EX-10.1



 





EXHIBIT 10.1














[Published CUSIP Number:_______________]




CREDIT AGREEMENT




Dated as of August 30, 2004




among


BARR PHARMACEUTICALS, INC.,




as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,




JPMORGAN CHASE BANK,

as Syndication Agent,




and

The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC,

and

J.P. MORGAN SECURITIES INC.

as

Co-Lead Arranger and Co-Book Manager














 









 












TABLE OF CONTENTS




	 	 	 	 	 
	Section
	 	Page

	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	20	 
	1.03 Accounting Terms
	 	 	21	 
	1.04 Rounding
	 	 	22	 
	1.05 Times of Day
	 	 	22	 
	1.06 Letter of Credit Amounts
	 	 	22	 
	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	23	 
	2.01 Committed Loans
	 	 	23	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	23	 
	2.03 Letters of Credit
	 	 	25	 
	2.04 Swing Line Loans
	 	 	33	 
	2.05 Prepayments
	 	 	36	 
	2.06 Termination or Reduction of Commitments
	 	 	37	 
	2.07 Repayment of Loans
	 	 	7	 
	2.08 Interest
	 	 	38	 
	2.09 Fees
	 	 	38	 
	2.10 Computation of Interest and Fees
	 	 	39	 
	2.11 Evidence of Debt
	 	 	39	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	40	 
	2.13 Sharing of Payments by Lenders
	 	 	42	 
	2.14 Increase in Commitments
	 	 	42	 
	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	44	 
	3.01 Taxes
	 	 	44	 
	3.02 Illegality
	 	 	46	 
	3.03 Inability to Determine Rates
	 	 	46	 
	3.04 Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	46	 
	3.05 Compensation for Losses
	 	 	48	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	49	 
	3.07 Survival
	 	 	49	 
	 
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	49	 
	4.01 Conditions of Initial Credit Extension
	 	 	49	 
	4.02 Conditions to all Credit Extensions
	 	 	51	 
	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	52	 
	5.01 Existence, Qualification and Power; Compliance with Laws
	 	 	52	 
	5.02 Authorization; No Contravention
	 	 	53	 
	5.03 Governmental Authorization; Other Consents
	 	 	53	 
	5.04 Binding Effect
	 	 	53	 







i









 






	 	 	 	 	 
	Section
	 	Page

	5.05 Financial Statements; No Material Adverse Effect
	 	 	53	 
	5.06 Litigation
	 	 	54	 
	5.07 No Default
	 	 	54	 
	5.08 Ownership of Property; Liens
	 	 	55	 
	5.09 Environmental Compliance
	 	 	55	 
	5.10 Insurance
	 	 	55	 
	5.11 Taxes
	 	 	55	 
	5.12 ERISA Compliance
	 	 	55	 
	5.13 Subsidiaries; Equity Interests
	 	 	56	 
	5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act
	 	 	56	 
	5.15 Disclosure
	 	 	57	 
	5.16 Compliance with Laws
	 	 	57	 
	5.17 Intellectual Property; Licenses, Etc.
	 	 	57	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	58	 
	6.01 Financial Statements
	 	 	58	 
	6.02 Certificates; Other Information
	 	 	59	 
	6.03 Notices
	 	 	60	 
	6.04 Payment of Obligations
	 	 	61	 
	6.05 Preservation of Existence, Etc.
	 	 	61	 
	6.06 Maintenance of Properties
	 	 	61	 
	6.07 Maintenance of Insurance
	 	 	62	 
	6.08 Compliance with Laws and Contractual Obligations
	 	 	62	 
	6.09 Books and Records
	 	 	62	 
	6.10 Inspection Rights
	 	 	62	 
	6.11 Use of Proceeds
	 	 	62	 
	6.12 Additional Guarantors
	 	 	63	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	63	 
	7.01 Liens
	 	 	63	 
	7.02 Investments
	 	 	65	 
	7.03 Non-Loan Party Indebtedness
	 	 	66	 
	7.04 Fundamental Changes
	 	 	67	 
	7.05 [Intentionally Omitted.]
	 	 	68	 
	7.06 Restricted Payments
	 	 	68	 
	7.07 Change in Nature of Business
	 	 	68	 
	7.08 Transactions with Affiliates
	 	 	68	 
	7.09 Burdensome Agreements
	 	 	69	 
	7.10 Use of Proceeds
	 	 	70	 
	7.11 Financial Covenants
	 	 	70	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
	 	 	71	 
	8.01 Events of Default
	 	 	71	 
	8.02 Remedies Upon Event of Default
	 	 	73	 
	8.03 Application of Funds
	 	 	74	 







ii









 






	 	 	 	 	 
	Section
	 	Page

	ARTICLE IX ADMINISTRATIVE AGENT
	 	 	75	 
	9.01 Appointment and Authority
	 	 	75	 
	9.02 Rights as a Lender
	 	 	75	 
	9.03 Exculpatory Provisions
	 	 	75	 
	9.04 Reliance by Administrative Agent
	 	 	76	 
	9.05 Delegation of Duties
	 	 	77	 
	9.06 Resignation of Administrative Agent
	 	 	77	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	78	 
	9.08 No Other Duties, Etc.
	 	 	78	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	78	 
	9.10 Guaranty Matters
	 	 	79	 
	 
	ARTICLE X MISCELLANEOUS
	 	 	79	 
	10.01 Amendments, Etc.
	 	 	79	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	81	 
	10.03 No Waiver; Cumulative Remedies
	 	 	82	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	82	 
	10.05 Payments Set Aside
	 	 	84	 
	10.06 Successors and Assigns
	 	 	85	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	89	 
	10.08 Right of Setoff
	 	 	89	 
	10.09 Interest Rate Limitation
	 	 	90	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	90	 
	10.11 Survival of Representations and Warranties
	 	 	90	 
	10.12 Severability
	 	 	91	 
	10.13 Replacement of Lenders
	 	 	91	 
	10.14 Governing Law; Jurisdiction; Etc.
	 	 	92	 
	10.15 Waiver of Jury Trial
	 	 	93	 
	10.16 USA PATRIOT Act Notice
	 	 	93	 
	 
	ARTICLE XI GUARANTY
	 	 	93	 
	11.01 The Guaranty
	 	 	93	 
	11.02 Obligations Unconditional
	 	 	94	 
	11.03 Reinstatement
	 	 	95	 
	11.04 Certain Additional Waivers
	 	 	95	 
	11.05 Remedies
	 	 	95	 
	11.06 Rights of Contribution
	 	 	96	 
	11.07 Guarantee of Payment; Continuing Guarantee
	 	 	96	 







iii









 






SCHEDULES




	 	 	 
	1.01 (a)

	 	Existing Letters of Credit
	2.01

	 	Commitments and Applicable Percentages
	5.06

	 	Litigation
	5.13

	 	Subsidiaries; Other Equity Investments
	7.01

	 	Existing Liens
	7.02

	 	Existing Investments
	7.03

	 	Existing Indebtedness
	7.08

	 	Existing Affiliate Transactions
	7.09

	 	Burdensome Agreements
	10.02

	 	Administrative Agent’s Office; Certain Addresses for Notices







EXHIBITS




	 	 	 
	

	 	Form of
	A

	 	Committed Loan Notice
	B

	 	Swing Line Loan Notice
	C

	 	Note
	D

	 	Compliance Certificate
	E

	 	Assignment and Assumption
	F

	 	Investment Guidelines








iv









 




CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of August 30, 2004,
among Barr Pharmaceuticals, Inc., a Delaware corporation (the
“Borrower”), certain of the
Subsidiaries of the Borrower (individually a “Guarantor” and collectively
the “Guarantors”), each
lender from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”).
JPMORGAN CHASE BANK, as syndication agent (the “Syndication Agent”), and
BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.



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



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



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms.



     As used in this Agreement, the following terms shall have the meanings
set forth below:



     “Acquisition”, by any Person, means the acquisition by such Person of (i)
all or substantially
all of the Equity Interests in, or the Property of, another Person, or
(ii) any product line or segment
of business or division (including, without limitation, the acquisition of
rights, production or
distribution of a product or product line) of a Person, whether or not
involving a merger or
consolidation with such Person.



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



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



     “Affiliate” 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.



 









 






     “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 the following percentages per annum, based upon
the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by
the Administrative Agent pursuant to Section 6.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Applicable Rate	 	Applicable Rate	 	 
	Pricing	 	Consolidated	 	 	 	 	 	for Base Rate	 	for Eurodollar	 	Letter of
	Level
	 	Leverage Ratio
	 	Facility Fee
	 	Loans
	 	Loans
	 	Credit Fee

	1
	 	Less than or	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	equal to 0.75 to	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	1.00	 	 	17.5 bps	 	0.00 bps	 	57.5 bps	 	57.5 bps
	2
	 	Less than or	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	equal to 1 .50 to	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	1.00 but greater	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	than 0.75 to 1.00	 	20.0 bps	 	0.00 bps	 	80.0 bps	 	80.0 bps
	3
	 	Less than or	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	equal to 2.25 to	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	1.00 but greater	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	than 1.50 to 1.00	 	25.0 bps	 	0.00 bps	 	100.0 bps	 	100.0bps
	4
	 	Greater than 2.25	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	to 1.00	 	35.0 bps	 	15.0bps	 	115.0bps	 	115.0bps







     Any increase or decrease in the Applicable Rate resulting from a change
in the
Consolidated Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is delivered and shall
continue to apply until the first
Business Day immediately following the date a new Compliance Certificate
is delivered in
accordance with Section 6.02(b) whereupon the Applicable Rate shall be
adjusted based upon the calculation of the Consolidated Leverage Ratio contained in such new
Compliance
Certificate; provided, however, that if a Compliance Certificate is not
delivered when due in
accordance with such Section, then Pricing Level 4 shall apply as of the
first Business Day after
the date on which such Compliance Certificate was required to have been
delivered until the first
Business Day immediately following the date a new Compliance Certificate
is delivered. The
Applicable Rate in effect from the Closing Date through the earlier of
(a) November 15, 2004
and (b) the date a Compliance Certificate is delivered for the fiscal
quarter ending September 30,
2004 shall be determined based upon Pricing Level 1.



2









 





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



     “Arrangers” means Bane of America Securities LLC and J.P. Morgan
Securities Inc., in
their capacity as co-lead arrangers and co-book managers.



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



     “Attributable Indebtedness” means, 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, and (b) in respect of
any Synthetic Lease
Obligation, 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.



     “Audited Financial Statements” means the audited consolidated balance
sheet of the
Borrower and its Subsidiaries for the fiscal year ended June 30, 2004,
and the related
consolidated statements of income or operations, shareholders’ equity and
cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes
thereto.



     “Availability Period” means the period from and including the Closing
Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments
pursuant to Section 2.06. 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.



     “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.



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



3









 





     “Borrowing” means a Committed 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 is located and, if such day
relates to any Eurodollar
Rate Loan, means any such day on which dealings in Dollar deposits are
conducted by and
between banks in the London interbank eurodollar market.



     “Cash Collateralize” has the meaning specified in Section 2.03(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 an event or series of events by which:




            (a) any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan
of such person or its subsidiaries, and any person or entity acting in its capacity as
trustee,
agent or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire (such right, an “option
right”), whether such right is exercisable immediately or only after the passage of time),
directly or indirectly, of 30% or more of the equity securities of the Borrower entitled to
vote for members of the board of directors or equivalent governing body of the Borrower
on a fully-diluted basis (and taking into account all such securities that such person or
group has the right to acquire pursuant to any option right);




            (b) during any period of 12 consecutive months, a majority of the members of
the board of directors or other equivalent governing body of the Borrower cease to be
individuals (i) who were members of that board or equivalent governing body on the first
day of such period, (ii) whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause (i) above constituting
at the time of such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a member of that
board or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more directors by



4









 






any person or group other than a solicitation for the election of one or more directors by
or on behalf of the board of directors); or



     (c) any Person or two or more Persons acting in concert shall have acquired
by contract or otherwise, or shall have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or policies of the
Borrower, or control over the equity securities of the Borrower entitled to vote for
members of the board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such Person or group
has the right to acquire pursuant to any option right) representing 30% or more of the
combined voting power of such securities.



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



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the 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 and, in the case of Eurodollar Rate 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 Eurodollar
Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit A.



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



     “Consolidated Assets” means, at any date, the consolidated assets of the Borrower and its
Subsidiaries as of such date, as determined in accordance with GAAP.



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income



5









 





taxes (including franchise taxes imposed in lieu thereof) payable by the Borrower and its
Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) write-offs
(including, without limitation, write-offs and write-downs of acquired in-process research and
development in connection with Acquisitions and any write-off of deferred financing costs in
connection with the prepayment or repurchase of Indebtedness prior to the maturity thereof), (v)
other non-cash charges and expenses of the Borrower and its Subsidiaries reducing such
Consolidated Net Income (including, without limitation, non-cash restructuring charges and
expenses and compensation expenses realized for grants of performance shares, stock options,
stock purchase rights or other rights to officers, directors and employees of the Borrower or any
Subsidiary), (vi) extraordinary expense items (including extraordinary litigation or claim
settlement charges or expenses) for such period and the tax consequences thereof, (vii) one-time
cash expenses incurred in connection with the making of any Investment (including any
Acquisition), the incurrence of Indebtedness or the offering of Equity Interests, in each case not
prohibited by this Agreement, whether or not the applicable transaction is consummated and
(viii) for the fiscal quarter ended June 30, 2004, up to $68,200,000 of litigation or claim
settlement charges or expenses with respect to that certain arbitration award in favor of Solvay
Pharmaceuticals Inc. as described in the press release issued by the Borrower on or about June
17, 2004 and minus (b) the following to the extent included in calculating such Consolidated Net
Income: (i) Federal, state, local and foreign income tax credits of the Borrower and its
Subsidiaries for such period, (ii) all non-cash items increasing Consolidated Net Income for such
period, (iii) extraordinary items of income (other than the proceeds of business interruption
insurance and the proceeds from patent challenge settlements) for such period and the tax
consequences thereof and (iv) any cash payments with respect to the charges and expenses
excluded pursuant to clause (a)(iv).




     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including
Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments, (b) the outstanding principal amount of all purchase
money Indebtedness, (c) the face amount of all outstanding letters of credit (including standby
and commercial, but excluding letters of credit supporting the purchase of goods in the ordinary
course of business and expiring no more than six months from the date of issuance), bankers’
acceptances, bank guaranties, surety bonds and similar instruments, (d) the outstanding principal
amount of all obligations in respect of the deferred purchase price of property or services (other
than trade accounts payable in the ordinary course of business), (e) Attributable Indebtedness in
respect of capital leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees
with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above
of Persons other than the Borrower or any Subsidiary, and (g) the outstanding principal amount
of all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or
joint venture (other than a joint venture that is itself a corporation or limited liability
company) in
which the Borrower or a Subsidiary is a general partner or joint venturer, unless such
Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.



     “Consolidated Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt



6









 





discount, fees, charges and related expenses of the Borrower and its Subsidiaries in connection
with borrowed money (including capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in accordance with GAAP, and (b)
the portion of rent expense of the Borrower and its Subsidiaries with respect to such period under
capital leases that is treated as interest in accordance with GAAP.




     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such date
to (b) Consolidated Interest Charges for such period.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of
the four fiscal quarters most recently ended.



     “Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding
extraordinary gains but including extraordinary losses) for that period; provided, that net income
of any Person that is not a Loan Party shall be excluded if and to the extent that, the declaration
of dividends or distributions by that Person of such net income is not, at the time, permitted
directly or indirectly, by the terms of its charter, or any agreement, instrument, judgment, decree,
order, statute, rule or government regulation applicable to that Person.



     “Consolidated Net Tangible Assets” means the Consolidated Assets less goodwill and
other intangibles (other than patents, trademarks, licenses, copyrights and other intellectual
property and prepaid assets).



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



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



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



     “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.



7









 





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



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



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition
(including any sale and leaseback transaction) of any property by any Person, including any sale,
assignment, transfer or other disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith.



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



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative
Agent, the L/C Issuer and the Swing Line Lender, and (ii) unless an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to waste or public
systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure



8









 





to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the foregoing.




     “Equity Interests” means, with respect to any Person, all of the shares of capital stock of
(or other ownership or profit interests in) such Person, all of the warrants, options or other
rights
for the purchase or acquisition from such Person of shares of capital stock of (or other ownership
or profit interests in) such Person, all of the securities convertible into or exchangeable
for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or
options for the purchase or acquisition from such Person of such shares (or such other interests),
and all of the other ownership or profit interests in such Person (including partnership, member
or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Section 414(m) 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 Borrower 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 400l(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower 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 Sections 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
constitutes 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
material liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.



     “Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate Loan,
the rate per annum equal to the British Bankers Association LIBOR
Rate (“BBA LIBOR”), as
published by Reuters (or another commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00
a.m., London time, three Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason, then the
“Eurodollar Rate” for such Interest Period 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 Eurodollar Rate 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 London Branch to major banks in the



9









 





London interbank eurodollar market at their request at approximately 11:00 a.m. (London time)
three Business Days prior to the commencement of such Interest Period.




     “Eurodollar Rate Loan” means a Committed Loan that bears interest at a rate based on
the Eurodollar Rate.



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



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or in which it is doing business other than solely by reason
of
this Agreement or any other Loan Documents or, in the case of any Lender, in which its
applicable Lending Office is located, (b) any branch profits taxes imposed by the United States
or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 10.13), any withholding tax that is imposed on amounts payable to such Foreign Lender
at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or
is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 3.01(a).



     “Existing Credit Agreement” means that certain Credit Agreement dated as of February
27, 2002 (as amended, supplemented, restated or modified from time to time) among the
Borrower, certain of its subsidiaries, the lenders from time to time party thereto and Bank of
America, N.A., as agent and lender.



     “Existing
Letters of Credit” means the letters of credit listed on
Schedule l.01(a).



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



     “Fee
Letters” means (i) the letter agreement, dated July 12, 2004, among the Borrower,
the Administrative Agent and Banc of America Securities LLC and (ii) the letter agreement,
dated July 15, 2004, among the Borrower and J.P. Morgan Securities Inc.



10









 





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



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



     “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 in the United States set forth 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 such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “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).



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the
purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity or level of income or
cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee
in respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether
or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent
or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that an
endorsement of any instrument shall not constitute a Guarantee. The amount of any Guarantee
shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not



11









 





stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.




     “Guarantors” means each of the Persons identified as a “Guarantor” on the signature pages
to hereto and each Person which may hereafter execute a joinder agreement reasonably acceptable
to the Administrative Agent pursuant to Section 6.12, together with their successors and permitted
assigns, and “Guarantor” means any one of them.



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



     “Immaterial Subsidiary” means any Subsidiary of any Loan Party that at any time,
together with its Subsidiaries, owns assets (book value) which constitute less than five percent
(5.00%) of the Consolidated Assets and is designated by the Borrower in writing as an
“Immaterial Subsidiary”; provided, that the aggregate amount of assets (book value) owned by
all Subsidiaries designated as Immaterial Subsidiaries shall not, at any time, exceed fifteen
percent (15.00)% of the Consolidated Assets.



     “Indebtedness” means, as to any Person at a particular time, without duplication, all of
the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




            (a) all obligations of such Person for borrowed money and all obligations of
such Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;




            (b) all direct or contingent obligations of such Person arising under letters of
credit (including standby and commercial, but excluding commercial letters of credit
supporting the purchase of goods in the ordinary course of business and expiring no more
than six months from the date of issuance), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments;




            (c) net obligations of such Person under any Swap Contract (other than
obligations under any Swap Contract entered into by the Borrower in order to manage
existing or anticipated risk associated with the repurchase by the Borrower of shares of its
common Equity Interests);




            (d) all obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course of
business);




            (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness arising under



12









 






conditional sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;




            (f) capital leases and Synthetic Lease Obligations;




            (g) all obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interest in such Person or any other
Person, valued, in the case of a redeemable preferred interest, at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and




            (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of
any partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation
under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof
as of such date. The amount of any capital lease or Synthetic Lease 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.


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



     “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 Eurodollar 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, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate
Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower
in its Committed Loan Notice or such other period that is twelve months or less requested by the
Borrower and consented to by all the Lenders; 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



13









 






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



     “Investment” means, as to any Person, any direct or indirect investment by such Person,
by means of (a) an Acquisition or (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such
other Person. For purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or decreases in the value
of such Investment.



     “Investment Guidelines” means the guidelines set forth in the Borrower’s “investment
policy” approved by the Borrower’s board of directors on May 12, 2003 (as set forth in Exhibit F
hereto), as amended by any amendments to such investment policy that do not modify such
investment policy in a manner materially adverse to the Lenders.


     “IP Rights” has the meaning specified in Section 5.17.

     “IRS” means the United States Internal Revenue Service.



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



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



     “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, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not
having the force of law.



     “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.



     “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.



14









 





     “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 1.06. 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.



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



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



     “Letter of Credit” means any letter of credit issued hereunder 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 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 2.03(i).



     “Letter of Credit Sublimit” means an amount equal to $20,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “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).



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



15









 





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



     “Loan Parties” means, collectively, the Borrower and each Guarantor.



     “Material Adverse Effect” means (a) a material adverse change in, or a material adverse
effect upon, the business, property, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan Party to
perform its obligations under any Loan Document to which it is a party; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against any Loan Party of any
Loan Document to which it is a party.



     “Maturity Date” means August 30, 2009.



     “Multiemployer Plan” means any employee pension benefit plan of the type described in
Section 4001 (a)(3) of ERISA and subject to Title IV of ERISA, to which the Borrower or any
ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.



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



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party 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 Loan Party 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. The foregoing shall also include any Swap Contract between the Borrower and
any Lender or Affiliate of a Lender.



     “Organization Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; 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.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or



16









 





under any other Loan Document or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Loan Document.




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


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


     “PBGC” means the Pension Benefit Guaranty Corporation.



     “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 Borrower or any ERISA Affiliate or to which the
Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of
a multiple employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.



     “Permitted Market Investments” means any investment that satisfies the Investment
Guidelines.



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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Pro Forma Basis” has the meaning specified in Section 1.03(c).



     “Property” means any interest in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible.



     “Register” has the meaning specified in Section 10.06(c).



     “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, other
than events for which the 30 day notice period has been waived.



17









 





     “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 an L/C Credit
Extension, a Letter of Credit Application, and (c) 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
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.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, controller, treasurer or assistant treasurer of a Loan Party; provided that on the Closing
Date, “Responsible Officer” shall include the senior vice president, secretary or assistant
secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such Loan Party.



     “Restricted Payment” means, with respect to any Person, any dividend or other
distribution (whether in cash, securities or other property) with respect to any capital stock or
other Equity Interest issued by such Person, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such capital stock or other Equity
Interest issued by such Person, or on account of any return of capital to such Person’s
stockholders, partners or members (or the equivalent Person thereof).



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



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities or other interests
having ordinary voting power for the election of directors or other governing body (other than
securities or interests having such power only by reason of the happening of a contingency) are
at the time beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options,



18









 





forward commodity contracts, equity or equity index swaps or options, bond or bond price or
bond index swaps or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master agreement, and (b)
any and all transactions of any kind, and the related confirmations, which are subject to the terms
and conditions of, or governed by, any form of master agreement published by the International
Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement,
or any other master agreement (any such master agreement, together with any related schedules,
a “Master Agreement”), including any such obligations or liabilities under any Master
Agreement.




     “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 clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such
Swap Contracts (which may include a Lender or any Affiliate of a Lender).



     “Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to
Section 2.04.



     “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 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b). which, if in writing, shall be substantially in
the form of Exhibit B.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $15,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (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).



19









 





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



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



     “Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001 (a)(l 6) of ERISA, over the current value of that Pension 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.” mean the United States of America.



     “Unreimbursed
Amount” has the meaning specified in Section 2.03(c)(i).



     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



20









 






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




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




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



     1.03
Accounting Terms.



     (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 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
Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and
the Borrower 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) the Borrower 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.



     (c) Notwithstanding the above, the parties hereto acknowledge and agree that, for
purposes of all calculations made under Section 7.02(d),
Section 7.02(f), Section 7.02(p), Section
7.06(d) (in each case, a “Pro Forma Transaction”), the financial covenants set forth in Section
7.11 and the definition of “Applicable Rate” in Section 1.01,



     (i) if (A) during the applicable four fiscal quarter period used in making such
calculations under Section 7.11 (the “Measuring Period”) or (B) in the case of any Pro Forma
Transaction calculation, to occur after such applicable Measuring Period (such pro forma
calculation to be made as of the last day of the most recent fiscal quarter for which annual or
quarterly financial statements shall have been delivered), the Borrower or any of its Subsidiaries
consummates any Disposition of a Subsidiary, product, product line, business segment or
division (x) income statement items (whether positive or negative) attributable to the Subsidiary
or Property disposed of shall be excluded as if such Disposition had occurred on the first date of
the Measuring Period and (y) Indebtedness which is retired shall be excluded and deemed to
have been retired as of the first day of the Measuring Period; and



21









 





     (ii) if (A) during the Measuring Period or (B) in the case of any Pro Forma
Transaction calculation to occur after such applicable Measuring Period (such pro forma
calculation to be made as of the last day of the most recent fiscal quarter for which annual or
quarterly financial statements shall have been delivered), the Borrower or any of its Subsidiaries
consummates any Acquisition (A) income statement items (whether positive or negative)
attributable to the Person or Property acquired shall be included as if such Acquisition had
occurred as of the first date of the Measuring Period and (B) to the extent not retired in
connection with such Acquisition, Indebtedness of the Person or Property acquired shall be
deemed to have been incurred as of the first day of the Measuring Period.



     For purposes of determining the Consolidated Leverage Ratio pursuant to any Pro Forma
Transaction, “Pro Forma Basis” shall mean that such ratio is calculated (i) by determining the
denominator in accordance with this Section 1.03(c) and (ii) by taking into account in the
numerator all Indebtedness incurred on the date of the relevant transaction.



     1.04 Rounding.



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



     1.05 Times of Day.



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



     1.06 Letter of Credit Amounts.



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



22









 





ARTICLE II

 

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01
Committed Loans.



     Subject to the terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Committed Loan” to the Borrower 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,
and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Commitment. Within the limits of each Lender’s Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under this
Section 2.01, prepay under Section 2.05. and reborrow under this Section 2.01. Committed
Loans may be Base Rate Loans or Eurodollar 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 Eurodollar Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i)
three Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base
Rate Committed Loans, and (ii) on the requested date of any Borrowing of Base Rate Committed
Loans; provided, however, that if the Borrower wishes to request Eurodollar Rate 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. three Business Days prior to the requested date of such
Borrowing, conversion or continuation, 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., three Business Days before the requested
date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the
Borrower (which notice may be by telephone) whether or not the requested Interest Period has
been consented to by all the Lenders. Each telephonic notice by the Borrower pursuant to this
Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be
in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except
as provided in Sections 2.03(c) and 2.04(c). each Borrowing of or conversion to Base Rate
Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i)
whether the Borrower is requesting a Committed Borrowing, a conversion of Committed Loans





23









 





from one Type to the other, or a continuation of Eurodollar Rate 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, and (v) if applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to, Base Rate Loans. 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 Eurodollar Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate 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.




     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the applicable
Committed Loans, and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans 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 immediately available funds at the Administrative Agent’s Office
not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice.
Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is
the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the Administrative Agent either,
at the Borrower’s option, by (i) crediting the account of the Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date the Committed Loan Notice with
respect to such Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then
the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and second, shall be made available to the Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the
existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar
Rate Loans without the consent of the Required Lenders.



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



24









 





     (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
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 2.03, (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 for the account of the
Borrower 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 Borrower 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 Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of
the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the
Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested complies with
the conditions set forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain
Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed. All 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 2.03(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance
or last extension, unless the Required Lenders have approved such expiry date; or




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




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



25









 






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




                  (D) such Letter of Credit is to be denominated in a currency other than
Dollars; or




                  (E)
a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into reasonably satisfactory arrangements with the Borrower or
such Lender to eliminate the L/C Issuer’s risk with respect to such Lender.




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




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




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



26









 





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




            (i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed
by a Responsible Officer of the Borrower. Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least
two Business Days (or such later date and time as the Administrative Agent and the L/C
Issuer may agree in a particular instance in their sole discretion) prior to the proposed
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 reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date
of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof;
(C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer may reasonably 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 reasonably 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 reasonably require. Additionally, the
Borrower shall furnish to the L/C Issuer and the Administrative Agent such other
documents and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the Administrative
Agent may reasonably require.




            (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer
will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless the L/C Issuer has received written notice from any Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied, then, subject to
the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter
of Credit for the account of the Borrower (or the applicable Subsidiary) 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.



27









 






            (iii) If the Borrower so requests in any applicable Letter of Credit Application,
the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit
that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the “Non-Extension Notice Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter
of Credit has been issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Expiration Date; provided, however, that
the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined
that it would not be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the
provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is five
Business Days before the Non-Extension Notice Date (1) from the Administrative Agent
that the Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied, and in each such case directing
the L/C Issuer not to permit such extension.




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



     (c) Drawings and Reimbursements: Funding of Participations.




            (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of
a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by
the L/C Issuer under a Letter of Credit (each such date, an “Honor Date”) or if the
Borrower is notified of such drawing after 10:00 a.m., then no later than 11:00 a.m. on
the first Business Day immediately following the Honor Date (it being understood that
unless such drawing is repaid on the Honor Date, the Borrower shall be responsible for
interest on any such drawing until the L/C Issuer has been reimbursed), the Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to
the amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such
time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of
such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be
deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the



28









 






minimum and multiples specified in Section 2.02 for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments
and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(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 2.03(c)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer at the
Administrative Agent’s Office in an amount equal to its Applicable Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such
notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(ii), each Lender that so makes funds available shall be deemed to have
made a Base Rate Committed Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the L/C Issuer.




            (iii) With respect to any Unreimbursed Amount that is not fully refinanced by
a Committed Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to
have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default Rate. In such event,
each Lender’s payment to the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(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 2.03.




            (iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to
this Section 2.03(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 2.03(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other Person for
any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender’s obligation to make Committed Loans pursuant to this
Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery
by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for
the amount of any payment made by the L/C Issuer under any Letter of Credit, together
with interest as provided herein.



29









 






            (vi) If any Lender fails to make available to the Administrative Agent for the
account of the L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(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 greater of the Federal Funds
Rate and a rate determined by the L/C Issuer in accordance with banking industry rules
on interbank compensation. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this
clause (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 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent
will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted,
in the case of interest payments, to reflect the period of time during which such Lender’s
L/C Advance was outstanding) in the same funds as those received by the Administrative
Agent.




            (ii) If any payment received by the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement entered
into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative
Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of
the Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned by such Lender, at a rate per annum equal to the Federal Funds
Rate from time to time in effect. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this Agreement.



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




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




            (ii) the existence of any claim, counterclaim, setoff, defense or other right that
the Borrower or any Subsidiary may have at any time against any beneficiary or any



30









 






transferee of such Letter of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), the L/C Issuer or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by such Letter of Credit or
any agreement or instrument relating thereto, or any unrelated transaction;




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




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




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



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



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



31









 





through (v) of Section 2.03(6); provided, however, that anything in such clauses or elsewhere
herein to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by the L/C Issuer’s bad faith, 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; provided, further, that nothing in this Section is
intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may
have against the L/C Issuer or its transferee. In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.




     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date,
any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.
Sections 2.05 and 8.02(c) set forth certain additional requirements to deliver Cash Collateral
hereunder. For purposes of this Agreement, “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 reasonably satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings. The Borrower hereby grants to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.



     (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower 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 Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate times the daily
amount available to be drawn under such Letter of Credit. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) computed



32









 





on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the end of
each March, June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, upon the request of the
Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.




     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i) with
respect to each Letter of Credit, at the rate specified in the applicable Fee Letter, computed on
the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears,
and due and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of such Letter of
Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) with respect to
any amendment of a Letter of Credit increasing the amount of such Letter of Credit, at a rate
separately agreed between the Borrower and the L/C Issuer, computed on the amount of such
increase, and payable upon the effectiveness of such amendment. 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 1.06. In addition, the Borrower shall pay
directly to the L/C Issuer for its own account the customary issuance, presentation, amendment
and other processing fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and standard costs and
charges are due and payable on demand and are nonrefundable.



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



     (1) 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 Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all
drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that
the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.



     2.04
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 2.04, to make loans (each such loan, a “Swing Line Loan”) to the Borrower from time to
time on any Business Day during the Availability Period in an aggregate amount at any time
outstanding not to exceed 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,



33









 





may exceed the amount of such Lender’s Commitment; provided, however, that after giving
effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any
Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing
Line Loans shall not exceed such Lender’s Commitment, and provided, further, that the
Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing
Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under
this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the
making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such
Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage
times the amount of such Swing Line Loan.




     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which
may be given by telephone. Each such notice must be received by the Swing Line Lender and
the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the
requested borrowing date, which shall be a Business Day. Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer
of the Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line
Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone
or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and,
if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing)
of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in
writing) from the Administrative Agent (including at the request of any Lender) prior to
2:00 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 2.04(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 3:00 p.m. on the borrowing date specified in such Swing
Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower either, at
the Borrower’s option, by (i) crediting the account of the Borrower on the books of the Swing
Line Lender in immediately available funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower.



     (c) Refinancing of Swing Line Loans.




            (i) The Swing Line Lender at any time in its sole and absolute discretion may
request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line
Lender to so request on its behalf), that each Lender make a Base Rate Committed Loan
in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line



34









 






Loans then outstanding. Such request shall be made in writing (which written request
shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance
with the requirements of Section 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject to the
unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02. The Swing Line Lender shall furnish the Borrower with a copy of the
applicable Committed Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Applicable
Percentage of the amount specified in such Committed Loan Notice available to the
Administrative Agent in immediately available funds for the account of the Swing Line
Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified
in such Committed Loan Notice, whereupon, subject to
Section 2.04(c)(ii), each Lender
that so makes funds available shall be deemed to have made a Base Rate Committed
Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so
received to the Swing Line Lender.




            (ii) If for any reason any Swing Line Loan cannot be refinanced by such a
Committed Borrowing in accordance with Section 2.04(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 2.04(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 2.04(c) by the time specified in
Section 2.04(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
greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in
accordance with banking industry rules on interbank compensation. A certificate of the
Swing Line Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (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 2.04(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 Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c)
is subject to the conditions set forth in Section 4.02. No such funding of risk



35









 






participations shall relieve or otherwise impair the obligation of the Borrower to repay
Swing Line Loans, together with interest as provided herein.



     (d) Repayment of Participations.




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




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



     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to
refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of
such Applicable Percentage shall be solely for the account of the Swing Line Lender.



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



          2.05 Prepayments.



     (a) Subject to Section 3.05, the Borrower may, upon notice to the Administrative
Agent, at any time or from time to time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Administrative
Agent not later than 1 1 :00 a.m. (A) three Business Days prior to any date of prepayment of
Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii)
any prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof or the entire principal amount thereof then
outstanding; and (iii) any prepayment of Base Rate Committed Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof or 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 Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the amount of such



36









 





Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower,
the Borrower shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together with any additional
amounts required pursuant to Section 3.05. Each such prepayment shall be applied to the
Committed Loans of the Lenders in accordance with their respective Applicable Percentages.




     (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in
whole or in part without premium or penalty; provided that (i) such notice must be received by
the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the
prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000
or the entire principal amount thereof then outstanding. Each such notice shall specify the date
and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.




     (c) If for any reason the Total Outstandings at any time exceed the Aggregate
Commitments then in effect, the Borrower shall immediately prepay Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total
Outstandings exceed the Aggregate Commitments then in effect.




          2.06
Termination or Reduction of Commitments.




     The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or from time to time permanently reduce the Aggregate Commitments; provided
that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any such partial reduction
shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) the Borrower shall not terminate or reduce the Aggregate Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings
would exceed the Aggregate Commitments, and (iv) if, after giving effect to any reduction of the
Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the
amount of the Aggregate Commitments, such Sublimit shall be automatically reduced by the
amount of such excess. The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Commitments. 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.




          2.07 Repayment of Loans.




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




37









 





(b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the
date seven (7) Business Days after such Loan is made and (ii) the Maturity Date.



     2.08 Interest.


(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan
shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate
per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; (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; and (iii) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate.




(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 until paid at a fluctuating interest rate per annum a all
times equal to the Default Rate to the fullest extent permitted by applicable Laws.





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




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




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



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



     2.09
Fees.



     In addition to certain fees described in subsections (i) and (j) of Section 2.03:




            (a) Facility Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a facility fee equal



38









 






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 Borrower shall pay to the Arrangers and the
Administrative Agent for their own respective accounts fees in the amounts and at the
times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not
be refundable for any reason whatsoever.



     2.10
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). 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 2.12(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.



     2.11
Evidence of Debt.



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



39









 




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.


            2.12
Payments Generally; Administrative Agent’s Clawback.


            (a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise
expressly provided herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such payment is owed,
at the Administrative Agent’s Office in Dollars and in immediately available funds not later than
2:00 p.m. on the date specified herein. 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 after 2:00 p.m. shall be deemed received on the
next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any
payment to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.


            (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Committed Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Committed Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with Section 2.02 and
may, in reliance upon such assumption, make available to the Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing
available to the Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation and (B) in the case of a payment to be made
by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an overlapping period,
the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid
by the Borrower for such period. If such Lender pays its share of the applicable Committed



40









 





Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s
Committed Loan included in such Committed Borrowing. Any payment by the Borrower shall
be without prejudice to any claim the Borrower may have against a Lender that shall have failed
to make such payment to the Administrative Agent.





            (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless
the Administrative Agent shall have received notice from the Borrower prior to the date
on which any payment is due to the Administrative Agent for the account of the Lenders
or the L/C Issuer hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer,
as the case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or the L/C Issuer, in immediately
available 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 greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.




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



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



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



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



41









 





     2.13 Sharing of Payments by Lenders.



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




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




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



     Each Loan Party 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 Loan Party rights of setoff and counterclaim
with
respect to such participation as fully as if such Lender were a direct creditor of
such Loan Party
in the amount of such participation.



     2.14 Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may
from time to
time, request an increase in the Aggregate Commitments by an amount (for all such
requests) not
exceeding $50,000,000; provided that (i) any such request for an increase shall be
in a minimum
amount of $5,000,000, and (ii) the Borrower may make a maximum of five such
requests. At the
time of sending such notice, the Borrower (in consultation with the Administrative
Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no
event be less than ten Business Days from the date of delivery of such notice to
the Lenders).




42









 





     2.13 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 rate share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the Administrative
Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed
Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or
make such other adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Committed Loans and other amounts owing them, provided
that:




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




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




            Each Loan Party 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 Loan Party rights of setoff and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of such Loan Party in
the amount of such participation.



     2.14 Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to
time, request an increase in the Aggregate Commitments by an amount (for all such requests) not
exceeding $50,000,000; provided that (i) any such request for an increase shall be in a minimum
amount of $5,000,000, and (ii) the Borrower may make a maximum of five such requests. At the
time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which shall in no
event be less than ten Business Days from the date of delivery of such notice to the Lenders).



43
















 





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



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



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



     (e) Conditions to Effectiveness of Increase. As a
condition precedent to such
increase, the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party
dated as of the Increase Effective Date signed by a
Responsible Officer of each Loan Party (i)
certifying and attaching the resolutions adopted by
each Loan Party approving or consenting to
such increase, and (ii) in the case of the Borrower,
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 in all material
respects 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 in all
material respects as of such earlier date, and
except that for purposes of this Section 2.15, the
representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be
deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01, and (B) no Default
exists.
The Borrower shall prepay any Committed Loans
outstanding on the Increase Effective Date
(and pay any additional amounts required pursuant to
Section 3.05) to the extent necessary to
keep the outstanding Committed Loans ratable with any
revised Applicable Percentages arising
from any nonratable increase in the Commitments under
this Section.



     (f) Conflicting Provisions. This Section shall
supersede any provisions in
Sections 2.13 or 10.01 to the contrary.



44









 





ARTICLE III

 

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01
Taxes.



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



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



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



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



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



45









 





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




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




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




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




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




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



     (f) Treatment of Certain Refunds. If the
Administrative Agent, any Lender or the
L/C Issuer receives a refund of any Taxes or
Other Taxes as to which it has been indemnified
by
the Borrower or with respect to which the
Borrower has paid additional amounts pursuant
to this
Section, it shall pay to the Borrower an amount
equal to such refund (but only to the extent of
indemnity payments made, or additional amounts
paid, by the Borrower under this Section with
respect to the Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket
expenses
of the Administrative Agent, such Lender or the
L/C Issuer, as the case may be, and without
interest (other than any interest paid by the
relevant Governmental Authority with respect to
such
refund), provided that the Borrower, upon the
request of the Administrative Agent, such Lender
or the L/C Issuer, agrees to repay the amount
paid over to the Borrower (plus any penalties,
interest or other charges imposed by the
relevant Governmental Authority) to the
Administrative
Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or
the
L/C Issuer is required to repay such refund to
such Governmental Authority. This subsection



46









 





shall not be construed to require the
Administrative Agent, any Lender or the L/C
Issuer to make
available its tax returns (or any other
information relating to its taxes that it deems
confidential)
to the Borrower or any other Person.




     3.02 Illegality.



     If any Lender determines that any Law has
made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for
any Lender or its applicable Lending Office to
make, maintain or fund Eurodollar Rate Loans,
or to determine or charge interest rates based
upon the Eurodollar 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 in the
London
interbank market, then, on notice thereof by
such Lender to the Borrower through the
Administrative Agent, any obligation of such
Lender to make or continue Eurodollar Rate Loans
or to convert Base Rate Committed Loans to
Eurodollar Rate Loans shall be suspended until
such Lender notifies the Administrative Agent
and the Borrower that the circumstances giving
rise to such determination no longer exist.
Upon receipt of such notice, the Borrower
shall, upon
demand from such Lender (with a copy to the
Administrative Agent), at the Borrower’s option,
either prepay or, if applicable, convert all
Eurodollar 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 Eurodollar Rate Loans to such
day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar
Rate Loans. Upon any such prepayment or
conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted.



     3.03 Inability to Determine Rates.



     If the Required Lenders determine that
for any reason in connection with any request
for
a Eurodollar Rate Loan or a conversion to or
continuation thereof that (a) Dollar deposits
are not
being offered to banks in the London interbank
eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan,
(b) adequate and reasonable means do not exist
for
determining the Eurodollar Rate for any
requested Interest Period with respect to a
proposed
Eurodollar Rate Loan, or (c) the Eurodollar
Rate for any requested Interest Period with
respect
to a proposed Eurodollar Rate Loan does not
adequately and fairly reflect the cost to such
Lenders of funding such Loan, the
Administrative Agent will promptly so notify
the Borrower
and each Lender. Thereafter, the obligation of
the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the
Administrative Agent (upon the instruction of
the Required
Lenders) revokes such notice. Upon receipt of
such notice, the Borrower may revoke any
pending request for a Borrowing of, conversion
to or continuation of Eurodollar Rate 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; Reserves on Eurodollar
Rate Loans.



     (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



47









 






or for the account of, or credit extended
or participated in by, any Lender (except
any reserve requirement contemplated by
Section 3.04(e)) 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 Eurodollar 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) impose on any Lender or the
L/C Issuer or the London interbank market
any other condition, cost or expense
affecting this Agreement or Eurodollar
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 Eurodollar Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.




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



     (c) Certificates for Reimbursement. A certificate of a
Lender or the L/C Issuer
setting forth the amount or amounts necessary to
compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in
subsection (a) or (b) of this Section shall be
required to be delivered to the Borrower as a
condition to the obligations of the Borrower under
such subsections, shall set forth a calculation by a
senior officer of such Lender or the L/C Issuer
in reasonable detail and shall be conclusive absent
manifest error. The Borrower shall pay such




48









 





Lender or the L/C Issuer, as the case may be,
the amount shown as due on any such certificate
within 10 days after receipt thereof.




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



     (e) Reserves on Eurodollar Rate Loans. The Borrower shall
pay to each Lender, as
long as such Lender shall be required to maintain
reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or
deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid
principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated
to such Loan by such Lender (as determined
by such Lender in good faith, which determination
shall be conclusive absent manifest error),
which shall be due and payable on each date on which
interest is payable on such Loan, provided
the Borrower shall have received at least 10 days’
prior notice (with a copy to the Administrative
Agent) of such additional interest from such
Lender. If a Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 10
days from receipt of such notice.



     3.05 Compensation for Losses.



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




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


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


      (c) any assignment of a Eurodollar Rate Loan on a day other
than the last day
of the Interest Period therefor, but only as a
result of a request by the Borrower pursuant
to Section 10.13;


including 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



49








 






which such funds were obtained (but
excluding any loss of the Applicable Rate
for
Eurodollar Rate Loans). The Borrower
shall also pay any customary
administrative fees
charged by such Lender in connection with
the foregoing.



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



     3.06 Mitigation Obligations; Replacement of Lenders.



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



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



     3.07 Survival.



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



ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension.



     The obligation of the L/C Issuer and each
Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following
conditions precedent:



50








 





     (a) The Administrative Agent’s
receipt of the following, each of which
shall
be originals or telecopies (followed
promptly by originals unless otherwise
agreed to by
the Administrative Agent) unless
otherwise specified, each properly
executed by a
Responsible Officer of the signing Loan
Party, each dated the Closing Date (or,
in the
case of certificates of governmental
officials, a recent date before the
Closing Date) and
each in form and substance reasonably
satisfactory to the Administrative Agent
and each
of the Lenders:




            (i) executed counterparts of
this Agreement, sufficient in
number for
distribution to the Administrative
Agent, each Lender and the Borrower;




            (ii) a Note executed by the
Borrower in favor of each Lender
requesting a Note;




            (iii) such certificates of
resolutions or other action,
incumbency
certificates and/or other
certificates of Responsible
Officers of each Loan Party as
the Administrative Agent may
reasonably require evidencing the
identity,
authority and capacity of each
Responsible Officer thereof
authorized to act as a
Responsible Officer in connection
with this Agreement and the other
Loan
Documents to which such Loan Party
is a party;




            (iv) such documents and
certifications as the
Administrative Agent
may reasonably require to evidence
that each Loan Party is duly
organized or
formed, and that the Borrower and
each Guarantor is validly existing,
in good
standing and qualified to engage in
business in each jurisdiction where
its
ownership, lease or operation of
properties or the conduct of its
business requires
such qualification, except to the
extent that failure to do so would
not reasonably
be expected to have a Material
Adverse Effect;




            (v) a favorable opinion of
Gibson, Dunn & Crutcher LLP,
counsel to
the Loan Parties, addressed to the
Administrative Agent and each
Lender, in a
form reasonably acceptable to the
Administrative Agent;




            (vi) a favorable opinion of
in-house counsel to the Loan
Parties,
addressed to the Administrative
Agent and each Lender, in a form
reasonably
acceptable to the Administrative
Agent;




            (vii) a certificate of a
Responsible Officer of each Loan
Party either (A)
attaching copies of all material
consents, licenses and approvals
required in
connection with the execution,
delivery and performance by such
Loan Party and
the validity against such Loan
Party of the Loan Documents to
which it is a party,
and such material consents,
licenses and approvals shall be in
full force and
effect, or (B) stating that no
such material consents, licenses
or approvals are so
required;



51









 






            (viii) a certificate signed
by a Responsible Officer of the
Borrower
certifying (A) that the conditions
specified in Sections 4.02(a) and
(b) have been
satisfied or waived and (B) that
there has been no event or
circumstance since the
date of the Audited Financial
Statements that has had or would be
reasonably
expected to have, either
individually or in the aggregate, a
Material Adverse
Effect;




            (ix)
a duly completed
Compliance Certificate as of June
30, 2004,
signed by a Responsible Officer of
the Borrower;




            (x)
evidence that the
Existing Credit Agreement has been
or
concurrently with the Closing Date
is being terminated and that the
Existing
Letters of Credit shall constitute
Letters of Credit hereunder; and




            (xi) such other assurances,
certificates, documents, consents or
opinions as the Administrative
Agent, the L/C Issuer, the Swing
Line Lender or
the Required Lenders reasonably may
require.




      (b) Any fees required to be paid on or before the Closing
Date shall have been
paid.




      (c) Unless waived by the Administrative Agent, the Borrower
shall have paid
all reasonable fees, charges and disbursements
of one firm of legal counsel to the
Administrative Agent and the Syndication Agent
to the extent invoiced at least one
Business Day prior to the Closing Date, plus
such additional invoiced amounts of such
fees, charges and disbursements as shall
constitute its reasonable estimate of such fees,
charges and disbursements incurred or to be
incurred by it through the closing
proceedings (provided that such estimate shall
not thereafter preclude a final settling of
accounts between the Borrower and the
Administrative Agent).




      (d) The Closing Date shall have occurred on or before August
31, 2004.



     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 reasonably acceptable or reasonably
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 Eurodollar Rate Loans) is
subject to the following conditions precedent:



52









 






      (a) The representations and warranties of the Borrower and
each other Loan
Party contained in Article V or any other Loan
Document, or which are contained in any
document furnished at any time under or in
connection herewith or therewith, (i) that
contain a materiality qualification shall be
true and correct on and as of the date of such
Credit Extension as if made on and as of such
date (except to the extent such
representations and warranties expressly relate
to another date in which case such
representations and warranties shall be true
and correct as of such date) and (ii) that do
not contain a materiality qualification shall
be true and correct in all material respects on
and as of the date of such Credit Extension as
if made on and as of such date (except to
the extent such representations and warranties
expressly relate to another date in which
case such representations and warranties shall
be true and correct in all material respects
as of such date), and except that for purposes
of this Section 4.02, the representations and
warranties contained in subsections (a) and (b)
of Section 5.05 shall be deemed to refer to
the most recent statements furnished pursuant
to clauses (a) and (b), respectively, of
Section 6.01, to the extent such statements
have been furnished.




      (b) No Default shall exist, or would result from such
proposed Credit
Extension or from the application of the
proceeds thereof.




      (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.



     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 Eurodollar Rate Loans)
submitted by the Borrower shall be deemed to be
a representation and warranty that the
conditions specified in Sections 4.02(a) and
(b) have been satisfied on and as of the date
of the
applicable Credit Extension.



ARTICLE V

 

REPRESENTATIONS AND WARRANTIES



     The Loan Parties represent and warrant to the
Administrative Agent and the Lenders that:






     5.01 Existence, Qualification and Power;
Compliance with Laws.





     Each Loan Party and each Subsidiary
thereof (a) is duly organized or formed, validly
existing and in good standing under the Laws of
the jurisdiction of its incorporation or
organization, (b) has all requisite power and
authority and all requisite governmental
licenses,
authorizations, consents and approvals to (i)
own its assets and carry on its business and
(ii)
execute, deliver and perform its obligations
under the Loan Documents to which it is a
party, (c)
is duly qualified and is licensed and in good
standing under the Laws of each jurisdiction
where
its ownership, lease or operation of properties
or the conduct of its business requires such
qualification or license, and (d) is in
compliance with all Laws; except in the case
referred to in




53









 








clause (a) above with respect to Immaterial
Subsidiaries only and in each case referred to
in
clause (b)(i), (c) or (d), to the extent that
failure to do so would not reasonably be
expected to
have a Material Adverse Effect.




     5.02
Authorization; No Contravention.



     The execution, delivery and performance
by each Loan Party of each Loan Document to
which such Person is party, have been, duly
authorized by all necessary corporate or other
organizational action, and do not and will not
(a) contravene the terms of any of such Person’s
Organization Documents; (b) conflict with or
result in any breach or contravention of, or the
creation of any Lien under, or require any
payment to be made under (i) any material
Contractual
Obligation to which such Person is a party or
affecting such Person or the properties of such
Person or any of its Subsidiaries or (ii) any
material order, injunction, writ or decree of
any
Governmental Authority or any arbitral award to
which such Person or its property is subject; or
(c) violate any Law. Each Loan Party and each
Subsidiary thereof is in compliance with all
Contractual Obligations referred to in clause
(b)(i), except to the extent that failure to do
so
would not reasonably be expected to have a
Material Adverse Effect.



     5.03 Governmental Authorization; Other
Consents.



     No
approval, consent, exemption,
authorization, or other action by, or notice
to, or filing
with, any Governmental Authority or any other
Person is necessary or required in connection
with the execution, delivery or performance by,
or enforcement against, any Loan Party of this
Agreement or any other Loan Document, except
(i) such an approval, consent, exemption,
authorization, or other action by, or notice
to, or filing with a Person other than a
Governmental
Authority the absence of which would not
reasonably be expected to have a Material
Adverse
Effect and (ii) filings with the Securities and
Exchange Commission.



     5.04
Binding Effect.



     This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that
is party thereto. This Agreement constitutes, and each other Loan Document when
so delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance
with its terms.



     5.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.



54









 





     (b) The unaudited consolidated and consolidating balance
sheet of the Borrower and
its Subsidiaries required to be provided pursuant to
Section 6.01(b) to the extent applicable, and
the related consolidated and consolidating 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, and (ii) fairly present the
financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results
of operations for the period covered thereby,
subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end
audit adjustments.



     (c) Since the date of the Audited Financial Statements, there
has been no event or
circumstance, either individually or in the
aggregate, that has had or would reasonably be
expected to have a Material Adverse Effect.



     5.06
Litigation.



     There are no actions, suits, proceedings, claims or disputes pending or,
to the knowledge of any Responsible Officer of the Borrower, threatened, at law,
in equity, in arbitration or before any Governmental Authority, by or against
the Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby, or (b) either
individually or in the aggregate would reasonably be expected to have a Material
Adverse Effect. It is understood and agreed that (A) so long as (i) the facts
and circumstances with respect to that certain $68,200,000 arbitration award in
favor of Solvay Pharmaceuticals Inc. as described in the press release issued by
the Borrower on or about June 17, 2004, have not changed in an adverse manner,
(ii) no additional adverse facts and circumstances have been discovered or
disclosed and (iii) the Borrower has reserved for such award in accordance with
GAAP, the existence of such award and the Borrower’s obligations to pay such
award, in and of themselves, shall not constitute, and would not reasonably be
expected to have, a Material Adverse Effect hereunder and (B) with respect to
the litigation set forth on Schedule 5.06, the existence of the potential
liability described therein and the Borrower’s obligations to pay such
liability, in and of themselves, shall not constitute, and would not reasonably
be expected to have, a Material Adverse Effect hereunder.



     5.07
No Default.



     Neither the Borrower nor any Subsidiary is in default under or with
respect to any Contractual Obligation in a manner that would, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.



55









 





     5.08
Ownership of Property; Liens.



     The Borrower and each of its Subsidiaries has 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 its business, except for such
defects in title as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The property of the Borrower and its
Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.



     5.09
Environmental Compliance.



     The Borrower and its Subsidiaries conduct in the ordinary course of
business a review of the effect of existing Environmental Laws and claims
alleging potential liability or responsibility for violation of any
Environmental Law on their respective businesses, operations and properties, and
as a result thereof the Borrower has reasonably concluded that such
Environmental Laws and claims would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



     5.10
Insurance.



     The properties of the Borrower and its Subsidiaries are insured with
insurance companies A.M. Best rated A or better that are not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates, and/or the Borrower maintains a system or systems of self-insurance or
assumption of risk which accords with the practices of similar businesses.



     5.11
Taxes.



     The Borrower and its Subsidiaries have filed (i) all Federal and state
income tax returns and (ii) all other material Federal, state and other tax
returns and reports required to be filed, and have paid all material Federal,
state and other 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 in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP. To the knowledge of any Responsible Officer of
the Borrower, there is no proposed tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect. Neither any Loan
Party nor any Subsidiary thereof is party to any tax sharing agreement with any
Person that is not a Subsidiary.



     5.12
ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS or an application for such a
letter is either currently being processed by the IRS with respect thereto or
will be timely filed within applicable deadlines, and, to the best knowledge of
the Borrower,



56









 





nothing has occurred which would prevent, or
cause the loss of, such qualification. The
Borrower and each ERISA Affiliate have made all
required contributions to each Plan subject to
Section 412 of the Code, 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
except for those that would not, either
individually or in the aggregate, reasonably be
expected to
have a Material Adverse Effect.




     (b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that would reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
would reasonably be expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event that, either individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect has occurred or
is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension
Liability that, either individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect; (iii) neither the Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA) that, either individually or
in the aggregate, would reasonably be expected to have a Material Adverse
Effect; (iv) neither the Borrower 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 Sections 4201 or 4243 of ERISA with respect to a Multiemployer
Plan that, either individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect; and (v) neither the Borrower nor any ERISA
Affiliate has engaged in a transaction that would be subject to Sections 4069 or
4212(c) of ERISA that, either individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.



     5.13
Subsidiaries; Equity Interests.



     As of the Closing Date, (a) the Borrower has no Subsidiaries other than
those specifically disclosed in Part (a) of Schedule 5.13, and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by a Loan Party in the amounts
specified on Part (a) of Schedule 5.13 free and clear of all Liens (other than
Liens permitted by Section 7.0l(d)), (b) the Borrower has no equity investments
in any other corporation or entity other than those specifically disclosed in
Part (b) of Schedule 5.13, and (c) all of the outstanding Equity Interests in
the Borrower have been validly issued and are fully paid and nonassessable.



     5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning



57









 





of Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock.




     (b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a “holding company,” or a “subsidiary company” of a “holding
company,” or an “affiliate” of a “holding company” or of a “subsidiary company”
of a “holding company,” within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.



     5.15
Disclosure.



     No report, financial statement, certificate or other information furnished
(whether in writing or orally) by a Responsible Officer on behalf of any Loan
Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement,
hereunder or under any other Loan Document (in each case, as modified or
supplemented by other information so furnished or made available publicly)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time (it being understood that the projected financial
information is subject to significant uncertainties and contingencies, many of
which are beyond the Borrower’s control, and that no assurance can be given that
any projections will be realized).



     5.16
Compliance with Laws.



     The Borrower and each of its Subsidiaries is in compliance in all material
respects with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its properties, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or (b)
the failure to comply therewith, either individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect.



     5.17
Intellectual Property; Licenses, Etc.



     The Borrower and its Subsidiaries own, or possess the right to use, all of
the trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective
businesses, except as would not reasonably be expected to have a Material
Adverse Effect. To the best knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed by the Borrower or any Subsidiary infringes upon any rights held by
any other Person, except as would not reasonably be expected to have a Material
Adverse Effect. To the actual knowledge of the Borrower, no claim or litigation
regarding any of the foregoing is pending or threatened, which, either
individually or in the aggregate, would reasonably be expected to have a
Material Adverse



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Effect. Without limitation of the last sentence of Section 5.06, for purposes of
this Section 5.17. effect shall be given to such sentence.




ARTICLE VI



AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Loan Parties shall and shall cause their
Subsidiaries to (except that the covenants set forth in
Sections 6.01, 6.02, and
6.03 shall not apply to the Subsidiaries):



     6.01 Financial Statements.



     Deliver to the Administrative Agent:



     (a) as soon as available, but in any event within 90 days (or within five
days of such other time period required by the SEC) after the end of each fiscal
year of the Borrower (commencing with the fiscal year ended June 30, 2005), a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification, assumption or exception or any qualification,
assumption or exception as to the scope of such audit; and


     (b) as soon as
available, but in any event within 45 days (or within five days of such other
time period required by the SEC) after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower (commencing with the fiscal quarter
ended September 30, 2004), a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such
fiscal quarter and for the portion of the Borrower’s fiscal year then ended,
setting forth in each case in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, certified by a Responsible
Officer of the Borrower as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.



     The Borrower shall not be separately required to furnish information under
clause (a) or (b) above that has previously been furnished pursuant to Section
6.02(d).



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     6.02
Certificates; Other Information.



     Deliver to the Administrative Agent:



     (a) concurrently with the delivery of the financial statements referred to
in Section 6. 01 (a), certificate of its independent certified public
accountants certifying such financial statements and stating that in making the
examination necessary therefor no knowledge was obtained of any Default under
the financial covenants set forth herein or, if any such Default shall exist,
stating the nature and status of such Default;



     (b) concurrently with the delivery of the financial statements referred to
in Sections 6.01 (a) and (b) (commencing with the delivery of the financial
statements for the fiscal quarter ended September 30, 2004), a duly completed
Compliance Certificate signed by a Responsible Officer of the Borrower;



     (c) promptly after any request by the Administrative Agent or any Lender
through the Administrative Agent, copies of any detailed audit reports,
management letters or recommendations submitted to the board of directors (or
the audit committee of the board of directors) of the Borrower by independent
accountants in connection with the accounts or books of the Borrower or any
Subsidiary, or any audit of any of them;



     (d) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which the Borrower may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto; and



     (e) promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Subsidiary thereof, copies of each notice or
other correspondence received from the SEC (or comparable agency in any
applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof; and



     (f) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender
through the Administrative Agent may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01 (a) or {b) or
Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial,



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third-party website or sponsored by the Administrative Agent); provided that the
Borrower shall notify the Administrative Agent (by telecopier or electronic
mail) of the posting of any such documents and, upon the Administrative Agent’s
request, provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Notwithstanding anything
contained herein, in every instance the Borrower shall be required to provide
paper copies of the Compliance Certificates required by Section 6.02(b) to the
Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for maintaining its
copies of such documents.




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



     6.03
Notices.


     Promptly notify the Administrative Agent:



     (a) of the occurrence of any Default;



     (b) of any matter that has resulted or would 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 Borrower or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws, in each case that has resulted or
would reasonably be expected to result in a Material Adverse Effect;



61









 





     (c) of the occurrence of any ERISA Event that, either
individually or in the
aggregate, would reasonably be expected to have a
Material Adverse Effect; and



     (d) of any material change in accounting policies or
financial reporting practices by
the Borrower or any Subsidiary.



     Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and (except in the case of clause (d)) stating what action
the Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.



     6.04
Payment of Obligations.



     Pay and discharge as the same shall become due and payable, all its
material obligations and liabilities, including (a) all material tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets and (b) all material lawful claims which, if unpaid, would
by law become a Lien upon its property (other than a Lien permitted by Section
7.01), unless, in the case of clause (a) or (b) above, (i) the same are being
contested in good faith by appropriate proceedings diligently conducted and (ii)
adequate reserves in accordance with GAAP, if any, are being maintained by the
Borrower or such Subsidiary.



     6.05
Preservation of Existence, Etc.



     (a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except (i) in a transaction permitted by Section 7.04 and (ii) with
respect to Immaterial Subsidiaries only, as would not reasonably be expected to
have a Material Adverse Effect; (b) take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in
the normal conduct of its business, except to the extent that failure to do so
would not reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation or non-renewal of which would reasonably be
expected to have a Material Adverse Effect.



     6.06
Maintenance of Properties.



     (a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted, except where the failure to do so
would not reasonably be expected to have a Material Adverse Effect and (b) make
all necessary repairs thereto and renewals and replacements thereof except where
the failure to do so would not reasonably be expected to have a Material Adverse
Effect.



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     6.07
Maintenance of Insurance.



     Maintain with insurance companies A.M. Best rated A or better that are not
Affiliates of the Borrower, 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 and/or maintain a system or systems of self-insurance or assumption of
risk which accords with the practices of similar businesses.



     6.08
Compliance with Laws and Contractual Obligations.



     Comply in all material respects with the requirements of all (a)
Contractual Obligations and (b) Laws (including Environmental Laws and ERISA
matters) and all orders, writs, injunctions and decrees applicable to it or to
its business or property, except in such instances in which (i) such requirement
of Contractual Obligation, Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (ii)
the failure to comply therewith would not reasonably be expected to have a
Material Adverse Effect.



     6.09
Books and Records.



     Maintain proper books of record and account, in which true and correct
entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be.



     6.10
Inspection Rights.



     Except as restricted by law, permit representatives of the Administrative
Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its officers,
and use commercially reasonable efforts to permit and/or authorize discussions
with its independent public accountants, all at the expense of the
Administrative Agent or Lender, as the case may be, at reasonable times during
normal business hours and no more frequently than once during any fiscal year
upon reasonable advance notice through the Administrative Agent to the Borrower;
provided, however, that when an Event of Default exists the Administrative Agent
or any Lender (or any of their respective representatives) may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours.



     6.11
Use of Proceeds.



     Use the proceeds of the Credit Extensions for working capital, capital
expenditures and general corporate purposes (including share repurchases and
permitted Acquisitions) in each case, not in contravention of any Law or of any
Loan Document.



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     6.12 Additional Guarantors.



     The Borrower (a) shall cause each direct and indirect Domestic Subsidiary
(other than an Immaterial Subsidiary) to promptly (and in any event within 30
days) and (b) may cause any Immaterial Subsidiary or foreign Subsidiary to (i)
become a Guarantor by executing and delivering to the Administrative Agent a
joinder agreement reasonably acceptable to the Administrative Agent or such
other document as the Administrative Agent shall reasonably deem appropriate for
such purpose, and (ii) deliver to the Administrative Agent documents of the
types referred to in clauses (iii) and (iv) of Section 4.01(a) and upon the
request of the Administrative Agent, favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to in clause (i)), all
in form, content and scope reasonably satisfactory to the Administrative Agent.



ARTICLE VII

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Loan Parties shall not and shall not permit
their Subsidiaries to:



     7.01 Liens.



     Create, incur, assume or suffer to exist
any Lien upon any of their property, assets or
revenues, whether now owned or hereafter
acquired, other than the following:



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 7.01;



     (c) any renewals or extensions of Liens otherwise permitted hereby
(including in connection with refinancings or refundings of the related
obligations), provided that (i) the property covered thereby is not expanded or
increased, (ii) the principal amount of the obligations secured or benefited
thereby is not increased (except for accrued interest and a reasonable premium
or other reasonable amount paid, and fees and expenses reasonably incurred in
connection with such renewal or extension), (iii) the direct or any contingent
obligor with respect thereto is not changed, and (iv) any renewal or extension
of the obligations secured or benefited thereby is not prohibited by Section
7.03;



     (d) Liens for taxes not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;



     (e) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or
other like Liens arising in the ordinary course of business securing obligations
which are not overdue for a



64









 





period of more than 30 days or which are being
contested in good faith and by appropriate
proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on
the
books of the applicable Person;




     (f) pledges or deposits in the ordinary course of business in connection
with workers’ compensation, unemployment insurance, other social security
legislation, product liability insurance and self-insurance, other than any Lien
imposed by ERISA;



     (g) banker’s Liens, rights of setoff, deposits to secure the performance
of bids, trade contracts and leases (other than Indebtedness), statutory
obligations, surety bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;



     (h) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property 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 materially interfere with the ordinary conduct of the
business of the applicable Person;



     (i) Liens securing judgments not constituting an Event of Default under
Section 8.01(h) or securing appeal or other surety bonds related to such
judgments;



     (j) any Lien on any asset securing the payment of all or part of the price
of the acquisition, construction or improvement of such asset; provided that (i)
such Liens do not at any time encumber any property other than the property
whose acquisition, construction or improvement was financed by such Indebtedness
and the proceeds thereof and (ii) the Indebtedness secured thereby does not
exceed the cost of the property being acquired, constructed or improved;



     (k) any Lien existing on any asset of, or Equity Interest in, any Person
at the time such asset is acquired by or such Person becomes, is merged or
consolidated with or into, or is acquired by, a Subsidiary, which Lien was not
created in contemplation of such event;



     (1) Liens in favor of the Borrower, Liens granted by a Subsidiary that is
not a Loan Party in favor of a Loan Party and Liens granted by a Subsidiary that
is not a Loan Party in favor of a Subsidiary that is not a Loan Party;



     (m) Liens on goods (and the proceeds thereof) and documents of title and
the property covered thereby securing Indebtedness in respect of commercial
letters of credit;



     (n) Liens that have been placed by any developer, landlord or other third
party on property over which the Borrower or any Subsidiary has easement rights
or on any real property leased by the Borrower or any Subsidiary and
subordination or similar agreements relating thereto;



     (o) any condemnation or eminent domain proceedings affecting any real
property;



65









 





     (p) any provision for the retention of title to an asset by vendor or
transferor of such asset which asset is acquired by the Borrower or a Subsidiary
in a transaction entered into in the ordinary course of business;



     (q) Liens on the proceeds of assets that were subject to Liens permitted
hereunder or on assets acquired with such proceeds as a replacement of such
former assets;



     (r) Liens on the assets of any Subsidiary that is not a Guarantor
hereunder, to the extent securing Indebtedness permitted under Section 7.03; and



     (s) Liens on the assets of the Borrower and the Guarantors not otherwise
permitted hereby securing Indebtedness (without duplication) in an aggregate
principal amount at any time outstanding, together with Indebtedness permitted
by Section 7.03(f), not exceeding an amount equal to 5% of the Consolidated Net
Tangible Assets as of the end of the immediately preceding fiscal quarter of the
Borrower at the time of incurrence.



     7.02
Investments.



     Make any Investments, except:


     (a) Investments held by the Borrower or such Subsidiary in
the form of deposit
accounts or cash equivalents;



     (b) advances to officers, directors and employees of the
Borrower and Subsidiaries,
for travel, entertainment, relocation and analogous
ordinary business purposes or in connection
with the award of stock under stock incentive and
stock option plans; provided that all such
advances must be in compliance with applicable Laws,
including, but not limited to, the
Sarbanes-Oxley Act of 2002;



     (c) Investments of the Borrower in any Domestic Subsidiary
and Investments of any
Subsidiary in the Borrower or in a Domestic
Subsidiary;



     (d) Investments in any foreign Subsidiary; provided, that
prior to and after giving
effect to any such Investment, (i) no Default shall
have occurred and be continuing and (ii) the
Consolidated Leverage Ratio of the Borrower
calculated on a Pro Forma Basis shall not exceed
2.25 to 1.0;



     (e) Investments consisting of extensions of credit in the
nature of accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, and
Investments received in satisfaction or partial
satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in
order to prevent or limit loss;



     (f) Investments in the form of Acquisitions; provided, that
prior to and after giving
effect to any Acquisition where the consideration
paid in connection therewith does not solely
consist of Equity Interests of the Borrower, (i) no
Default shall have occurred and be continuing



66









 





and (ii) the Consolidated Leverage Ratio of the
Borrower calculated on a Pro Forma Basis shall
not exceed 2.25 to 1.0;




     (g) Permitted Market Investments other
than Acquisitions;



     (h) Investments existing on the date
hereof and listed on Schedule 7.02 and any
renewals, amendments and replacements thereof
that do not increase the amount thereof;



     (i) prepayments and other credits to
suppliers made in the ordinary course of
business;



     (j) pledges or deposits in connection
with workers’ compensation, unemployment
insurance and other social security or similar
legislation;



     (k) pledges or deposits in connection with (i) the performance of bids,
trade contracts (other than for borrowed money), leases or statutory
obligations, (ii) contingent obligations on surety or appeal bonds, and (iii)
other obligations of a like nature, in each case incurred in the ordinary course
of business;



     (1) operating contracts between or among the Borrower and/or its
Subsidiaries in the ordinary course of business that are not intended to be
Investments;



     (m) Investments consisting of non-cash consideration received in the form
of notes, securities or similar obligations in connection with any sale or other
disposition otherwise permitted by this Agreement;



     (n) Investments in the form of Swap Contracts;



     (o) Investments in the form of prepaid expenses;



     (p) Investments (other than Acquisitions) in other Persons, including,
without limitation, joint ventures, for the purpose of developing, producing,
marketing or distributing goods for the Borrower or any of its Subsidiaries;
provided, that prior to and after giving effect to any such Investment, (i) no
Default shall have occurred and be continuing and (ii) the Consolidated Leverage
Ratio of the Borrower calculated on a Pro Forma Basis shall not exceed 2.25 to
1.0; and



     (q) other Investments (other than Acquisitions) not listed above in an
aggregate amount not to exceed $20,000,000 at any time outstanding, net of
repayments.



     7.03
Non-Loan Party Indebtedness.



     Permit any Subsidiary that is not a Loan Party to create, incur, assume or
suffer to exist any Indebtedness, except:



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     (a) Indebtedness outstanding on the date hereof and listed on
Schedule 7.03 and any
refinancings, refundings, renewals or extensions
thereof; provided that the amount of such
Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension
except by an amount equal to accrued interest and a
reasonable premium or other reasonable
amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing,
refunding, renewal or extension and by an amount
equal to any existing commitments unutilized
thereunder;



     (b) Indebtedness in respect of capital leases, Synthetic
Lease Obligations and
obligations for all or part of the price of the
acquisition, construction or improvement of fixed or
capital assets within the limitations set forth in
Section 7.01 (j); provided, however, that the
aggregate amount of all such Indebtedness at any one
time outstanding shall not exceed
$15,000,000;



     (c) Indebtedness owing to a Loan Party or owing to another
Subsidiary that is not a
Loan Party to the extent the making of such loan by
such Loan Party or Subsidiary that is not a
Loan Party is permitted by Section 7.02:



     (d) Swap Contracts not entered into for any speculative
purpose but to manage a
Subsidiary’s risks in respect of fluctuations in
interest rates, currency exchange rates, or similar
risks or for any other valid business purposes;



     (e) Indebtedness in respect of performance bonds, bid bonds,
appeal bonds, surety
bonds and similar obligations, in each case provided
in the ordinary course of business; and



     (f) secured or unsecured Indebtedness in an aggregate
principal amount not to exceed
5% of the Consolidated Net Tangible Assets as of the
end of the immediately preceding fiscal
quarter of the Borrower at the time of incurrence.



     7.04
Fundamental Changes.



     Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person, except that, so long as no Default exists or would
result therefrom:



     (a) any Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person or (ii) any one or more
Persons, provided that when any Guarantor is merging with another Person which
is not a Guarantor hereunder, the continuing or surviving Person shall be or
become a Guarantor;



     (b) any Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or to another
Subsidiary; provided that if the transferor in such a transaction is a
Guarantor, then the transferee must either be the Borrower or a Guarantor; and



68









 





     (c) any Subsidiary may liquidate or dissolve or the Borrower or any
Subsidiary may sell, transfer, lease or otherwise Dispose of the assets or
Equity Interests of any Subsidiary if, in each case, the Borrower determines in
good faith that such liquidation, dissolution, sale, transfer, lease or other
Disposition is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders.



     7.5
[Intentionally Omitted.]



     7.6 Restricted Payments.



     Declare or make, directly or indirectly, any
Restricted Payment except that:



     (a) each Subsidiary may make Restricted Payments to the
Borrower, the Guarantors
and ratably to any other Person that owns an Equity
Interest in such Subsidiary;



     (b) the Borrower and each Subsidiary may declare and make
dividend payments or
other distributions payable solely in the common
stock or other common Equity Interests of such
Person;



     (c) the Borrower and each Subsidiary may purchase, redeem or
otherwise acquire
Equity Interests issued by it with the proceeds
received from the substantially concurrent issue of
new shares of its common stock or other common Equity
Interests; and



     (d) the Borrower may declare or pay cash dividends to its
stockholders and purchase,
redeem or otherwise acquire for cash Equity Interests
issued by it; provided, that prior to and
after giving effect to any such dividend to its
shareholders or any such purchase, redemption or
other acquisition of Equity Interests (i) no Default
shall have occurred and be continuing and (ii)
the Consolidated Leverage Ratio calculated on a Pro
Forma Basis shall not exceed 2.25 to 1.0.



     7.07 Change in Nature of Business.



     Engage in any material line of business
substantially different from those lines of
business conducted by the Borrower and its
Subsidiaries on the date hereof or any business
substantially related, incidental or
complementary thereto.



     7.08 Transactions with Affiliates.



     Enter into any transaction of any kind
with any Affiliate of the Borrower, whether or
not
in the ordinary course of business, other than
on fair and reasonable terms substantially as
favorable to the Borrower or such Subsidiary as
would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an
Affiliate; provided that the foregoing
restriction shall not apply to (a) transactions
between or
among the Borrower and/or the Subsidiaries
and/or any other Person in which the Borrower or
Subsidiary owns an Equity Interest (provided
that no Affiliate of the Borrower or any
Subsidiary,
other than such Borrower or a Subsidiary owns
any Equity Interests in such other Person), (b)
Restricted Payments permitted by Section 7.06,
(c) Investments permitted by Section 7.02, (d)



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transactions in connection with any joint enterprise or other joint arrangement
with any Affiliate if the Borrower or relevant Subsidiary (as applicable)
participates on a basis no less advantageous than the basis on which such
Affiliate participates, (e) the payment or grant of reasonable compensation,
benefits and indemnities to any director, officer, employee or agent of the
Borrower or any Subsidiary and (f) transactions and agreements in existence on
the date hereof and listed on Schedule 7.08, transactions pursuant to such
agreements, renewals and extensions of such agreements and transactions after
the date hereof on terms that are substantially similar to the terms of such
agreements.




     7.09 Burdensome Agreements.



     Enter into any Contractual Obligation
(other than this Agreement or any other Loan
Document) that:



     (a) Limits the ability (i) of any
Subsidiary to make Restricted Payments to the
Borrower or any Guarantor or to otherwise
transfer property to the Borrower or any
Guarantor,
(ii) of any Subsidiary to Guarantee the
Obligations or (iii) of the Borrower or any
Subsidiary to
create, incur, assume or suffer to exist Liens
on property of such Person to secure the
Obligations
hereunder; provided, however, that the
foregoing shall not apply to:




            (A) limitations existing under or by reason of any agreement in
effect on the Closing Date and set forth on Schedule 7.09;




            (B) with respect to clause (a)(i) above, encumbrances or
restrictions existing under or by reason of any document or
instrument governing Indebtedness permitted hereunder, provided that
the encumbrances and restrictions are not materially more
restrictive than the corresponding encumbrances and restrictions
contained in the Loan Documents;




            (C) limitations on the transfer of assets subject to a Lien
permitted under Section 7.01 to the extent such limitation relates
solely to the assets which are the subject of such Lien;




            (D) customary limitations on subletting or assignment of any
lease governing a leasehold interest of the Borrower or any
Subsidiary;




            (E) limitations on the transfer of any
property subject to a contract of sale or
transfer so long as such limitations apply only
to the property to be sold or transferred
and such sale or transfer is permitted under
this Agreement;




            (F) limitations existing under or by
reason of any agreement of a Person
acquired by the Borrower or any Subsidiary as
in effect at the time of such acquisition
(but not created in connection with or in
contemplation of such acquisition), to the
extent
that the relevant limitations therein are not
applicable to any Person, or the properties or
assets of any Person, other than the Person, or
the property or assets of the Person so
acquired;



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            (G) with respect to clauses (a)(i)
and (a)(iii) above, customary limitations
(including financial maintenance
covenants) existing under or by reason of
leases entered
into in the ordinary course of business;




            (H) customary limitations in joint
venture agreements that relate solely to
the
joint venture;




            (I) limitations existing under or
by reason of Indebtedness of any
Subsidiary
other than a Loan Party that relate
solely to such Subsidiary and are in the
ordinary
course of business; and




            (J) any amendments, modifications,
restatements, renewals, increases,
supplements, refundings, replacements or
refinancings of the contracts,
instruments or
obligations referred to in clauses (A)
through (I) above, provided that such
amendments,
modifications, restatements, renewals,
increases, supplements, refundings,
replacements
or refinancings, are, in the good faith
judgment of the Borrower, not materially
less
favorable to the Loan Parties and the
Lenders with respect to such limitations
than those
contained in the contracts, instruments
or obligations prior to such amendment,
modification, restatement, renewal,
increase, supplement, refunding,
replacement or
refinancing; or



     (b) Requires the grant of a Lien to secure an obligation of such Person if
a Lien is granted to secure the Obligations, except for limitations,
encumbrances or restrictions referenced in clauses (A), (B), (F), (I) or (J) of
Section 7.09(a).



     7.10 Use of Proceeds.



     Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether
immediately, incidentally or ultimately, to
purchase or carry margin stock (within the
meaning of
Regulation U of the FRB) or to extend credit to
others for the purpose of purchasing or carrying
margin stock or to refund indebtedness
originally incurred for such purpose, except,
in each case,
in compliance with law (including Regulations U
and X of the FRB).



     7.11 Financial Covenants.



     (a) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the
Borrower to be less than 3.00 to 1.00.



     (b) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as of the
end of any fiscal quarter of the Borrower to be
greater than 3.00 to 1.00.



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ARTICLE VIII

 

EVENTS OF DEFAULT AND REMEDIES




     8.01
Events of Default.



     Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower or any other Loan Party 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 three days after the same becomes due, any
interest on any Loan or on any L/C
Obligation, or any fee due hereunder, or (iii) within
five days after the same becomes due, any
other amount payable hereunder or under any other
Loan Document; or



     (b) Specific Covenants. The Borrower or any other Loan Party
fails to perform or
observe any term, covenant or agreement contained in
(i) Section 6.01. 6.02, 6.03, or 6.10 and
such failure continues for 5 days after the earlier
of a Responsible Officer becoming aware of
such Default or notice thereof by the Administrative
Agent or any Lender or (ii) Section 6.05
(with respect to corporate existence), or 6.11 or
Article VII, or in Article XI: or



     (c) Other Defaults. The Borrower or any other Loan Party
fails to perform or observe
any other covenant or agreement (not specified in
subsection (a) or (b) above) contained in any
Loan Document on its part to be performed or observed
and such failure continues for 30 days
after the earlier of a Responsible Officer becoming
aware of such Default or notice thereof by the
Administrative Agent or any Lender; or



     (d) Representations and Warranties. Any representation,
warranty, certification or
statement of fact made or deemed made by or on behalf
of the Borrower or any other Loan Party
herein, in any other Loan Document, or in any
document delivered in connection herewith or
therewith (i) that contains a materiality
qualification shall prove to have been incorrect when
made or deemed made and (ii) that does not contain a
materiality qualification shall prove to
have been incorrect in any material respect when made
or deemed made; or



     (e) Cross-Default, (i) The Borrower or any Subsidiary (A)
fails to make any payment
when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or
otherwise, but in any event beyond any period of
grace or cure therein provided) in respect of
any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount
(including amounts owing to all creditors under
any combined or syndicated credit arrangement) of
more than $35,000,000, or (B) fails to
observe or perform, beyond any period of grace or
cure therein provided, any other agreement or
condition relating to any such Indebtedness or
Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto,
or any other event occurs, the effect of which
default or other event is to cause, or to permit the
holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or



72









 





redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated maturity, or
such Guarantee 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) resulting from (A) any event of default under
such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event (as so
defined) under such Swap Contract as to which the Borrower or any Subsidiary is
an Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by the Borrower or such Subsidiary as a result thereof is greater
than $35,000,000; provided that this subsection (e) shall not apply to any
repayment, put or similar provision which permits any holder of any Indebtedness
of the Borrower to compel the Borrower to repay, convert into Capital Stock, or
offer to repay all or any portion of such Indebtedness prior to the stated
maturity of such Indebtedness as long as such repayment, put or similar
provision is not triggered by a default, event of default or change of control
which permits such Indebtedness to be declared due and payable prior to its
stated maturity; or




     (f) Insolvency Proceedings. Etc. The Borrower or any
Subsidiary (other than an
Immaterial Subsidiary) institutes or consents to the
institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents
to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part
of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the
application or consent of such Person and the
appointment continues undischarged or unstayed
for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person
or to all or any material part of its property is
instituted without the consent of such Person and
continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any
such proceeding; or



     (g) Inability to Pay Debts: Attachment, (i) The Borrower or any Subsidiary
(other than an Immaterial Subsidiary) becomes unable or admits in writing its
inability or fails generally to pay its debts as they become due, or (ii) any
writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 30 days after its issue or levy;
or



     (h) Judgments. There is entered against the Borrower or any Subsidiary
(other than an Immaterial Subsidiary) (i) a final judgment or order for the
payment of money in an aggregate amount exceeding $35,000,000 (to the extent not
covered by independent third-party insurance as to which the insurer does not
dispute coverage), or (ii) any one or more non-monetary final judgments that
have, or would reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect and, in either case, (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period
of 60 consecutive days during which (i) a stay of enforcement of such judgment,
by reason of a pending appeal or otherwise, is not in effect and (ii) such
judgment or order has not been paid, vacated or discharged; or



73









 





     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or would reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $10,000,000,
or (ii) the Borrower or any ERISA Affiliate fails 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 $10,000,000; or



     (j) Invalidity of Loan Documents. Any
provision of 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; or any Loan Party or any other Person
contests in any manner the validity or
enforceability of any provision of any Loan
Document; or any Loan Party denies that it has
any
or further liability or obligation under any
Loan Document, or purports to revoke, terminate
or
rescind any provision of any Loan Document; or



     (k) Change of Control. There occurs any
Change of Control.



     8.02
Remedies Upon Event of Default.



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



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



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



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



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



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



74









 





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 and amounts payable under Article III), ratably among
them in proportion to the amounts
described in this clause Second payable to them;



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



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



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



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



     Subject to Section 2.03(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.



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ARTICLE IX

 

ADMINISTRATIVE AGENT




     9.01
Appointment and Authority.



     Each of the Lenders and the L/C Issuer hereby irrevocably
appoints Bank of America to
act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its
behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with
such actions and powers as are reasonably incidental thereto.
The provisions of this Article are
solely for the benefit of the Administrative Agent, the Lenders
and the L/C Issuer, and neither
the Borrower nor any other Loan Party shall have rights as a
third party beneficiary of any of
such provisions.



     9.02
Rights as a Lender.



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



     9.03
Exculpatory Provisions.



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




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




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



76









 






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



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



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



     9.04
Reliance by Administrative Agent.



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



77









 





     9.05
Delegation of Duties.



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



     9.06
Resignation of Administrative Agent.



     The Administrative Agent may at any time give notice of
its resignation to the Lenders,
the L/C Issuer and the Borrower. Upon receipt of any such notice
of resignation, the Required
Lenders shall have the right, with, so long as no Default or
Event of Default shall have occurred
or be continuing, the Borrower’s consent (which consent shall
not be unreasonably withheld), 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, with, so long as no
Default or Event of Default shall have occurred or be
continuing, the Borrower’s consent (which
consent shall not be unreasonably withheld), appoint a successor
Administrative Agent meeting
the qualifications set forth above; provided that if the
Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted
such appointment, then such
resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and
obligations hereunder and under the
other Loan Documents and (2) all payments, communications and
determinations provided to be
made by, to or through the Administrative Agent shall instead be
made by or to each Lender and
the L/C Issuer directly, until such time as the Required Lenders
appoint a successor
Administrative Agent as provided for above in this Section. Upon
the acceptance of a
successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and
become vested with all of the rights, powers, privileges and
duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent
shall be discharged from all of its
duties and obligations hereunder or under the other Loan
Documents (if not already discharged
therefrom as provided above in this Section). The fees payable
by the Borrower to a successor
Administrative Agent shall be the same as those payable to its
predecessor unless otherwise
agreed between the Borrower and such successor. After the
retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the
provisions of this Article and
Section 10.04 shall continue in effect for the benefit of such
retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was
acting as Administrative
Agent.



78









 





     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 or Arrangers
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.



     9.09
Administrative Agent May File Proofs of Claim.



     In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether
the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or
by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made
any demand on the Borrower)
shall be entitled and empowered, by intervention in such
proceeding or otherwise




      (a) to file and prove a claim for the whole amount
of the principal and interest
owing and unpaid in respect of the Loans, L/C Obligations
and all other Obligations that
are owing and unpaid and to file such other documents as
may be necessary or advisable
in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent
(including any claim for the reasonable compensation,
expenses, disbursements and
advances of the Lenders, the L/C Issuer and the
Administrative Agent and their
respective agents and counsel and all other amounts due
the Lenders, the L/C Issuer and



79








 






the Administrative Agent under Sections 2.03(1) and (j),
2.09 and 10.04) allowed in such
judicial proceeding; and




      (b) to collect and receive any monies or other
property payable or deliverable
on any such claims and to distribute the same;



     and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer
to make such payments to the Administrative Agent and, in the
event that the Administrative
Agent shall consent to the making of such payments directly to
the Lenders and the L/C Issuer,
to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its
agents and counsel, and any
other amounts due the Administrative Agent under Sections 2.09
and 10.04.



     Nothing contained herein shall be deemed to authorize the
Administrative Agent to
authorize or consent to or accept or adopt on behalf of any
Lender or the L/C Issuer any plan of
reorganization, arrangement, adjustment or composition affecting
the Obligations or the rights of
any Lender or to authorize the Administrative Agent to vote in
respect of the claim of any
Lender in any such proceeding.



     9.10
Guaranty Matters.




      (a) If any Domestic Subsidiary that has become a Loan Party
solely because of the
requirements of Section 6.12 subsequently owns assets (book
value) which constitute less than
five percent (5.00%) of the aggregate book value of the
Consolidated Assets for a period of two
consecutive fiscal quarters or if a Guarantor ceases to be a
Subsidiary as a result of a transaction
permitted hereunder, then such Domestic Subsidiary shall be
released as a Guarantor upon the
written request of the Borrower and shall no longer be a Loan
Party hereunder.
(b) Subject to clause (a) above, the Lenders and the L/C
Issuer irrevocably authorize
the Administrative Agent, to release any Guarantor from its
obligations under Article XI. Upon
request by the Administrative Agent at any time, the Required
Lenders will confirm in writing
the Administrative Agent’s authority to release any Guarantor
from its obligations under Article
XI pursuant to this Section 9.10.



ARTICLE X




MISCELLANEOUS




     10.01
Amendments, Etc.



     No amendment or waiver of any provision of this Agreement
or any other Loan
Document, and no consent to any departure by the Borrower or
any other Loan Party therefrom,
shall be effective unless in writing signed by the Required
Lenders and the Borrower or the
applicable Loan Party, as the case may be, and acknowledged by
the Administrative Agent, and



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     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) 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;




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




      (c) reduce the principal of, or the rate of interest
specified herein on, any Loan
or L/C Borrowing, or (subject to clause (iv) of the second
proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any
other Loan Document, or
change the manner of computation of any financial ratio
(including any change in any
applicable defined term) to the extent used in determining
the Applicable Rate that would
result in a reduction of any interest rate on any Loan or
any fee payable hereunder
without the written consent of each Lender directly
affected thereby; provided, however,
that only the consent of the Required Lenders shall be
necessary to amend the definition
of “Default Rate” or to waive any obligation of the
Borrower to pay interest or Letter of
Credit Fees at the Default Rate;




      (d) change Section 2.13 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;




      (e) 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; or




      (f) release all or substantially all of the Guarantors from
their Obligations
under Article XI 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; and (iv) the Fee Letters 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



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amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not
be increased or extended without the consent of such Lender.




     10.02 Notices; Effectiveness; Electronic Communication.



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




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




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



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



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



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



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its e-mail address as described in the foregoing clause (i) of
notification that such notice or
communication is available and identifying the website address
therefor.




     (c) Change of Address, Etc. Each of the Borrower, the
Administrative Agent, the
L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number or
e-mail address for notices and other communications hereunder by
notice to the other parties
hereto. Each other Lender may change its address, telecopier
or telephone number or e-mail
address for notices and other communications hereunder by notice
to the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.



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



     10.03
No Waiver; Cumulative Remedies.



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



     10.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees,
charges and disbursements of counsel for the Administrative
Agent), in connection with the
syndication of the credit facilities provided for herein, the
preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan
Documents or any
amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the
transactions contemplated hereby or thereby shall be
consummated) but notwithstanding the
foregoing, the Borrower shall not be responsible for the fees,
charges or disbursements of more
than one firm of legal counsel, (ii) all reasonable
out-of-pocket expenses incurred by the L/C




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Issuer in connection with the issuance, amendment, renewal or
extension of any Letter of Credit
or any demand for payment thereunder but notwithstanding the
foregoing, the Borrower shall not
be responsible for the fees, charges or disbursements of more
than one firm of legal counsel 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), in connection with the
enforcement or protection of its
rights during the existence of a Default or an Event of Default
(A) in connection with this
Agreement and the other Loan Documents, including its rights
under this Section, or (B) in
connection with the Loans made or Letters of Credit issued
hereunder, including all such
out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of
such Loans or Letters of Credit.




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



     (c) Reimbursement by Lenders. To the extent that the Borrower
for any reason fails
to indefeasibly pay any amount required under subsection (a) or
(b) of this Section to be paid by
it to the Administrative Agent (or any sub-agent thereof), the
L/C Issuer or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any



84









 





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 2.12(d).




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



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



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



     10.05 Payments Set Aside.



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



85









 





the preceding sentence shall survive the payment in full of the
Obligations and the termination of
this Agreement.




     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of
this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and
assigns permitted hereby, except that neither the Borrower nor
any other Loan Party 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, or (iii) by
way of pledge or assignment of a
security interest subject to the restrictions of subsection (f)
of this Section (and any other
attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the
parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the L/C
Issuer and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this
Agreement.



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




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




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



86









 






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




            (iv) the parties to each assignment shall execute
and deliver to the
Administrative Agent an Assignment and Assumption,
together with a processing and
recordation fee 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 10.04 with respect to facts and circumstances
occurring prior to the effective date of
such assignment. Upon request, the Borrower (at its expense)
shall execute and deliver a Note to
the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this
Agreement that does not comply with this subsection shall be
treated for purposes of this
Agreement as a sale by such Lender of a participation in such
rights and obligations in
accordance with subsection (d) of this Section.



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



87









 





participations in L/C Obligations and/or Swing Line Loans)
owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the
performance of such obligations and (iii) the
Borrower, the Administrative Agent, the Lenders and the L/C
Issuer shall continue to deal solely
and directly with such Lender in connection with such Lender’s
rights and obligations under this
Agreement.




     Any agreement or instrument pursuant to which a Lender
sells such a participation shall
provide that such Lender shall retain the sole right to enforce
this Agreement and to approve any
amendment, modification or waiver of any provision of this
Agreement; provided that such
agreement or instrument may provide that such Lender will not,
without the consent of the
Participant, agree to any amendment, waiver or other
modification described in the first proviso
to Section 10.01 that affects such Participant. Subject to
subsection (e) of this Section, the
Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment
pursuant to subsection (b) of this Section.



     (e) Limitations upon Participant Rights. A Participant shall
not be entitled to receive
any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been
entitled to receive with respect to the participation sold to
such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s
prior written consent. A
Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits
of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and
such Participant agrees, for the benefit of the Borrower, to
comply with Section 3.01(e) and
Section 3.06(a) as though it were a Lender.



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



     (g) Notwithstanding anything to the contrary contained
herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding
vehicle (a “SPC”), identified as such
in writing from time to time by the Granting Lender to the
Administrative Agent and the
Borrower, the option to provide to the Borrower all or any part
of any Loan that such Granting
Lender would otherwise be obligated to make to the Borrower
pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment
by any SPC to make any Loan, (ii)
if an SPC elects not to exercise such option or otherwise fails
to provide all or any part of such
Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof.
The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender
to the same extent as, and as if, such Loan were made by such
Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with
the Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the



88









 





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 indebtedness 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 proceedings under the laws
of the United States or any State thereof. In addition,
notwithstanding anything to the contrary
contained in this Section 10.06, any SPC may (i) with notice to,
but (except as provided below)
without the prior written consent of, the Borrower and the
Administrative Agent and without
paying any processing fee therefor, assign all or a portion of
its interests in any Loans to the
Granting Lender or to any financial institutions (consented to
by the Borrower and
Administrative Agent) providing liquidity and/or credit support
to or for the account of such SPC
to support the funding or maintenance of Loans and (ii) disclose
on a confidential basis any non-
public information relating to its Loans to any rating agency,
commercial paper dealer or
provider of any surety, guarantee or credit or liquidity
enhancement to such SPC (it being agreed
that each SPC shall be bound by the provisions of Section 10.7
to the same extent as if it were a
Lender). This section may not be amended without the written
consent of the SPC.




     (h) 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.



     (i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon 30 days’ notice to the Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights 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 2.03(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 2.04(c).



89









 





     10.07
Treatment of Certain Information; Confidentiality.



     Each of the Administrative Agent, the Lenders and the L/C
Issuer agrees to maintain the
confidentiality of the Information (as defined below), except
that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees,
agents, advisors and representatives (it being understood that
the Persons to whom such
disclosure is made will be informed of the confidential nature
of such Information and instructed
to keep such Information confidential), (b) to the extent
requested by any regulatory authority
purporting to have jurisdiction over it (including any
self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the
extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under
any other Loan Document or
any action or proceeding relating to this Agreement or any other
Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions
substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or
obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the
consent of the Borrower or (h) to the
extent such Information (x) becomes publicly available other
than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent,
any Lender, the L/C Issuer or any
of their respective Affiliates on a nonconfidential basis from a
source other than the Borrower.



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



     10.08
Right of Setoff.



     If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer
and each of their respective Affiliates is hereby authorized at
any time and from time to time, to
the fullest extent permitted by applicable law, to set off and
apply any and all deposits (general
or special, time or demand, provisional or final, in whatever
currency) at any time held and other
obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such
Affiliate to or for the credit or the account of the Borrower or
any other Loan Party against any
and all of the obligations of the Borrower or such Loan Party
now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C
Issuer, irrespective of
whether or not such Lender or the L/C Issuer shall have made any
demand under this Agreement
or any other Loan Document and although such obligations of the
Borrower or such Loan Party
may be contingent or unmatured or are owed to a branch or office
of such Lender or the L/C



90









 





Issuer different from the branch or office holding such deposit
or obligated on such indebtedness.
The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in
addition to other rights and remedies (including other rights of
setoff) that such Lender, the L/C
Issuer or their respective Affiliates may have. Each Lender and
the L/C Issuer agrees to notify
the Borrower and the Administrative Agent promptly after any
such setoff and application,
provided that the failure to give such notice shall not affect
the validity of such setoff and
application.




     10.09
Interest Rate Limitation.



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



     10.10
Counterparts; Integration; Effectiveness.



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



     10.11
Survival of Representations and Warranties.



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



91









 





long as any Loan or any other Obligation hereunder shall remain
unpaid or unsatisfied or any
Letter of Credit shall remain outstanding.




     10.12
Severability.



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



     10.13
Replacement of Lenders.



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




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


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


      (c) in
the case of any such assignment resulting from
a claim for
compensation under Section 3. 04 or payments required to
be made pursuant to
Section 3.01. such assignment will result in a reduction
in such compensation or
payments thereafter; and


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



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



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     10.14
Governing Law; Jurisdiction; Etc.



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



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



     (c) WAIVER OF VENUE. EACH PARTY 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 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.



93










 





     10.15 Waiver of Jury Trial.



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



     10.16 USA PATRIOT Act Notice.



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



ARTICLE XI




GUARANTY




     11.01 The Guaranty.



     Each of the Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate of a Lender
that enters into a Swap Contract, and the Administrative Agent as hereinafter provided, as primary obligor and
not as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof. The Guarantors hereby further agree that if any of the Obligations are not
paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without
any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of
the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of
such extension or renewal.



94









 





     Notwithstanding any provision to the contrary contained herein or in any other of
the Loan Documents or Swap Contracts, the obligations of each Guarantor under this
Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the
largest amount that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable state law.



     11.02 Obligations Unconditional.



     The obligations of the Guarantors under Section 11.01 are joint and several,
absolute and unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Loan Documents or Swap Contracts, or any other agreement or
instrument referred to therein, or any substitution, release, impairment or exchange of any
other guarantee of or security for any of the Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it
being the intent of this Section 11.02 that the obligations of the Guarantors hereunder
shall be absolute and unconditional under any and all circumstances. Each Guarantor agrees
that such Guarantor shall have no right of subrogation, indemnity, reimbursement or
contribution against the Borrower or any other Guarantor for amounts paid under this
Article XI until such time as the Obligations have been fully satisfied. Without limiting
the generality of the foregoing, it is agreed that, to the fullest extent permitted by law,
the occurrence of any one or more of the following shall not alter or impair the liability
of any Guarantor hereunder which shall remain absolute and unconditional as described above:




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




      (b) any of the acts mentioned in any of the provisions of any of the Loan
Documents, any Swap Contract between any Loan Party and any Lender, or any Affiliate
of a Lender, or any other agreement or instrument referred to in the Loan Documents or
such Swap Contracts shall be done or omitted;




      (c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right
under any of the Loan Documents, any Swap Contract between any Loan Party and any
Lender, or any Affiliate of a Lender, or any other agreement or instrument referred to
in
the Loan Documents or such Swap Contracts shall be waived or any other guarantee of
any of the Obligations or any security therefor shall be released, impaired or
exchanged
in whole or in part or otherwise dealt with;




      (d) any of the Obligations shall be determined to be void or voidable
(including, without limitation, for the benefit of any creditor of any Guarantor) or
shall be
subordinated to the claims of any Person (including, without limitation, any creditor
of
any Guarantor).



95









 





     With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment,
demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any
Lender exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents, any Swap
Contract between any Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Loan Documents or such Swap Contracts, or against any other Person under any other
guarantee of, or security for, any of the Obligations.



     11.03 Reinstatement.



     The obligations of the Guarantors under this Article XI shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded
or must be otherwise restored by any holder of any of the Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Administrative
Agent and each Lender on demand for all reasonable costs and expenses (including, without limitation, fees and
expenses of counsel) incurred by the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.



     11.04 Certain Additional Waivers.



     Without limiting the generality of the provisions of this Article XI, each Guarantor hereby specifically
waives the benefits of N.C. Gen. Stat. §§ 26-7 through 26-9, inclusive, to the extent applicable. Each Guarantor
further agrees that such Guarantor shall have no right of recourse to security for the Obligations, except
through the exercise of rights of subrogation pursuant to Section 11.02 and through the exercise of rights of
contribution pursuant to Section 11.06.



     11.05 Remedies.



     The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one
hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations may be declared to be
forthwith due and payable as provided in Section 8.02 (and shall be deemed to have become automatically due and
payable in the circumstances provided in the proviso to Section 8.02) for purposes of Section 11.01
notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the
Obligations from becoming automatically due and payable) as against any other Person and that, in the event of
such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations
(whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 11.01. The Guarantors acknowledge and agree that to the extent their obligations
hereunder become secured, the Lenders may exercise their remedies thereunder in accordance with the terms of the
applicable security documents.



96









 





     11.06 Rights of Contribution.



     The Guarantors hereby agree as among themselves that, in connection with payments made hereunder, each
Guarantor shall have a right of contribution from each other Guarantor in accordance with applicable Law. Such
contribution rights shall be subordinate and subject in right of payment to the Obligations until such time as
the Obligations have been fully satisfied, and none of the Guarantors shall exercise any such contribution rights
until the Obligations have been fully satisfied.



     11.07 Guarantee of Payment; Continuing Guarantee.



     The guarantee in this Article XI is a guaranty of payment and not of collection, is a continuing
guarantee, and shall apply to all Obligations whenever arising.



97









 






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


	 	 	 	 	 
	 	BARR PHARMACEUTICALS, INC.,

a Delaware corporation,

 	 
	 	By:  	/s/ Paul M. Bisaro
 	 
	 	Name:   Paul M. Bisaro 	 
	 	Title:   Senior Vice President 	 
	 



	 	 	 	 	 
	 	BARR LABORATORIES, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Paul M. Bisaro
 	 
	 	Name:   Paul M. Bisaro 	 
	 	Title:   President and Chief Operating Officer 	 
	 



	 	 	 	 	 
	 	BARR DISTRIBUTION COMPANY,

a Delaware corporation

 	 
	 	By:  	/s/ Paul M. Bisaro
 	 
	 	Name:   Paul M. Bisaro	 
	 	Title:  President 	 
	 



	 	 	 	 	 
	 	DURAMED PHARMACEUTICALS, INC.,

a Delaware_corporation

 	 
	 	By:  	/s/ Paul M. Bisaro
 	 
	 	Name:   Paul M. Bisaro 	 
	 	Title:   President and Chief Operating Officer 	 
	 





 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., 

as Administrative Agent

 	 
	 	By:  	/s/ Phil S. Durand
 	 
	 	Name:   Phil S. Durand 	 
	 	Title:   Managing Director 	 







 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., 

as a Lender, L/C Issuer and

Swing Line-Lender

 	 
	 	By:  	/s/ Phil S. Durand
 	 
	 	 	Name:  	Phil S. Durand  	 
	 	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, as a Lender

 	 
	 	By:  	/s/  Dennis J. McSherry
 	 
	 	Name:   Dennis J. McSherry 	 
	 	Title:     Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITICORP NORTH AMERICA, INC., 

as a Lender

 	 
	 	By:  	/s/  Allen Fisher
 	 
	 	Name:   Allen Fisher 	 
	 	Title:     Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CREDIT SUISSE FIRST BOSTON, acting through its

Cayman Islands Branch, as a Lender

 	 
	 	By:  	/s/  Jay Chall
 	 
	 	Name:   Jay Chall 	 
	 	Title:     Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                                    /s/  Karim Blasetti
 	 
	 	Name:   Karim Blasetti 	 
	 	Title:     Associate 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/
James A. Taylor
 	 
	 	Name:   James A. Taylor 	 
	 	Title:     Vice President 	 
	 



	 	 	 	 	 



 









 






	 	 	 	 	 
	 	THE BANK OF NEW YORK, as a Lender

 	 
	 	By:  	/s/ Thomas J. McCormack
 	 
	 	Name:   Thomas J. McCormack 	 
	 	Title:      Vice President