disposition, (ii) the aggregate sales price from such disposition shall be paid in
cash (provided, that the Company may accept promissory notes in an aggregate principal amount
outstanding at any time not to exceed $10,000,000), and (iii) the aggregate value of all assets so
sold by the Company and its Subsidiaries pursuant to this subsection (g), together, shall not
exceed in any fiscal year, 10% of Consolidated Total Assets as of the end of the most recent fiscal
year (but excluding, for purposes of calculation of such 10% amount, the assets of any operating
business sold as a whole in compliance with the proviso at the end of this subsection),
provided further that the sale by the Company or any Subsidiary of one or more
operating business in one year which, in the aggregate, accounts for more than 10% of EBITDA of the
Company as of the most recently ended fiscal year shall require the consent of the Required Lenders
and the Company, on a pro forma basis calculated as of the last day of the most recently completed
fiscal quarter, shall be in compliance with the Leverage Ratio as of the date of such Disposition.



     7.03 Consolidations and Mergers. The Company shall not, and shall not suffer or permit any
Subsidiary to, merge or consolidate with or into any Person, except:



     (a) any Subsidiary may merge (i) with the Company, provided that the Company shall be the
continuing or surviving corporation, (ii) with any one or more Subsidiaries (other than a
Subsidiary that is a Borrower), provided that if any transaction shall be between a Subsidiary and
a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the continuing or surviving
corporation, or (iii) with a Subsidiary that is a Borrower, provided that a Borrower shall be the
continuing or surviving corporation; and



     (b) any Subsidiary (other than a Subsidiary that is a Borrower) may sell all or substantially
all of its assets (upon voluntary liquidation or otherwise), to the Company or another Wholly-Owned
Subsidiary or as otherwise permitted by Section 7.02; provided that no Designated
Borrower may engage in any such transaction other than to the Company or another Designated
Borrower.



Any Disposition of assets which would be permitted by Section 7.02 or any Investment
permitted by Section 7.04 may also be done via merger or consolidation and such merger or
consolidation (which results solely in a Disposition otherwise permitted by Section 7.02 or
Investment otherwise permitted by Section 7.04, as the case may be) shall be permitted
pursuant to this Section 7.03.



Page 80









 





     7.04 Loans and Investments. The Company shall not purchase or acquire, or suffer or permit
any Subsidiary to purchase or acquire, or make any commitment therefor, any capital stock, equity
interest, or any obligations or other securities of, or any interest in, any Person, or make or
commit to make (unless contingent upon a waiver or amendment of the terms hereof) any Acquisitions,
or make or commit to make any advance, loan, extension of credit or capital contribution to or any
other investment in, any Person including any Affiliate of the Company (together,
“Investments”), except for:



     (a) Investments held by the Company or Subsidiary in the form of cash or cash equivalents;



     (b) extensions of credit in the nature of accounts receivable or notes receivable arising from
the sale or lease of goods or services in the ordinary course of business;



     (c) extensions of credit by the Company or its Subsidiaries to their employees in the ordinary
course of business for travel, relocation and related expenses;



     (d) existing Investments in Subsidiaries and the other Investments identified on Schedule
7.04 (in each case, as such Investments may be adjusted due to appreciation, repayment of
principal, payment of interest, return of capital and similar circumstances);



     (e) additional Investments in any Subsidiary (other than an Investment constituting an
Acquisition which shall be governed by subsection (f) below);



     (f) Investments constituting a Permitted Acquisition;



     (g) Investments constituting Permitted Swap Obligations or payments or advances under Swap
Contracts relating to Permitted Swap Obligations;



     (h) Investments held by any Subsidiary of the Company in any of its customers or suppliers
which are received as distributions in bankruptcy proceedings or as negotiated settlements for
obligations incurred to it by such customer for the purchase of goods manufactured or services
provided by it;



     (i) Investments by way of stock or similar ownership interests of 50% or less in any Person in
an aggregate amount not to exceed $50,000,000 at any one time outstanding;



     (j) Investments by way of promissory notes received in connection with a Disposition permitted
by Section 7.02(g);



     (k) Investments in a Receivables Subsidiary prior to the occurrence and continuation of an
Event of Default which in the judgment of the Company are reasonably necessary in connection with
any Permitted Receivables Purchase Facility; and



     (l) additional investments of a nature not contemplated by the foregoing subsections (a)
through (k) not to exceed $50,000,000 in the aggregate at any time outstanding, provided, however,
that this clause shall not be construed to permit additional investments in



Page 81









 







ownership interests of 50% or less in any Person which would not be permitted by subsection
(i) above.



     7.05 Limitation on Indebtedness. The Company shall not, and shall not suffer or permit any
Subsidiary to, create, incur, assume, suffer to exist, or otherwise become or remain directly or
indirectly liable with respect to, any Indebtedness, except:



     (a) Indebtedness incurred pursuant to this Agreement;



     (b) Indebtedness consisting of Contingent Obligations permitted pursuant to
Section 7.07;



     (c) Indebtedness existing on the Closing Date and set forth in Schedule 7.05, and any
Refinancing Indebtedness with respect thereto;



     (d) Indebtedness secured by Liens permitted by Section 7.01(j) in an aggregate amount
outstanding at any time not to exceed $40,000,000;



     (e) Intercompany Indebtedness to the extent permitted by Section 7.04;
provided, however, that in the event of any subsequent issuance or transfer of any
capital stock which results in the holder of such Indebtedness ceasing to be a Subsidiary of the
Company or any subsequent transfer of such Indebtedness (other than to the Company or any of its
Subsidiaries) such Indebtedness shall be required to be permitted under another clause of this
Section 7.05; provided, further, however, that in the case of
Intercompany Indebtedness consisting of a loan or advance to the Company, each such loan or advance
shall be subordinated to the indefeasible payment in full of all of the Company’s obligations
pursuant to this Agreement and the other Loan Documents;



     (f) Subordinated Debt of the Company;



     (g) Indebtedness of any Subsidiary and unsecured guarantees thereof by the Company,
provided that the aggregate amount of such Indebtedness under this subsection (g), together
with Indebtedness consisting of Contingent Obligations of any Subsidiary which are outstanding and
permitted solely by Section 7.07(h), does not exceed at any time outstanding, 15% of
Consolidated Total Assets;



     (h) Unsecured Indebtedness of the Company, as long as the Company would remain in compliance
with Section 7.15 after giving pro forma effect to the incurrence of such Indebtedness; and



     (i) Receivables Facility Attributed Indebtedness.



     7.06 Transactions with Affiliates. The Company will not, and will not permit any of its
Subsidiaries to, enter into, or cause, suffer or permit to exist:



     (a) any arrangement or contract with any of its other Affiliates of a nature customarily
entered into by Persons which are Affiliates of each other for tax or financial reporting purposes
(including, without limitation, management or similar contracts or



Page 82









 







arrangements relating to the allocation of revenues, taxes and expenses or otherwise) unless
such arrangement or contract is fair and equitable to the Company or such Subsidiary; or



     (b) any other transaction, arrangement or contract with any of its other Affiliates which
would not be entered into by a prudent Person in the position of the Company or such Subsidiary
with, or which is on terms which are less favorable than are obtainable from, any Person which is
not one of its Affiliates;



provided, however, that nothing in this Section shall be construed to restrict the
Company from paying reasonable and customary regular fees to directors of the Company who are not
employees of the Company.



     7.07 Contingent Obligations. The Company shall not, and shall not suffer or permit any
Subsidiary to, create, incur, assume or suffer to exist any Contingent Obligations except:



     (a) endorsements for collection or deposit in the ordinary course of business;



     (b) Permitted Swap Obligations;



     (c) Contingent Obligations of the Company and its Subsidiaries existing as of the Closing Date
and listed in Schedule 7.07;



     (d) Contingent Obligations with respect to Surety Instruments incurred in the ordinary course
of business;



     (e) Guaranty Obligations of the Company with respect to any Indebtedness permitted pursuant to
this Agreement;



     (f) Guaranty Obligations of the Company and its Subsidiaries consisting of payment obligations
incurred in connection with a Permitted Acquisition;



     (g) Guaranty Obligations of the Company consisting of a guarantee by the Company of
obligations of a Subsidiary or by a Subsidiary of obligations of its Subsidiary under any lease or
other agreement otherwise permitted hereunder (including customary performance guarantees under a
Permitted Receivables Purchase Facility) or entered into in the ordinary course of business and, in
each case, not constituting Indebtedness; and



     (h) in addition to other Contingent Obligations permitted hereunder, Contingent Obligations
which do not exceed $10,000,000 in the aggregate at any one time outstanding, provided that to the
extent such Contingent Obligations constitute Indebtedness of a Subsidiary, such Contingent
Obligations, together with Indebtedness of all Subsidiaries of the Company outstanding and
permitted solely under Section 7.05(g), shall not exceed 15% of Consolidated Net Worth.



     7.08 Restricted Payments. The Company shall not, and shall not suffer or permit any
Subsidiary to, (i) declare or make any dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on account of any shares of any class of its
capital stock, or purchase, redeem or otherwise acquire for value any shares of its capital stock
or



Page 83









 







any warrants, rights or options to acquire such shares, now or hereafter outstanding, (ii)
prepay or repay any principal of or make any payment of interest on, or redeem, or set aside any
funds for the payment, prepayment or redemption of, or purchase or otherwise acquire any interest
in, any Subordinated Debt or (iii) make any deposit for any of the foregoing purposes (each of (i),
(ii) or (iii), a “Restricted Payment”) if a Default or Event of Default exists or would
exist after giving effect thereto.



     7.09 ERISA. The Company shall not, and shall not suffer or permit any of its ERISA Affiliates
to: (a) engage in a prohibited transaction or violation of the fiduciary responsibility rules with
respect to any Plan which has resulted or could reasonably be expected to result in liability of
the Company in an aggregate amount in excess of $25,000,000; or (b) engage in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA and which could reasonably be expected to
result in liability of the Company in excess of $25,000,000.



     7.10 Change in Business. The Company shall not, and shall not suffer or permit any Subsidiary
to, engage in any material line of business substantially different from those lines of business
carried on by the Company and its Subsidiaries on the date hereof.



     7.11 Accounting Changes. The Company shall not, and shall not suffer or permit any Subsidiary
to, make any significant change in accounting treatment or reporting practices, except as required
by GAAP, or change the fiscal year of the Company.



     7.12 Modifications, etc. of Subordinated Debt and Related Documents. No Borrower will consent
to any amendment of any subordination or sinking fund provisions or terms of required repayment or
redemption contained in or applicable to any Subordinated Debt or any guaranty thereof (except any
extension in time of any such sinking fund provision or term of required prepayment or redemption).



     7.13 Sale-Leasebacks. The Company shall not, nor shall it permit any of its Subsidiaries to,
directly or indirectly, lease any property as lessee in connection with a Sale and Leaseback
Transaction entered into after the Closing Date, except for (a) Sale and Leaseback Transactions
entered into within 90 days after acquiring the applicable property where the Attributable
Indebtedness with respect to such Sale and Leaseback Transaction and all other outstanding Sale and
Leaseback Transactions permitted pursuant to this subsection (a) does not, together with
Indebtedness permitted under Section 7.05(d), exceed $40,000,000, and (b) other Sale and
Leaseback Transactions where the Attributable Indebtedness, together with Indebtedness secured by
Liens permitted by Section 7.01(o), does not exceed $10,000,000.



     7.14 No Negative Pledges; Subsidiary Payments. The Company will not, and will not permit any
of its Subsidiaries (other than Foreign Subsidiaries in connection with the financings permitted by
Section 7.05(g)) to enter into or suffer to exist any agreement (excepting this Agreement
and any instrument or other Loan Document executed pursuant hereto, the Term Loan Credit Agreement
and any instrument or other loan document executed pursuant thereto, and any agreement governing
Indebtedness permitted to be incurred under Section 7.05(i)) (a) prohibiting the creation
or assumption of any security interest upon its properties or assets, whether now owned or
hereafter acquired or (b) which would restrict the ability of any Subsidiary to pay or make
dividends or distributions, in cash or kind, or to make loans, advances



Page 84









 







or other payments of whatsoever nature, or to make transfers or dispositions of all or part of
its assets, in each case to the Company; provided, however, in the case of a
consensual Lien on assets or property that is permitted pursuant to Section 7.01, the Lien
holder may, solely with respect of the assets or property to which such Lien attaches, contract for
and receive a negative pledge with respect thereto and the proceeds and products thereof.



     7.15 Financial Covenants. The Company shall not:



     (a) Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the end of any
fiscal quarter of the Company to be less than 3.00.



     (b) Leverage Ratio. Permit the Leverage Ratio as of the end of any fiscal quarter of
the Company to be greater than 3.25.



ARTICLE VIII

EVENTS OF DEFAULT




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



     (a) Non-Payment. Any Borrower fails to pay, (i) when and as required to be paid
herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within five (5) days
after the same becomes due, any other interest, fee or any other amount payable hereunder or under
any other Loan Document; or



     (b) Representation or Warranty. Any representation or warranty by any Borrower made
or deemed made herein, in any other Loan Document, or which is contained in any certificate,
document or financial or other statement by the Company, any Subsidiary, or any Responsible
Officer, furnished at any time under this Agreement, or in or under any other Loan Document, is
incorrect in any material respect on or as of the date made or deemed made; or



     (c) Specific Defaults. The Company or any other applicable Borrower fails to perform
or observe any term, covenant or agreement (i) contained in Section 7.01, 7.04,
7.05 or 7.07 and such failure continues unremedied for ten Business Days or (ii)
contained in any of Section 6.03(a) or 6.12 or in any other provision of
Article VII; or



     (d) Other Defaults. The Company or any Subsidiary party thereto fails to perform or
observe any other term or covenant contained in this Agreement or any other Loan Document, and such
default shall continue unremedied for a period of 20 days after the date upon which written notice
thereof is given to the Company by the Administrative Agent or any Lender; or



     (e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment in
respect of any Indebtedness or Contingent Obligation (other than in respect of Swap Contracts),
having an aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit arrangement) of
more than $25,000,000 when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the applicable grace or notice period, if
any, specified in the relevant document on the date of such failure; or (B) fails to perform or
observe any other condition or covenant, or any other event shall occur or



Page 85









 







condition exist, under any agreement or instrument relating to any such Indebtedness or
Contingent Obligation, and such failure continues after the applicable grace or notice period, if
any, specified in the relevant document on the date of such failure if the effect of such failure,
event or condition is to cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause such Indebtedness to be declared to be due and
payable prior to its stated maturity, or such Contingent Obligation to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) or similar event resulting from (1) any event
of default under such Swap Contract as to which the Company or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (2) any Termination Event (as so defined) as to which
the Company or any Subsidiary is an Affected Party (as so defined), and, in either event, the Swap
Termination Value owed by the Company or such Subsidiary as a result thereof is greater than
$25,000,000 in the aggregate; or



     (f) Insolvency; Voluntary Proceedings. Any Borrower or any Material Subsidiary (i)
ceases or fails to be solvent, or generally fails to pay, or admits in writing its inability to
pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) voluntarily ceases to conduct its business in the ordinary course;
(iii) commences any Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or



     (g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is commenced
or filed against any Borrower or any Material Subsidiary, or any writ, judgment, warrant of
attachment, execution or similar process, is issued or levied against a substantial part of any
Borrower’s or any Material Subsidiary’s properties, and any such proceeding or petition shall not
be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not
be released, vacated or fully bonded within 60 days after commencement, filing or levy; (ii) any
Borrower or any Material Subsidiary admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is ordered in
any Insolvency Proceeding; or (iii) any Borrower or any Material Subsidiary acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or
agent therefor), or other similar Person for itself or a substantial portion of its property or
business; or



     (h) ERISA. (i) An ERISA Event or Events shall occur with respect to one or more
Pension Plans or Multiemployer Plans which has resulted in liability of any Borrower under Title IV
of ERISA to such plans or the PBGC in an aggregate amount in excess of $25,000,000; or (ii) the
Company or any ERISA Affiliate shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of $25,000,000; or



     (i) Monetary Judgments. One or more non-interlocutory judgments, non-interlocutory
orders, decrees or arbitration awards is entered against any Borrower or any Subsidiary of the
Company involving in the aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage) as to any



Page 86









 







single or related series of transactions, incidents or conditions, of $10,000,000 or more, and
the same shall remain unsatisfied, unvacated and unstayed pending appeal for a period of 10 days
after the entry thereof; or



     (j) Change of Control. There occurs any Change of Control; or



     (k) Invalidity of Subordination Provisions. The subordination provisions of any
agreement or instrument governing any Subordinated Debt is for any reason revoked or invalidated,
or otherwise cease to be in full force and effect, any Person contests in any manner the validity
or enforceability thereof or denies that it has any further liability or obligation thereunder, or
the Indebtedness hereunder is for any reason subordinated or does not have the priority
contemplated by this Agreement or such subordination provisions; or



     (l) Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect in any material
respect which impairs the Administrative Agent’s rights and remedies hereunder or releases any
Borrower from any of its material obligations hereunder; or any Borrower or any other Person
contests in any manner the validity or enforceability of any Loan Document; or any Borrower denies
that it has any or further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document.



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



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



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



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



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



provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the United States (or
the equivalent in any applicable jurisdiction, including a Borrower being declared bankrupt in any
such jurisdiction), the obligation of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid shall automatically become
due and payable, and the obligation of the Company to Cash Collateralize the L/C Obligations as



Page 87









 







aforesaid shall automatically become effective, in each case without further act of the
Administrative Agent or any Lender.



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



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



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



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



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



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



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



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



ARTICLE IX

THE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent hereunder



Page 88









 







and under the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by
the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the Administrative Agent,
the Lenders and the L/C Issuer, and no Borrower shall have rights as a third party beneficiary of
any of such provisions except as specifically provided in this Article.



     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with the Company or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



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



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



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



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



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by a Borrower, a Lender or the L/C Issuer.



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



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



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



     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Company. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in consultation with the Company,
to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate
of any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that if the Administrative Agent shall
notify the Company and the Lenders that no qualifying Person has



Page 90









 







accepted such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the
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 retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 11.04 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.



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



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



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



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ARTICLE X

CONTINUING GUARANTY




     10.01 Guaranty. The Company hereby absolutely and unconditionally guarantees, as a guaranty
of payment and performance and not merely as a guaranty of collection, prompt payment when due,
whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at
all times thereafter, of any and all of the Obligations, whether for principal, interest, premiums,
fees, indemnities, damages, costs, expenses or otherwise, of the Designated Borrowers to the
Administrative Agent and the Lenders, and whether arising hereunder or under any other Loan
Document, including all renewals, extensions, amendments, refinancings and other modifications
thereof and all costs, attorneys’ fees and expenses incurred by the Administrative Agent and the
Lenders in connection with the collection or enforcement thereof (the “Designated Borrower
Obligations”). The Administrative Agent’s books and records showing the amount of the
Designated Borrower Obligations shall be admissible in evidence in any action or proceeding, and
shall be binding upon the Company, and conclusive for the purpose of establishing the amount of the
Designated Borrower Obligations. This Guaranty shall not be affected by the genuineness, validity,
regularity or enforceability of the Designated Borrower Obligations or any instrument or agreement
evidencing any Designated Borrower Obligations, or by the existence, validity, enforceability,
perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance
relating to the Designated Borrower Obligations which might otherwise constitute a defense to the
obligations of the Company under this Guaranty, and the Company hereby irrevocably waives any
defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.



     10.02 Rights of Lenders. The Company consents and agrees that the Administrative Agent and
the Lenders may, at any time and from time to time, without notice or demand, and without affecting
the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise,
discharge, accelerate or otherwise change the time for payment or the terms of the Designated
Borrower Obligations or any part thereof; and (b) release or substitute one or more of any
endorsers or other guarantors of any of the Designated Borrower Obligations. Without limiting the
generality of the foregoing, the Company consents to the taking of, or failure to take, any action
which might in any manner or to any extent vary the risks of the Company under this Guaranty or
which, but for this provision, might operate as a discharge of the Company.



     10.03 Certain Waivers. The Company waives (a) any defense arising by reason of any disability
or other defense of any Designated Borrower or any other guarantor, or the cessation from any cause
whatsoever (including any act or omission of the Administrative Agent or any Lender) of the
liability of any Designated Borrower; (b) any defense based on any claim that the Company’s
obligations exceed or are more burdensome than those of the Designated Borrowers; (c) the benefit
of any statute of limitations affecting any Designated Borrower’s liability hereunder; (d) any
right to proceed against any Designated Borrower, proceed against or exhaust any security for the
Designated Borrower Obligations, or pursue any other remedy in the power of the Administrative
Agent or any Lender whatsoever; (e) any benefit of and any right to participate in any security now
or hereafter held by the Administrative Agent or any Lender; and (f) to the fullest extent
permitted by law, any and all other defenses or benefits that may be derived from or afforded by
applicable law limiting the liability of or exonerating guarantors or



Page 92









 







sureties. The Company expressly waives all setoffs and counterclaims and all presentments,
demands for payment or performance, notices of acceleration, notice of intent to accelerate,
notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all
other notices or demands of any kind or nature whatsoever with respect to the Designated Borrower
Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or
incurrence of new or additional Designated Borrower Obligations.



     10.04 Obligations Independent. The obligations of the Company hereunder are those of primary
obligor, and not merely as surety, and are independent of the Designated Borrower Obligations and
the obligations of any other guarantor, and a separate action may be brought against the Company to
enforce this Guaranty whether or not any Designated Borrower or any other person or entity is
joined as a party.



     10.05 Subrogation. The Company shall not exercise any right of subrogation, contribution,
indemnity, reimbursement or similar rights with respect to any payments it makes under this
Guaranty until all of the Designated Borrower Obligations and any amounts payable under this
Guaranty have been indefeasibly paid and performed in full and the Aggregate Commitments are
terminated. If any amounts are paid to the Company in violation of the foregoing limitation, then
such amounts shall be held in trust for the benefit of the Administrative Agent and the Lenders and
shall forthwith be paid to the Administrative Agent for the benefit of itself and the Lenders to
reduce the amount of the Designated Borrower Obligations, whether matured or unmatured.



     10.06 Termination; Reinstatement. This Guaranty is a continuing and irrevocable guaranty of
all Designated Borrower Obligations now or hereafter existing and shall remain in full force and
effect until all Designated Borrower Obligations and any other amounts payable under this Guaranty
are indefeasibly paid in full in cash and the Commitments with respect to the Designated Borrower
Obligations are terminated. Notwithstanding the foregoing, this Guaranty shall continue in full
force and effect or be revived, as the case may be, if any payment by or on behalf of any
Designated Borrower or the Company is made, or the Administrative Agent or any of the Lenders
exercises its right of setoff, in respect of the Designated Borrower Obligations and such payment
or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any settlement entered
into by the Administrative Agent or any of the Lenders in their discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief
Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and
whether or not the Administrative Agent or the Lenders are in possession of or have released this
Guaranty and regardless of any prior revocation, rescission, termination or reduction. The
obligations of the Company under this paragraph shall survive termination of this Guaranty.



     10.07 Subordination. The Company hereby subordinates the payment of all obligations and
indebtedness of any Designated Borrower owing to the Company, whether now existing or hereafter
arising, including but not limited to any obligation of any Designated Borrower to the Company as
subrogee of the Administrative Agent and the Lenders or resulting from the Company’s performance
under this Guaranty, to the indefeasible payment in full in cash of all Designated Borrower
Obligations; provided that, unless and until an Event of Default



Page 93









 







under Section 8.01(a), (f) or (g) has occurred and is continuing, the Company
shall be entitled to, and shall not be prohibited by this Section 10.07 from, collecting
and receiving any payment or other distribution on account of any such obligations and indebtedness
owing to the Company. If the Administrative Agent so requests, any such obligation or indebtedness
of any Designated Borrower to the Company shall be enforced and performance received by the Company
as trustee for the Administrative Agent and the Lenders and the proceeds thereof shall be paid over
to the Administrative Agent for the benefit of itself and the Lenders on account of the Designated
Borrower Obligations, but without reducing or affecting in any manner the liability of the Company
under this Guaranty.



     10.08 Stay of Acceleration. If acceleration of the time for payment of any of the Designated
Borrower Obligations is stayed, in connection with any case commenced by or against the Company or
any Designated Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall
nonetheless be payable by the Company immediately upon demand by the Administrative Agent.



     10.09 Condition of Designated Borrower. The Company acknowledges and agrees that it has the
sole responsibility for, and has adequate means of, obtaining from each Designated Borrower and any
other guarantor such information concerning the financial condition, business and operations of
such Designated Borrower and any such other guarantor as the Company requires, and that neither the
Administrative Agent or any Lender has any duty, and the Company is not relying on the
Administrative Agent or any Lender at any time, to disclose to the Company any information relating
to the business, operations or financial condition of such Designated Borrower or any other
guarantor (the Company hereby waiving any duty on the part of the Administrative Agent and the
Lenders to disclose such information and any defense relating to the failure to provide the same).



ARTICLE XI

MISCELLANEOUS




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



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



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



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them)



Page 94









 







hereunder or under any other Loan Document without the written consent of each Lender directly
affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to subsection (v) of the second proviso to this Section 11.01) any
fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to
waive any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate;



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



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



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



and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; (iv) Section 11.06(h) may not be amended, waived or otherwise modified without
the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or other modification; and (v) each Fee Letter may be amended,
or rights or privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender.



     11.02 Notices; Effectiveness; Electronic Communication.



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



Page 95









 






     (i) if to a Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 11.02; and




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


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




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



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



     (c) Change of Address, Etc. Each of the Company, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Company, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.



Page 96









 





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



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



     11.04 Expenses; Indemnity; Damage Waiver.



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



     (b) Indemnification by the Company. Whether or not the transactions contemplated
hereby are consummated, the Company shall indemnify, defend and hold harmless the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of
the foregoing Persons (each, an “Indemnified Person”) from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges,
expenses and disbursements (including all reasonable out-of-pocket fees and




Page 97












 




disbursements of any law firm or other external counsel, the allocated costs of internal legal
services and all disbursements of internal counsel) of any kind or nature whatsoever, including,
without limitation, any civil penalty or fine assessed by OFAC, which may at any time (including at
any time following repayment of the Loans and the termination, resignation or replacement of the
Administrative Agent or replacement of any Lender) be imposed on, incurred by or asserted against
any such Person in any way relating to or arising out of this Agreement or any Loan Document, or
the transactions contemplated hereby, or any action taken or omitted by any such Person under or in
connection with any of the foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding) related to or arising out
of this Agreement or the Loans or the use of the proceeds thereof, or related to any Alternative
Currency transactions entered into in connection herewith, whether or not any Indemnified Person is
a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”);
provided, that the Company shall have no obligation hereunder to any Indemnified Person
with respect to Indemnified Liabilities to the extent resulting from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section shall survive the
termination of the Commitments and payment of all other Obligations.




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

Section 2.13(d).



     (d) Unintended Recipients. Subject to Section 11.07, no Indemnified Person
referred to in subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except to
the extent such damages result from the gross negligence or willful misconduct of such Indemnified
Person.



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



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



Page 98









 





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



     11.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of
this Section, (iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section, or (iv) to an SPC in accordance with the provisions
of subsection (h) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.



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




     (i) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to
a Lender or an Affiliate of a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the



Page 99









 







Commitment is not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the Administrative Agent or,
if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall
not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Company otherwise consents (each such consent
not to be unreasonably withheld or delayed);




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




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




     (iv) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrowers (at the Company’s expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the



Page 100









 







contrary. The Register shall be available for inspection by each of the Borrowers and the L/C
Issuer at any reasonable time and from time to time upon reasonable prior notice. In addition, at
any time that a request for a consent for a material or substantive change to the Loan Documents is
pending, any Lender wishing to consult with other Lenders in connection therewith may request and
receive from the Administrative Agent a copy of the Register.



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



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 11.01 that affects such Participant. Subject to subsection (e) of this Section,
each Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 11.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.14 as
though it were a Lender.



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



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



Page 101









 





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



     (h) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Company (an “SPC”) the option to provide all or any part of
any Committed Loan that such Granting Lender would otherwise be obligated to make pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to
fund any Committed Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails
to make all or any part of such Committed Loan, the Granting Lender shall be obligated to make such
Committed Loan pursuant to the terms hereof or, if it fails to do so, to make such payment to the
Administrative Agent as is required under Section 2.13(b)(ii). Each party hereto hereby
agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall
increase the costs or expenses or otherwise increase or change the obligations of the Borrowers
under this Agreement (including its obligations under Section 3.04), (ii) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for which a Lender
would be liable (it being understood that the Granting Lender shall remain liable for such
amounts), and (iii) the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document, remain the lender of
record hereunder. The making of a Committed Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Committed Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other senior debt of any SPC,
it will not institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of
the United States or any State thereof. Notwithstanding anything to the contrary contained herein,
any SPC may (i) with notice to, but without prior consent of the Company and the Administrative
Agent and without paying any processing fee therefor, assign all or any portion of its right to
receive payment with respect to any Committed Loan to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of Committed Loans to any
rating agency, commercial paper dealer or provider of any surety or guarantee or credit or
liquidity enhancement to such SPC.



     (i) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’
notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the
Company, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing
Line Lender, the Company shall be entitled to appoint from



Page 102









 







among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Company to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of
America resigns as L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.04(c)). If Bank of America resigns as Swing Line Lender, it
shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing
Line Loans made by it and outstanding as of the effective date of such resignation, including the
right to require the Lenders to make Base Rate Committed Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.05(c).



     11.07 Treatment of Certain Information; Confidentiality. Each Lender agrees to take and to
cause its Affiliates to take normal and reasonable precautions and exercise due care to maintain
the confidentiality of all information identified as “confidential” or “secret” by the Company and
provided to it by the Company or any Subsidiary, or by the Administrative Agent on the Company’s or
such Subsidiary’s behalf, under this Agreement or any other Loan Document, and neither it nor any
of its Affiliates shall use any such information other than in connection with or in enforcement of
this Agreement and the other Loan Documents or in connection with other business now or hereafter
existing or contemplated with the Company or any Subsidiary; except to the extent such information
(i) was or becomes generally available to the public other than as a result of disclosure by the
Lender, or (ii) was or becomes available on a non-confidential basis from a source other than the
Company, provided that such source is not bound by a confidentiality agreement with the Company
known to the Lender; provided, however, that any Lender may disclose such
information (A) at the request or pursuant to any requirement of any Governmental Authority to
which the Lender is subject or in connection with an examination of such Lender by any such
authority; (B) pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the Administrative Agent, any
Lender or their respective Affiliates may be party; (E) to the extent reasonably required in
connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such
Lender’s independent auditors and other professional advisors; (G) to any Participant or Eligible
Assignee, actual or potential, provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Lenders hereunder; (H) as to any Lender or its
Affiliate, as expressly permitted under the terms of any other document or agreement regarding
confidentiality to which the Company or any Subsidiary is party or is deemed party with such Lender
or such Affiliate; (I) to its Affiliates, provided such Affiliate agrees to use such information
solely in connection with this Agreement and agrees in writing to keep such information
confidential; and (J) to any actual or proposed counterparty (or its advisors) to any swap or
derivative transaction relating to a Borrower and its obligations (with the consent of the Company,
such consent not to be unreasonably withheld or delayed, if such counterparty is not a commercial
bank), provided that such Person agrees in writing to keep such information confidential to the
same extent required of the Lenders hereunder. 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



Page 103









 







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.



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



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



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



Page 104









 





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



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



     11.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if any Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, if any Lender is a
Defaulting Lender or has been a Defaulting Lender more than twice in the last 6 months or exercises
its rights under Section 3.02 or if any other circumstance exists hereunder that gives the
Company the right to replace a Lender as a party hereto, then the Company may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign
and delegate, without recourse (in accordance with and subject to the restrictions contained in,
and consents required by, Section 11.06), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:



     (a) the Company shall have paid (or caused a Designated Borrower to pay) to the Administrative
Agent the assignment fee specified in Section 11.06(b);



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



     (c) in the case of any such assignment resulting from a Lender exercising its rights under
Section 3.02, a claim for compensation under Section 3.04 or payments required to
be made pursuant to Section 3.01, such assignment will result in a reduction in such
compensation or payments thereafter; and



Page 105









 





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



     11.14 Governing Law; Jurisdiction; Etc.



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



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



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



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     11.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT



Page 106









 







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



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



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



     11.18 Entire Agreement. This Agreement and the other Loan Documents represent the final
agreement among the parties and may not be contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements of the parties. There are no unwritten oral agreements among the
parties.




Page 107









 









SCHEDULE 11.02




ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES




	 	 	 
	COMPANY/BORROWERS:	 	ADMINISTRATIVE AGENT ACCOUNT INFORMATION:
	 
	IDEX Corporation
	 	 
	630 Dundee Road, Suite 400

	 	Account No. (for Dollars): 3570836479
	Northbrook, Illinois 60062

	 	Ref: Idex, Attn: Credit Services
	Attention: Douglas C. Lennox, Frank J, Notaro,

	 	ABA# 026-009-593
	Dominic A. Romeo
	 	 
	Telephone: (847) 498-7070

	 	Account No. (for Euro): 65280019
	Telecopier: (847) 498-9123

	 	Ref: Idex
	Electronic Mail: dlennox@idexcorp.com,

	 	Swift Address: BOFAGB22
	fnotaro@idexcorp.com;dromeo@idexcorp.com
	 	 
	Website Address: www.idexcorp.com

	 	Account No. (for Sterling): 65280027
	 

	 	Ref: Idex
	ADMINISTRATIVE AGENT:

	 	London Sort Code: 16-50-50
	 

	 	Swift Address: BOFAGB22
	Administrative Agent’s Office
	 	 
	(for payments and Requests for Credit Extensions):

	 	Account No. (for Yen): 606490661046
	Bank of America, N.A.

	 	(Bank of America, Tokyo)
	Building B

	 	Ref: Idex
	2001 Clayton Road

	 	Swift Address: BOFAJPJX
	Mail Code: CA702-02-25
	 	 
	Concord, CA 94520-2405

	 	Account No. (for Swiss Francs):
	Attention: Anna Marie Finn

	 	601490661012 (Bank of America, Geneva)
	Phone: (925) 675-8312

	 	Ref: Idex
	Fax: (888) 969-9238

	 	Swift Address: BOFACH2X
	Electronic Mail: anna.m.finn@bankofamerica.com
	 	 
	Other Notices as Administrative Agent:

	 	Account No. (for Canadian Dollars):
	Bank of America N.A.

	 	711465003220 (Bank of America Canada
	Building B

	 	(Transit # 01312), Toronto)
	2001 Clayton Road

	 	Ref: Idex
	Mail Code: CA702-02-25

	 	Swift Address: BOFACATT
	Concord, CA 94520-2405
	 	 
	Attention: Anna Marie Finn
	 	 
	Phone: (925) 675-8312
	 	 
	Fax: (888) 969-9238
	 	 
	Electronic Mail: anna.m.finn@bankofamerica.com
	 	 






Schedule 11.02

Page 1





 









 








L/C ISSUER:




Bank of America, N.A.

Trade Operations-Los Angeles #22621

333 South Beaudry Avenue, 19th Floor

Mail Code: CA9-703-19-23

Los Angeles, California 90017-1466

Attention: Sandra Leon, Vice President

Telephone: (213) 345-5231

Telecopier: (213) 345-0265

Electronic Mail: Sandra.Leon@bankofamerica.com




SWING LINE LENDER:




Bank of America, N.A.

Building B

2001 Clayton Road

Mail Code: CA702-02-25

Concord, CA 94520-2405

Attention: Anna Marie Finn

Phone: (925) 675-8312

Fax: (888) 969-9238

Electronic Mail: anna.m.finn@bankofamerica.com




Schedule 11.02

Page 2





 









 








EXHIBIT A




FORM OF COMMITTED LOAN NOTICE




Date:                    




To: Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Credit Agreement, dated as of December
21, 2006 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Agreement”; the terms defined therein being used herein as therein defined),
among IDEX Corporation, a Delaware corporation (the “Company”), the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.



     The Company hereby requests, on behalf of itself or, if applicable, the Designated Borrower
referenced in item 6 below (select one):



     o A Borrowing of Committed Loans            o A conversion or continuation of Loans




	 	1.	 	On (a Business Day).
	 
	 	2.	 	In the amount of                                         .
	 
	 	3.	 	Comprised of                                                             
	 
	 	 	 	                      [Type of Committed Loan requested]2
	 
	 	4.	 	In the following currency:                                        .
	 
	 	5.	 	For Eurocurrency Rate Loans: with an Interest Period of                      months.
	 
	 	6.	 	On behalf of                                                              [Insert name of applicable
Designated Borrower].





     The Committed Borrowing, if any, requested herein complies with the provisos to the first
sentence of Section 2.01 of the Agreement.



	 	 	 	 	 
	 	IDEX CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	2	 	Base Rate Loan, Eurocurrency Rate Loan or Eurocurrency
Rate Committed Loan in Same Day Funds.





C - 1

Form of Swing Line Loan Notice





 









 








EXHIBIT D




FORM OF NOTE




                                        





     FOR VALUE RECEIVED, the undersigned (each a “Borrower” and, collectively, the
“Borrowers”), hereby promises to pay to                      or registered assigns (the
“Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of each Loan from time to time made by the Lender to it under that certain Amended
and Restated Credit Agreement, dated as of December 21, 2006 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms
defined therein being used herein as therein defined), among the Company, the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.



     Each Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. Except as otherwise provided in Section 2.05(f) of the
Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in the currency in which such Committed Loan
was denominated and in Same Day Funds at the Administrative Agent’s Office for such currency. If
any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be
paid upon demand, from the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement. Notwithstanding
anything to the contrary contained herein the Obligations of each Designated Borrower hereunder are
several and not joint and several.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. Upon the occurrence and continuation of one or more of the Events of Default specified in
the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall
be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also attach schedules to this Note and endorse thereon the date,
amount, currency and maturity of its Loans and payments with respect thereto.



     Each Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



[signature page follows]




D - 1

Form of Note





 









 








     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS.



	 	 	 	 	 
	 	[IDEX CORPORATION]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 
	 	 	Title:  	 	 
	 
	 	[DESIGNATED BORROWER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 
	 	 	Title:  	 	 
	 



D - 2

Form of Note





 









 








LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Currency	 	 	 	Amount of	 	Outstanding	 	 
	 	 	 	 	and	 	End of	 	Principal or	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	Interest Paid	 	Balance	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	This Date	 	This Date	 	Made By
	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 





D - 3

Form of Note





 









 








EXHIBIT E




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                    





			
	To:	 	Bank of America, N.A., as Administrative Agent





Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Credit Agreement, dated as of December
21, 2006 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Agreement;” the terms defined therein being used herein as therein defined),
among IDEX Corporation, a Delaware corporation (the “Company”), the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                     of the Company, and that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the behalf of the Company, and that:



[Use following paragraph 1 for fiscal year-end financial statements]




     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the Company ended as of
the above date, together with the report and opinion of an independent certified public accountant
required by such section.



[Use following paragraph 1 for fiscal quarter-end financial statements]




     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Company ended as of the
above date. Such financial statements fairly present the financial condition, results of
operations and cash flows of the Company and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Company during the accounting period covered by the
attached financial statements.



     3. A review of the activities of the Company during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period the
Company performed and observed all its Obligations under the Loan Documents, and



[select one:]




     [to the best knowledge of the undersigned during such fiscal period, the Company performed and
observed each covenant and condition of the Loan Documents applicable to it.]



E - 1

Form of Compliance Certificate




 









 








—or—




     [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]



     4. The representations and warranties of the Borrowers contained in Article V of the
Agreement, and any representations and warranties of the Borrowers that are contained in any
document furnished at any time under or in connection with the Loan Documents, are true and correct
on and as of the date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Compliance Certificate, the representations and
warranties contained in Section 5.11(a) of the Agreement shall be deemed to refer to the
most recent statements furnished pursuant to Section 6.01(a) and (b) of the
Agreement, including the statements in connection with which this Compliance Certificate is
delivered.



     5. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
                                        .



	 	 	 	 	 
	 	IDEX CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 
	 	 	Title:  	 	 
	 



E - 2

Form of Compliance Certificate




 









 








SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




For the Quarter/Year Ended                     




	 	 	 	 	 
	I. Section 7.15(a) — Interest Coverage Ratio.
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated EBITDA for four consecutive fiscal quarters ending on above date
(“Subject Period”):
	 	 	 	 
	 
	 	 	 	 
	1. Consolidated Net Income for Subject Period:
	 	$	                    	 
	 
	 	 	 	 
	2. Consolidated interest expenses for Subject Period:
	 	$	                    	 
	 
	 	 	 	 
	3. Provision for income taxes for Subject Period:
	 	$	                    	 
	 
	 	 	 	 
	4. Interest component for Off Balance Sheet Obligations for Subject Period:
	 	$	                    	 
	 
	 	 	 	 
	5. Depreciation expenses for Subject Period:
	 	$	                    	 
	 
	 	 	 	 
	6. Amortization expenses for Subject Period:
	 	$	                    	 
	 
	 	 	 	 
	7. Consolidated EBITDA (Lines II.A1 + 2 + 3 + 4 + 5 + 6):
	 	$	                    	 
	 
	 	 	 	 
	B. Consolidated Interest Expense for Subject Period:
	 	$	                    	 
	 
	 	 	 	 
	C. Consolidated Interest Coverage Ratio (Line I.A.7  ̧ Line I.B):
	 	                     to 1
	 
	 	 	 	 
	Minimum required: 3.00 to 1
	 	 	 	 
	 
	 	 	 	 
	II. Section 7.15(b) — Leverage Ratio.
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated Debt at Statement Date:
	 	$	                    	 
	 
	 	 	 	 
	B. Consolidated EBITDA for Subject Period (Line I.A.7 above):
	 	$	                    	 
	 
	 	 	 	 
	C. Consolidated Leverage Ratio (Line II.A  ̧ Line II.B):
	 	                     to 1
	 
	 	 	 	 
	Maximum permitted: _____ to 1
	 	 	 	 






E - 3

Form of Compliance Certificate




 









 








EXHIBIT F




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (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 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 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, without limitation, the Letters of Credit and
the Swing Line Loans included in such facilities3) 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, but not limited to, 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 [identify Lender]4]	 	 
	 
	 	 	 	 	 	 
	3.

	 	Borrower(s):	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	4.	 	Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit
Agreement
	 
	 	 	 	 	 	 
	5.	 	Credit Agreement: Amended and Restated Credit Agreement, dated as of December 21, 2006 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time,
the “Agreement;” the terms defined therein being used herein as therein defined), among IDEX








 




			
	3	 	Include all applicable subfacilities.
	 
	4	 	Select as applicable.





F - 1

Form of Assignment and Assumption





 









 










	 	 	Corporation, a Delaware corporation (the “Company”), the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.
	 
	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	 	Amount of	 	 	Percentage	 	 	 	 
	Facility	 	Commitment	 	 	Commitment	 	 	Assigned of	 	 	 	 
	Assigned	 	for all Lenders*	 	 	Assigned*	 	 	Commitment5	 	 	CUSIP Number	 
	 
	 	$ 
	 	 	$ 
	 	 	 	%	 	 	 	 	 
	 
	 	$ 
	 	 	$ 
	 	 	 	%	 	 	 	 	 





[7.    Trade Date:                                         ]6



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:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 	ASSIGNEE




[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	5	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.
	 
	6	 	To be completed if the Assignor and the Assignee
intend that the minimum assignment amount is to be determined as of the Trade
Date.





F - 2

Form of Assignment and Assumption




 









 








	 	 	 	 	 
	[Consented to and]7 Accepted:	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A., as	 	 
	  Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	[Consented to:]8	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 








 




			
	7	 	To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement.
	 
	8	 	To be added only if the consent of the Company and/or
other parties (e.g. Swing Line Lender, L/C Issuer) is required by the terms of
the Credit Agreement.





F - 3

Form of Assignment and Assumption




 









 








ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




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 any Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by any Borrower, 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 meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit Agreement), (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 6.01 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) if it is a Foreign Lender, attached hereto 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 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





F - 4

Form of Assignment and Assumption



 









 







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 Illinois.




F - 5

Form of Assignment and Assumption




 









 








EXHIBIT G




FORM OF DESIGNATED BORROWER

REQUEST AND ASSUMPTION AGREEMENT




Date:
                    ,       




To:    Bank of America, N.A., as Administrative Agent




     Ladies and Gentlemen:



     This Designated Borrower Request and Assumption Agreement is made and delivered pursuant to
Section 2.18 of that certain Amended and Restated Credit Agreement, dated as of December
21, 2006 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Credit Agreement”), among IDEX Corporation, a Delaware corporation (the
“Company”), the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender, and reference is made thereto for full
particulars of the matters described therein. All capitalized terms used in this Designated
Borrower Request and Assumption Agreement and not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement.



     Each of                                          (the “Designated Borrower”) and the Company hereby
confirms, represents and warrants to the Administrative Agent and the Lenders that the Designated
Borrower is a Subsidiary of the Company.



     The documents required to be delivered to the Administrative Agent under Section 2.18
of the Credit Agreement will be furnished to the Administrative Agent in accordance with the
requirements of the Credit Agreement.



     The true and correct unique identification number that has been issued to the Designated
Borrower by its jurisdiction of organization and the name of such jurisdiction are set forth below:



	 	 	 
	Identification Number
	 	Jurisdiction of Organization
	 
	 	 





     The parties hereto hereby confirm that with effect from the date of the Designated Borrower
Notice for the Designated Borrower, the Designated Borrower shall have obligations, duties and
liabilities toward each of the other parties to the Credit Agreement identical to those which the
Designated Borrower would have had if the Designated Borrower had been an original party to the
Credit Agreement as a Borrower. Effective as of the date of the Designated Borrower Notice for the
Designated Borrower, the Designated Borrower confirms its acceptance of, and consents to, all
representations and warranties, covenants, and other terms and provisions of the Credit Agreement.



G - 1

Form of Designated Borrower Request and Assumption Agreement




 









 








     The parties hereto hereby request that the Designated Borrower be entitled to receive Loans
under the Credit Agreement, and understand, acknowledge and agree that neither the Designated
Borrower nor the Company on its behalf shall have any right to request any Loans for its account
unless and until the date five Business Days after the effective date designated by the
Administrative Agent in a Designated Borrower Notice delivered to the Company and the Lenders
pursuant to Section 2.18 of the Credit Agreement.



     The parties hereto hereby agree that (a) each reference to a “Borrower” or the “Borrowers” in
the Credit Agreement and the other Loan Documents shall include the Designated Borrower and (b)
“Credit Agreement” or “Agreement” as used therein shall mean the Credit Agreement as supplemented
hereby.



     The Designated Borrower hereby acknowledges that it has received a copy of the Loan Documents
and that it has read and understands the terms thereof and agrees to be bound by the terms of the
Loan Documents to which it is a party.



     This Designated Borrower Request and Assumption Agreement shall constitute a Loan Document
under the Credit Agreement.



     THIS DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.



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



	 	 	 	 	 
	 	 	[DESIGNATED BORROWER]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	IDEX CORPORATION
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





G - 2

Form of Designated Borrower Request and Assumption Agreement





 









 








EXHIBIT H




FORM OF DESIGNATED BORROWER NOTICE




Date:
                    ,
      





			
	To:	 	[Company]





     The Lenders party to the Credit Agreement referred to below



     Ladies and Gentlemen:



     This Designated Borrower Notice is made and delivered pursuant to Section 2.18 of that
certain Amended and Restated Credit Agreement, dated as of December 21, 2006 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Credit
Agreement”), among IDEX Corporation, a Delaware corporation (the “Company”), the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender, and reference is made thereto for full particulars of the matters
described therein. All capitalized terms used in this Designated Borrower Notice and not otherwise
defined herein shall have the meanings assigned to them in the Credit Agreement.



     The Administrative Agent hereby notifies Company and the Lenders that effective as of the date
hereof [                                        ] shall be a Designated Borrower and may receive Loans for its
account on the terms and conditions set forth in the Credit Agreement.



     This Designated Borrower Notice shall constitute a Loan Document under the Credit Agreement.



	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,

as Administrative Agent
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





H - 1

Form of Designated Borrower Notice