Exhibit 10.1


 


Execution Version


 




 





 


CREDIT
AGREEMENT


 


Dated as of October 16,
2008


 


among


 


VALMONT
INDUSTRIES, INC.


 


and


 


CERTAIN
SUBSIDIARIES OF VALMONT INDUSTRIES, INC.,


as Borrowers,


 


BANK OF
AMERICA, N.A.,


as Administrative Agent, Swing
Line Lender, L/C Issuer and


Alternative Currency Funding
Fronting Lender,


 


BANC OF
AMERICA SECURITIES ASIA LIMITED,


as Singapore Loan Agent,


 


BANK OF
AMERICA, N.A.  SINGAPORE BRANCH,


as  Singapore
Borrowing Funding Fronting Lender,


 


and


 


The Other Lenders Party Hereto


 


U.S. BANK,
NATIONAL ASSOCIATION


and


WELLS
FARGO BANK, N.A.,


as Co-Syndication Agents


 


BANC OF
AMERICA SECURITIES LLC,

as 

Sole Lead Arranger and Sole Book Manager


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE I.

  	
   

  	
   

  
	
   

  	
  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.02

  	
  Other Interpretive Provisions

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  1.03

  	
  Accounting Matters

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  1.04

  	
  Rounding

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  1.05

  	
  Exchange Rates; Currency Equivalents

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  1.06

  	
  Additional Alternative Currencies

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  1.07

  	
  Change of Currency

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  1.08

  	
  Times of Day

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  1.09

  	
  Letter of Credit Amounts

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  1.10

  	
  Alternative Basis of Interest or Funding

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE II.

  	
   

  	
   

  
	
   

  	
  THE COMMITMENTS AND CREDIT EXTENSIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.01

  	
  Committed Loans

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  2.02

  	
  Borrowings, Conversions and Continuations of Committed Loans

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  2.03

  	
  Letters of Credit

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  2.04

  	
  Swing Line Loans

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  2.05

  	
  Prepayments

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  2.06

  	
  Termination or Reduction of Commitments

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  2.07

  	
  Repayment of Loans

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  2.08

  	
  Interest

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  2.09

  	
  Fees

  	
   

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  2.10

  	
  Computation of Interest and Fees; Retroactive Adjustments of
  Applicable Rate

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  2.11

  	
  Evidence of Debt

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  2.12

  	
  Payments Generally; Administrative Agent’s Clawback

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  2.13

  	
  Sharing of Payments by Lenders

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  2.14

  	
  Designated Borrowers

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  2.15

  	
  Increase in Commitments

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  



 


i

















 


	
   

  	
  ARTICLE III.

  	
   

  	
   

  
	
   

  	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  3.02

  	
  Illegality

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  3.03

  	
  Inability to Determine Rates

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  3.04

  	
  Increased Costs; Reserves on Eurocurrency Rate Loans

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  3.05

  	
  Compensation for Losses

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  3.06

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  3.07

  	
  Survival

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IV.

  	
   

  	
   

  
	
   

  	
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions of Initial Credit Extension

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  4.02

  	
  Conditions to all Credit Extensions

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE V.

  	
   

  	
   

  
	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.01

  	
  Subsidiaries; Capitalization

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  5.02

  	
  Existence and Power

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  5.03

  	
  Authority and Execution

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  5.04

  	
  Binding Agreement

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  5.05

  	
  Litigation

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  5.06

  	
  Required Consents

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  5.07

  	
  Absence of Defaults; No Conflicting Agreements

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  5.08

  	
  Compliance and Applicable Laws

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  5.09

  	
  Taxes

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  5.10

  	
  Government Regulations

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  5.11

  	
  Federal Reserve Regulations; Use of Loan Proceeds

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  5.12

  	
  Plans

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  5.13

  	
  Financial Statements

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  5.14

  	
  Property

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  5.15

  	
  Authorizations

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  5.16

  	
  Environmental Matters

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  5.17

  	
  Absence of Certain Restrictions

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
  5.18

  	
  No Misrepresentation

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
  5.19

  	
  Taxpayer Identification Number; Other Identifying Information

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
  5.20

  	
  Representations as to Foreign Obligors

  	
   

  	
  85

  



 


ii

















 


	
   

  	
  ARTICLE VI.

  	
   

  	
   

  
	
   

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.01

  	
  Financial Statements and Information

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
  6.02

  	
  Certificates; Other Information

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  
	
  6.03

  	
  Legal Existence

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  6.04

  	
  Taxes

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  6.05

  	
  Insurance

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  6.06

  	
  Performance of Obligations

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  6.07

  	
  Condition of Property

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  6.08

  	
  Observance of Legal Requirements

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
  6.09

  	
  Inspection of Property; Books and Records; Discussions

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
  6.10

  	
  Authorizations

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
  6.11

  	
  Financial Covenants

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
  6.12

  	
  Subsidiaries

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
  6.13

  	
  Approvals and Authorizations

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  
	
  6.14

  	
  Use of Proceeds

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VII.

  	
   

  	
   

  
	
   

  	
  NEGATIVE COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.01

  	
  Indebtedness

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  
	
  7.02

  	
  Liens

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
  7.03

  	
  Mergers and Consolidations

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  7.04

  	
  Acquisitions

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  7.05

  	
  Dispositions

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  7.06

  	
  Investments

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  
	
  7.07

  	
  Restricted Payments

  	
   

  	
  97

  
	
   

  	
   

  	
   

  	
   

  
	
  7.08

  	
  Business Changes

  	
   

  	
  97

  
	
   

  	
   

  	
   

  	
   

  
	
  7.09

  	
  Amendments, Etc

  	
   

  	
  97

  
	
   

  	
   

  	
   

  	
   

  
	
  7.10

  	
  Transaction with Affiliates

  	
   

  	
  97

  
	
   

  	
   

  	
   

  	
   

  
	
  7.11

  	
  Limitation on Upstream Payments by Subsidiaries

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  7.12

  	
  Prepayments of Indebtedness

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  7.13

  	
  Limitation on Negative Pledges

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  7.14

  	
  Limitation on Synthetic Leases

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  7.15

  	
  Limitation on Securitization Transactions

  	
   

  	
  98

  



 


iii

















 


	
   

  	
  ARTICLE VIII.

  	
   

  	
   

  
	
   

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.01

  	
  Events of Default

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
  8.02

  	
  Remedies Upon Event of Default

  	
   

  	
  101

  
	
   

  	
   

  	
   

  	
   

  
	
  8.03

  	
  Application of Funds

  	
   

  	
  101

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IX.

  	
   

  	
   

  
	
   

  	
  ADMINISTRATIVE AGENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.01

  	
  Appointment and Authority

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
  9.02

  	
  Rights as a Lender

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
  9.03

  	
  Exculpatory Provisions

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  9.04

  	
  Reliance by Administrative Agent

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  9.05

  	
  Delegation of Duties

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  9.06

  	
  Resignation of Administrative Agent

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  9.07

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
   

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
  9.08

  	
  No Other Duties, Etc

  	
   

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  9.09

  	
  Administrative Agent May File Proofs of Claim

  	
   

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  9.10

  	
  Guaranty Matters

  	
   

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  9.11

  	
  Secured Cash Management Agreements and Secured Hedge Agreements

  	
   

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE X.

  	
   

  	
   

  
	
   

  	
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.01

  	
  Amendments, Etc

  	
   

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
  10.02

  	
  Notices; Effectiveness; Electronic Communication

  	
   

  	
  108

  
	
   

  	
   

  	
   

  	
   

  
	
  10.03

  	
  No Waiver; Cumulative Remedies; Enforcement

  	
   

  	
  110

  
	
   

  	
   

  	
   

  	
   

  
	
  10.04

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  	
  111

  
	
   

  	
   

  	
   

  	
   

  
	
  10.05

  	
  Payments Set Aside

  	
   

  	
  113

  
	
   

  	
   

  	
   

  	
   

  
	
  10.06

  	
  Successors and Assigns

  	
   

  	
  113

  
	
   

  	
   

  	
   

  	
   

  
	
  10.07

  	
  Treatment of Certain Information; Confidentiality

  	
   

  	
  118

  
	
   

  	
   

  	
   

  	
   

  
	
  10.08

  	
  Right of Setoff

  	
   

  	
  119

  
	
   

  	
   

  	
   

  	
   

  
	
  10.09

  	
  Interest Rate Limitation

  	
   

  	
  119

  
	
   

  	
   

  	
   

  	
   

  
	
  10.10

  	
  Counterparts; Integration; Effectiveness

  	
   

  	
  120

  
	
   

  	
   

  	
   

  	
   

  
	
  10.11

  	
  Survival of Representations and Warranties

  	
   

  	
  120

  
	
   

  	
   

  	
   

  	
   

  
	
  10.12

  	
  Severability

  	
   

  	
  120

  
	
   

  	
   

  	
   

  	
   

  
	
  10.13

  	
  Replacement of Lenders

  	
   

  	
  120

  



 


iv

















 


	
  10.14

  	
  Governing Law; Jurisdiction; Etc

  	
   

  	
  121

  
	
   

  	
   

  	
   

  	
   

  
	
  10.15

  	
  Waiver of Jury Trial

  	
   

  	
  122

  
	
   

  	
   

  	
   

  	
   

  
	
  10.16

  	
  No Advisory or Fiduciary Responsibility

  	
   

  	
  122

  
	
   

  	
   

  	
   

  	
   

  
	
  10.17

  	
  Electronic Execution of Assignments and Certain Other Documents

  	
   

  	
  123

  
	
   

  	
   

  	
   

  	
   

  
	
  10.18

  	
  USA PATRIOT Act Notice

  	
   

  	
  123

  
	
   

  	
   

  	
   

  	
   

  
	
  10.19

  	
  Judgment Currency

  	
   

  	
  123

  
	
   

  	
   

  	
   

  	
   

  
	
  10.20

  	
  Professional Market Party

  	
   

  	
  124

  
	
   

  	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  	
  S-1

  



 


v

















 


SCHEDULES


 


	
  1.01(A)

  	
  Mandatory
  Cost Formulae

  
	
  1.01(B)

  	
  Existing
  Letters of Credit

  
	
  2.01

  	
  Commitments
  and Applicable Percentages

  
	
  5.01

  	
  Subsidiaries;
  Capitalization

  
	
  5.05

  	
  Litigation

  
	
  5.19

  	
  Identification
  Numbers for Designated Borrowers that are Foreign Subsidiaries

  
	
  7.01

  	
  Existing
  Indebtedness

  
	
  7.02

  	
  Existing
  Liens

  
	
  7.06

  	
  Existing
  Investments

  
	
  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-1

  	
  Assignment
  and Assumption

  
	
  E-2

  	
  Administrative
  Questionnaire

  
	
  F

  	
  Designated
  Borrower Request and Assumption Agreement

  
	
  G

  	
  Designated
  Borrower Notice

  
	
  H

  	
  Opinion

  
	
  I-1

  	
  Company
  Guaranty

  
	
  I-2

  	
  Subsidiary
  Guaranty

  



 


vi
















 


CREDIT AGREEMENT


 


THIS
CREDIT AGREEMENT (this “Agreement”) is entered into as
of October 16, 2008 among VALMONT INDUSTRIES, INC.,
a Delaware corporation (the “Company”), certain Subsidiaries of the
Company party hereto pursuant to Section 2.14 (each a “Designated
Borrower” and, together with the Company, the “Borrowers”, and each
a “Borrower”), each lender from time to time party hereto (collectively,
the “Lenders”, and individually each a “Lender”), BANC OF AMERICA SECURITIES ASIA LIMITED, as Singapore Loan
Agent, BANK OF AMERICA, N.A. SINGAPORE BRANCH,
as Singapore Borrowing Funding Fronting Lender, and BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender, L/C
Issuer and Alternative Currency Funding Fronting Lender.


 


The Company 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:


 


“Accountants” mean
Deloitte & Touche LLP (or any successor thereto), or such other firm
of certified public accountants of recognized national standing selected by the
Company.


 


“Accumulated Funding
Deficiency” has the meaning specified in Section 302 of ERISA.


 


“Acquisition”
means, with respect to any Person, the purchase or other acquisition by such
Person, by any means whatsoever (including through a merger, dividend, or
otherwise and whether in a single transaction or in a series of related
transactions), of (a) any Capital Stock of any other Person if,
immediately thereafter, such other Person would be either a Subsidiary of such
Person or otherwise under the control of such Person or (b) any business
unit, going concern, or division or segment of any other Person.


 


“Administrative Agent” means (a) Bank of
America in its capacity as administrative agent under any of the Loan
Documents, or any successor administrative agent, and (b) specifically in
the case of Valmont Singapore, Banc of America Securities Asia Limited, or any
successor agent.  All singular references
to the Administrative Agent shall mean any Administrative Agent, either
Administrative Agent, the Administrative Agent for the applicable Borrower, or
all Administrative Agents, as the context may require.


 


“Administrative Agent’s Office” means, with
respect to any currency, the applicable Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02 with respect to such
currency, or such other address or account with respect to such currency as any
Administrative Agent may from time to time notify to the Company and the
Lenders.


 


1

















 


“Administrative
Questionnaire” means an Administrative Questionnaire in substantially the
form of Exhibit E-2 or any other form approved 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.


 


“Alternative
Base Rate” means, for all Loans, on any day any such Loan is outstanding,
the fluctuating rate of interest (rounded upwards, as necessary, to the nearest
1/100 of 1%) equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two (2) Business Days
prior to the most recent Interest Rate Change Date, for Dollar deposits (for
delivery on such Interest Rate Change Date) with a term of one week, as
adjusted from time to time in the Administrative Agent’s sole discretion for
changes in deposit insurance requirements and other regulatory costs.  If such rate is not available at such time
for any reason, then the “Alternative Base Rate” shall be the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery in Same Day Funds in the approximate amount of the Dollar
denominated Loans outstanding with a term equivalent to one week would be
offered by Bank of America’s London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m.
(London time), on each day any such Loan is outstanding.


 


“Alternative
Currency” means each of Euro, Australian Dollars, Canadian Dollars,
Singapore Dollars, Pounds Sterling and each other currency (other than Dollars)
that is approved in accordance with Section 1.06.


 


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


 


“Alternative
Currency Funding Lender” means, with respect to each Committed Loan (other
than a Singapore Borrowing Event) denominated in an Alternative Currency, each
Lender other than an Alternative Currency Participating Lender with respect to
such Alternative Currency.


 


“Alternative
Currency Funding Fronting Lender” means Bank of America or any other Lender
designated by the Company and the Administrative Agent (which such designation
shall be consented to by such Lender) in its capacity as an Alternative
Currency Funding Lender for Committed Loans (other than a Singapore Borrowing
Event) denominated in an Alternative Currency in which any Alternative Currency
Participating Lender purchases Alternative Currency Risk Participations and in
which Bank of America (or such other appointed Lender) advances to the Borrower
the amount of all such Alternative Currency Risk Participations in accordance
with Sections 2.02(b) and 2.02(f).


 


2

















 


“Alternative
Currency Funding Pro Rata Share” means (a) with respect to each
Alternative Currency Funding Lender other than the Alternative Currency Funding
Fronting Lender, its Applicable Percentage; and (b) with respect to the
Alternative Currency Funding Fronting Lender, the percentage (carried out to
the ninth decimal place) determined in accordance with the following formula:


 


Sum of the Commitments of the


Alternative Currency Funding Fronting Lender


and the Alternative Currency Participating
Lenders


Aggregate Commitments


 


“Alternative
Currency Loan Credit Exposure” means, with respect to any Committed Loan
(other than a Singapore Borrowing Event) denominated in an Alternative
Currency, (a) for each Alternative Currency Funding Lender other than the
Alternative Currency Funding Fronting Lender, the aggregate principal amount of
its Alternative Currency Funding Pro Rata Share thereof advanced by such
Lender, (b) for the Alternative Currency Funding Fronting Lender, the
aggregate principal amount of its Alternative Currency Funding Pro Rata Share
thereof advanced thereby, net of all Alternative Currency Risk Participations
purchased or funded, as applicable, therein, and (c) for each Alternative
Currency Participating Lender, the aggregate principal amount of all
Alternative Currency Risk Participations purchased or funded, as applicable, by
such Lender in such Committed Loan.


 


“Alternative
Currency Participating Lender” means, with respect to each Committed Loan
(other than a Singapore Borrowing Event) denominated in an Alternative
Currency, any Lender that has given notice to the Administrative Agent and the
Company that it is unable to fund in the applicable Alternative Currency; provided,
however, that the Administrative Agent shall change a Lender’s
designation from an Alternative Currency Participating Lender to an Alternative
Currency Funding Lender with respect to such Alternative Currency (and this
definition shall ipso facto be so amended) upon
receipt of a written notice to the Administrative Agent and the Company from an
Alternative Currency Participating Lender requesting that such Lender’s
designation be changed to an Alternative Currency Funding Lender with respect
to such Alternative Currency, and each Alternative Currency Participating
Lender agrees to give such notice to the Administrative Agent and the Company
promptly upon its acquiring the ability to make Committed Loans in such
Alternative Currency.


 


“Alternative
Currency Participation Payment Date” has the meaning specified in Section 2.02(f)(iii).


 


“Alternative
Currency Risk Participation” means, with respect to each Committed Loan
(other than a Singapore Borrowing Event) denominated in an Alternative Currency
advanced by the Alternative Currency Funding Fronting Lender, the risk
participation purchased by each of the Alternative Currency Participating
Lenders in such Committed Loan in an amount determined in accordance with such
Alternative Currency Participating Lender’s Applicable Percentage of such
Committed Loan, as provided in Section 2.02(f).


 


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


 


3

















 


“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 Leverage
Ratio as set forth in the most recent Compliance Certificate received by the Administrative
Agent pursuant to Section 6.01(a):


 


Applicable Rate


 


	
  Pricing

  Level

  	
   

  	
  Leverage Ratio

  	
   

  	
  Facility Fee

  	
   

  	
  Eurocurrency

  Rate +

                

  Standby Letters of

  Credit Fee

                     

  Alternative Base Rate +

  	
   

  	
  Commercial

  Letters of

  Credit Fee

  	
   

  	
  Traditional

  Base Rate +

  	
   

  
	
  1

  	
   

  	
  Less than
  1.0 to 1.0

  	
   

  	
  0.25

  	
  %

  	
  1.00

  	
  %

  	
  0.50

  	
  %

  	
  0.00

  	
  %

  
	
  2

  	
   

  	
  Less than
  2.0 to 1.0 but greater than or equal to 1.0 to 1.0

  	
   

  	
  0.30

  	
  %

  	
  1.20

  	
  %

  	
  0.60

  	
  %

  	
  0.20

  	
  %

  
	
  3

  	
   

  	
  Less than
  3.0 to 1.0 but greater than or equal to 2.0 to 1.0

  	
   

  	
  0.35

  	
  %

  	
  1.40

  	
  %

  	
  0.70

  	
  %

  	
  0.40

  	
  %

  
	
  4

  	
   

  	
  Greater than
  or equal to 3.0 to 1.0

  	
   

  	
  0.40

  	
  %

  	
  1.60

  	
  %

  	
  0.80

  	
  %

  	
  0.60

  	
  %

  



 


Any
increase or decrease in the Applicable Rate resulting from a change in the
Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section 6.01(a);
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
after the date on which such Compliance Certificate is actually delivered.  The Applicable Rate in effect from the
Closing Date through the first Business Day immediately following the date a
Compliance Certificate is delivered or required to be delivered pursuant to Section 6.01(a) for
the fiscal quarter of the Company ended September 27, 2008  shall be determined based upon Pricing Level 2.


 


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


 


4

















 


“Applicant
Borrower” has the meaning specified in Section 2.14.


 


“Approved
Bank” means any bank whose (or whose parent company’s) unsecured non-credit
supported short-term commercial paper rating from (a) Standard &
Poor’s is at least A 1, or the equivalent thereof, or (b) Moody’s is at
least P 1, or the equivalent thereof.


 


“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.


 


“Arranger”
means BAS in its capacity as sole lead arranger and sole book manager.


 


“Assignee
Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.


 


“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-1 or any other form
approved by the Administrative Agent.


 


“Attributed
Principal Amount” means, on any day, with respect to any Securitization
Transaction entered into by a Receivables Seller, the aggregate outstanding
amount of the obligations (whether or not constituting indebtedness under GAAP)
of any Eligible Special Purpose Entity as of such date under such
Securitization Transaction.


 


“Audited
Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries, on a Consolidated basis, for the fiscal year
ended December 29,
2007, and the related consolidated statements of earnings, shareholders’
equity and cash flows for such fiscal year of the Company and its Subsidiaries,
on a Consolidated basis, including the notes thereto.


 


“Australian
Dollar” means the lawful currency of Australia.


 


“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.


 


“Banc
of America Securities Asia Limited” means Banc of America Securities Asia
Limited and its successors.


 


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


 


“BAS”
means Banc of America Securities LLC and its successors.


 


“Base
Rate” means either the Traditional Base Rate or the Alternative Base Rate,
as applicable.


 


5

















 


“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 applicable Base
Rate.  All Base Rate Loans shall be
denominated in Dollars.


 


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


 


“Borrower
Materials” has the meaning specified in Section 6.02.


 


“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, New York or the state where the Administrative Agent’s Office with
respect to Obligations denominated in Dollars is located and, if such day relates to any Loan to Valmont
Singapore, any day other than a day on which commercial banks are authorized to
close under the Laws of, or are in fact closed in, Singapore or Hong Kong, and:


 


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


 


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


 


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


 


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


 


“Canadian
Dollar” means the lawful currency of Canada.


 


6

















 


“Capital
Lease” means a lease the obligations in respect of which are required to be
capitalized by the lessee thereunder for financial reporting purposes in
accordance with GAAP.


 


“Capital
Stock” means, as to any Person, all shares, interests, partnership
interests, limited liability company interests, participations and other rights
in, or other equivalents (however designated) of, such Person’s equity (however
designated), and any rights, warrants or options exchangeable for, or
convertible into, such shares, interests, participations, rights or other
equivalents.


 


“Cash
Collateralize” has the meaning specified in Section 2.03(g).


 


“Cash
Equivalents” means (a) securities issued or directly and fully guaranteed
or insured by the United States or any agency or instrumentality thereof (provided
that the full faith and credit of the United States is pledged in full support
thereof), in each case having a maturity of not more than six months from the
date of acquisition thereof, (b) Dollar denominated time deposits,
certificates of deposit and bankers acceptances of any Lender or any Approved
Bank, in each case having a maturity of not more than six months from the date
of acquisition thereof, (c) commercial paper (i) issued by any
Approved Bank or the parent company of any Approved Bank, (ii) issued or
directly and fully guaranteed or insured by any industrial or financial company
with an unsecured non-credit supported short-term commercial paper rating of at
least A 1, or the equivalent thereof, by Standard & Poor’s or at least
P 1, or the equivalent thereof, by Moody’s, or (iii) directly and fully
guaranteed or insured by any industrial or financial company with a long term
unsecured non-credit supported senior debt rating of at least A or A 2, or the
equivalent thereof, by Standard & Poor’s or Moody’s, as the case may
be, in each case having a maturity of not more than six months from the date of
acquisition thereof, (d) marketable direct obligations issued by any State
of the United States or any political subdivision or public instrumentality of
any such State, in each case having a maturity of not more than six months from
the date of acquisition thereof and, at the time of such acquisition, having
one of the two highest ratings obtainable from either Standard & Poor’s
or Moody’s, and (e) investments in money market funds substantially all
the assets of which are comprised of securities of the types described in clauses
(a) through (d) of this definition; provided that, “Cash
Equivalents” shall in any event exclude auction rate securities.


 


“Cash
Management Agreement” means any agreement to provide cash management
services, including treasury, depository, overdraft, credit or debit card,
electronic funds transfer and other cash management arrangements.


 


“Cash
Management Bank” means any Person that, at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity
as a party to such Cash Management Agreement.


 


“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.


 


7

















 


“Change of Control” means one or both of the
following events:


 


(a)           any
person or group (other than any one or more permitted investors) shall have
become the beneficial owner of voting shares entitled to exercise more than 30%
of the total power of all outstanding voting shares of the Company (including
any voting shares which are not then outstanding of which such person or group
is deemed the beneficial owner); or


 


(b)           a
change in the composition of the Managing Person of the Company shall have
occurred in which the individuals who constituted the Managing Person of the
Company at the beginning of the two-year period immediately preceding such
change (together with any other director whose election by the Managing Person
of the Company or whose nomination for election by the shareholders of the
Company was approved by a vote of at least a majority of the members of such
Managing Person then in office who either were members of such Managing Person
at the beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a majority of
the members of such Managing Person then in office.


 


For
purposes of this definition, (i) the terms “person” and “group” shall have
the respective meanings ascribed thereto in Sections 13(d) and 14(d)(2) of
the Exchange Act, (ii) the term “beneficial owner” shall have the meaning
ascribed thereto in Rule 13d-3 under the Exchange Act, (iii) the term
“permitted investors” shall mean any one or more of the following: (A) Robert
B. Daugherty, (B) any of his immediate family members, (C) any of his
heirs or beneficiaries, (D) any tax-exempt entity established by him, (E) any
key employee of the Company which shall have acquired voting shares from him,
and (F) any employee stock ownership plan sponsored by or otherwise
established by the Company, and (iv) the term “voting shares” shall mean
outstanding shares of any class or classes (however designated) of Capital
Stock of the Company entitled to vote generally in the election of members of
the Managing Person thereof.


 


“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, as the same may be amended from time
to time, or any successor thereto, and the rules and regulations issued
thereunder, as from time to time in effect.


 


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


 


8

















 


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


 


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


 


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


 


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


 


“Company
Guaranty” means a Guaranty Agreement in favor of the Administrative Agent
and the Lenders, in substantially the form of Exhibit I-1, executed
by the Company on behalf of a Designated Borrower that is a Foreign Obligor.


 


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


 


“Consolidated”
means the Company and its Subsidiaries on a consolidated basis in accordance
with GAAP.


 


“Consolidated EBITDA” means, for any period,
net income of the Company and its Subsidiaries, determined on a Consolidated
basis in accordance with GAAP, for such period, plus the sum of, without
duplication, each of the following with respect to the Company and its
Subsidiaries, to the extent utilized in determining such net income: (a) all
interest expense, (b) provision for income taxes, and (c) depreciation
and amortization.


 


“Consolidated Interest Expense” means, for any
period, the interest expense for such period of the Company and its
Subsidiaries, determined on a Consolidated basis in accordance with GAAP
(including any interest payable in connection with the Attributed Principal
Amount).


 


“Consolidated Tangible Net Worth” means, as of
any date, the total stockholders’ equity of the Company and its Subsidiaries, less
intangible assets, all determined on a Consolidated basis in accordance with
GAAP, as set forth in, (a) during the period commencing on the Closing
Date and ending on the date of delivery thereafter of the first annual audited
financial statements pursuant to Section 6.01(b), the Audited
Financial Statements, and (b) at all other times, the most recent annual
audited Consolidated financial statements delivered pursuant to Section 6.01(b).


 


“Consolidated Total Assets” means, as
of any date, total assets of the Company and its Subsidiaries determined as of
such date on a Consolidated basis in accordance with GAAP.


 


“Contingent
Obligation” means, as to any Person (a “secondary obligor”), any
obligation of such secondary obligor (a) guaranteeing or in effect guaranteeing
any return on any investment made by another Person, or (b) guaranteeing
or in effect guaranteeing any Indebtedness, lease, dividend or other obligation
(a “primary obligation”) of any other Person (a “primary obligor”)
in any manner, whether directly or indirectly, including any obligation of such
secondary obligor, whether contingent, (i) to purchase any primary
obligation or any Property constituting direct or indirect security therefor, (ii) to
advance or supply funds (A) for the purchase or payment of any 


 


9

















 


primary obligation or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of a primary obligor, (iii) to purchase Property,
securities or services primarily for the purpose of assuring the beneficiary of
any primary obligation of the ability of a primary obligor to make payment of a
primary obligation, (iv) otherwise to assure or hold harmless the
beneficiary of a primary obligation against loss in respect thereof, and (v) in
respect of the liabilities of any partnership in which a secondary obligor is a
general partner, except to the extent that such liabilities of such partnership
are nonrecourse to such secondary obligor and its separate Property, provided,
however, that the term “Contingent Obligation” shall not include the
indorsement of instruments for deposit or collection in the ordinary course of
business.  The amount of any Contingent
Obligation of a Person shall be deemed to be an amount equal to the stated or
determinable amount of a primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by such Person in good
faith.


 


“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.


 


“Default
Rate” means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the applicable Base Rate plus
(ii) the respective Applicable Rate applicable to Base Rate Loans plus
(iii) 2% per annum; provided, however, that with respect to
a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to
the interest rate (including any Applicable Rate and any Mandatory Cost)
otherwise applicable to such Loan plus 2% per annum, and (b) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.


 


“Defaulting
Lender” means any Lender that (a) has failed to fund any portion of
the Committed Loans, participations in Alternative Currency Risk
Participations, participations in Singapore Borrowing Risk Participations,
participations in L/C Obligations or participations in Swing Line Loans
required to be funded by it hereunder within one Business Day of the date
required to be funded by it hereunder unless such failure has been cured, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless the subject of a good faith 


 


10

















 


dispute or unless such failure has been cured, or (c) has
been deemed insolvent or become the subject of a bankruptcy, insolvency or
similar proceeding.


 


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


 


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


 


“Designated
Borrower Notice” has the meaning specified in Section 2.14.


 


“Designated
Borrower Request and Assumption Agreement” has the meaning specified in Section 2.14.


 


“Deteriorating
Lender” means any Lender as to which (a) the L/C Issuer believes in
good faith has defaulted in fulfilling its obligations under one or more other
syndicated credit facilities or (b) any Person that Controls such Lender
has been deemed insolvent or become the subject of a bankruptcy, insolvency or
similar proceeding.


 


“Disposition”
or “Dispose” means any sale, assignment, transfer or other disposition
by any Person, by any means, of (a) the Capital Stock of any other Person,
(b) any business, going concern or division or segment thereof, or (c) any
other Property of such Person other than in the ordinary course of business, provided,
however, that no such sale, assignment, transfer or other disposition of
Property (other than inventory, except to the extent subject to a bulk sale)
shall be deemed to be in the ordinary course of business if it is the sale,
assignment, transfer or disposition of (x) all or substantially all of the
Property of such Person, or (y) any Operating Entity.


 


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


 


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


 


“Domestic
Subsidiary” means any Subsidiary that is organized under the laws of any
state of the United States or the District of Columbia.


 


“Dutch
Central Bank” means the central bank of The Netherlands (De Nederlandsche Bank).


 


“Dutch
Exemption Regulation” means the Exemption Regulation of the Dutch Minister
of Finance of June 26, 2002 (Vrijstellingsregeling Wtk
1992), as amended from time to time.


 


“Eligible
Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v),  (vi), (vii) and (viii) subject to
such consents, if any, as may be required under Section 10.06(b)(iii)).


 


11
















 


“Eligible Special Purpose Entity” means any
Person which may or may not be a Subsidiary of the Receivables Seller which has
been formed by or for the benefit of the Receivables Seller for the purpose of
purchasing or securitizing Securitization Receivables from the Receivables
Seller.


 


“Employee Benefit Plan” means an
employee benefit plan within the meaning of Section 3(3) of ERISA
maintained, sponsored or contributed to by the Company, any of its Subsidiaries
or any ERISA Affiliate.


 


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


 


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


 


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


 


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


 


“ERISA Affiliate” means, when used with respect
to an Employee Benefit Plan, ERISA, the PBGC or a provision of the Code
pertaining to employee benefit plans, any Person which is a member of any group
of organizations within the meaning of Sections 414(b) or (c) of the
Code (or, solely for purposes of potential liability under Section 302(c)(11)
of ERISA and Section 412(c)(11) of the Code and the lien created under Section 302(f) of
ERISA and Section 412(n) of the Code, Sections 414(m) or (o) of
the Code) of which the Company or any of its Subsidiaries is a member.


 


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


 


“Eurocurrency Rate” means, (a) for any
Interest Period with respect to a Eurocurrency Rate Loan other than a
Eurocurrency Rate Loan to Valmont Singapore denominated in Singapore Dollars,
the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of 


 


12

















 


BBA LIBOR as designated
by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, for deposits in the relevant currency (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period, and (b) for
any Interest Period with respect to a Eurocurrency Rate Loan to Valmont
Singapore denominated in Singapore Dollars, the Swap Offer Rate; provided,
however, that if a Market Disruption Event has occurred for any Interest
Period with respect to a Eurocurrency Rate Loan to Valmont Singapore
denominated in Singapore Dollars, then the Eurocurrency Rate thereof shall be
the Market Disruption Rate.  If such rate
is not available at such time for any reason, then the “Eurocurrency Rate” for
such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in the relevant currency
for delivery on the first day of such Interest Period in Same Day Funds in the
approximate amount of the Eurocurrency Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America’s London Branch (or other Bank of America
branch or Affiliate) to major banks in the London or other offshore interbank
market for such currency at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest
Period.


 


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


 


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


 


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


 


“Excluded Taxes” means, with respect to the
Administrative Agent, any Lender, the L/C Issuer or any other recipient of any
payment to be made by or on account of any obligation of any Borrower
hereunder, (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 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 such Borrower is
located, (c) any backup withholding tax that is required by the Code to be
withheld from amounts payable to a Lender that has failed to comply with clause
(A) of Section 3.01(e)(ii), and (d) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Company
under Section 10.13), any United States withholding tax that (i) is
required to be imposed on amounts payable to such Foreign Lender pursuant to
the Laws in force at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or (ii) is attributable to such Foreign
Lender’s failure or inability (other than as a result of a Change in Law) to
comply with clause (B) of Section 3.01(e)(ii), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from such Borrower with respect to such withholding tax
pursuant to Section 3.01(a)(i) or (ii).  Notwithstanding anything to the contrary
contained in this definition, “Excluded Taxes” shall not include any
withholding tax imposed at any time on payments made by or on behalf of a
Foreign 


 


13

















 


Obligor to any Lender
hereunder or under any other Loan Document, provided that such Lender
shall have complied with Section 3.01(e)(i).


 


“Existing Five-Year
Credit Agreement” means that certain Credit Agreement by and among the
Company and certain Subsidiaries of the Company party thereto, as borrowers,
the lenders party thereto, and The Bank of New York, as administrative agent,
dated as of May 4, 2004, as amended, amended and restated, supplemented or
modified from time to time.


 


“Existing Letters of
Credit” means those Letters of Credit listed on Schedule 1.01(B).


 


“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 Letter” means the letter agreement, dated August 29,
2008, among the Company, the Administrative Agent and BAS.


 


“Foreign Lender” means, with respect to any
Borrower, any Lender that is organized under the Laws of a jurisdiction other
than that in which such Borrower is resident for tax purposes (including such a
Lender when acting in the capacity of the L/C Issuer).  For purposes of this definition, the United
States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.


 


“Foreign Obligor” means a Loan Party that is a
Foreign Subsidiary.


 


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


 


“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 activities.


 


“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.


 


14

















 


“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).


 


“Guaranties” means the Company Guaranty and the
Subsidiary Guaranty.


 


“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.


 


“Hedge Bank” means any Person that, at the time
it enters into a Swap Contract permitted under Article VII, is a
Lender or an Affiliate of a Lender, in its capacity as a party to such Swap
Contract.


 


“Indebtedness” means, as to any Person, at a
particular time, all items which constitute, without duplication, (a) indebtedness
for borrowed money, (b) indebtedness in respect of the deferred purchase
price of Property (other than trade payables incurred in the ordinary course of
business), (c) indebtedness evidenced by notes, bonds, debentures or
similar instruments, (d) obligations with respect to any conditional sale
or title retention agreement, (e) indebtedness arising under acceptance
facilities and the amount available to be drawn under all letters of credit
issued for the account of such Person (other than letters of credit issued in
support of trade payables incurred in the ordinary course of business) and,
without duplication, all drafts drawn thereunder to the extent such Person
shall not have reimbursed the issuer in respect of the issuer’s payment
thereof, (f) all liabilities secured by any Lien on any Property owned by
such Person even though such Person has not assumed or otherwise become liable
for the payment thereof (other than carriers’, warehousemen’s, mechanics’,
repairmen’s or other like non-consensual statutory Liens arising in the
ordinary course of business), (g) obligations under Capital Leases, (h) all
Receivables Indebtedness of such Person, (i) the Attributed Principal
Amount in connection with a Securitization Transaction of such Person as
Receivables Seller, (j) net obligations of such Person under any Swap
Contact and (k) all Contingent Obligations of such Person in respect of
any of the foregoing.


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


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


 


“Information” has the meaning specified in Section 10.07.


 


“Interest Coverage Ratio” means, as of any
date, the ratio of (a) Consolidated EBITDA to (b) Consolidated
Interest Expense, in each case for the four fiscal quarter period ending on
such date or, if such date is not the last day of a fiscal quarter, the
immediately preceding four fiscal quarter period.


 


15

















 


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


 


“Interest Period” means, as to each
Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency
Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by
the Company in its Committed Loan Notice; provided that:


 


(a)           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;


 


(b)           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


 


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


 


“Interest Rate Change Date” means, with respect
to the Alternative Base Rate, each Monday of each week; provided, however,
that if any such date is not a Business Day, then the “Interest Rate Change
Date” shall be the next succeeding Business Day.


 


“Investment” has the meaning specified in Section 7.06.


 


“ISP” means, with respect to any Letter of
Credit, the “International Standby Practices 1998” published by the Institute
of International Banking Law & Practice, Inc. (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 and instrument entered into by the L/C Issuer and the Company (or any
Subsidiary) or in favor of the L/C Issuer and relating to 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. 
All L/C Advances shall be denominated in Dollars.


 


16

















 


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


 


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


 


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


 


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


 


“Lender” has the meaning specified in the
introductory paragraph hereto and, as the context requires, includes the Swing
Line Lender, the L/C Issuer, the Alternative Currency Funding Fronting Lender,
each Alternative Currency Funding Lender, each Alternative Currency
Participating Lender, the Singapore Borrowing Funding Fronting Lender, each
Singapore Borrowing Funding Lender and each Singapore Borrowing Participating
Lender, as applicable.


 


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


 


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


 


“Letter of Credit Application” means an
application and agreement, whether manually or on-line through Bank of America
Direct®, 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 $50,000,000.  The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.


 


“Leverage Ratio” means, as of any date, the
ratio of (a) the aggregate Indebtedness as of such date of the Company and
its Subsidiaries, determined on a Consolidated basis in accordance 


 


17

















 


with GAAP, to (b) Consolidated
EBITDA for the four fiscal quarter period ending on such date or, if such date
is not the last day of a fiscal quarter, for the immediately preceding four
fiscal quarter period; provided, however, that, in the event that
any Acquisition or Disposition permitted by this Agreement shall have been
consummated during such four fiscal quarter period, in computing Consolidated
EBITDA, net income (and all amounts specified in clauses (a), (b) and
(c) of the definition of “Consolidated EBITDA”) shall be computed
on a pro forma basis giving effect to such Acquisition or Disposition, as the
case may be, as of the first day of such period.


 


“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 a Borrower under Article II in the form of a Committed Loan or a
Swing Line Loan.


 


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


 


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


 


“Managing Person” means with respect to any
Person that is (a) a corporation, its board of directors, (b) a
limited liability company, its board of control or managing member or members, (c) a
limited partnership, its general partner, (d) a general partnership or a
limited liability partnership, its managing partner or executive committee, or (e) any
other Person, the managing body thereof or other Person analogous to the
foregoing.


 


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


 


“Margin Stock” means any “margin stock”, as
defined in Regulation U of the Board of Governors of the Federal Reserve
System, as amended, supplemented or otherwise modified from time to time.


 


“Market Disruption Event” means, in connection
with a Eurocurrency Rate Loan to Valmont Singapore denominated in Singapore
Dollars, the occurrence of either of the following events:


 


(a)            at or about noon on the date that is
two Business Days prior to the commencement of the relevant Interest Period, the Screen Rate
is not available or the Screen Rate is zero or negative and none or only one of
the Reference Banks supplies a rate to the Singapore Loan Agent to determine
the Swap Offer Rate for the relevant currency and Interest Period; or


 


18

















 


(b)           before close of business in London on
the date that is two Business Days prior to the commencement of the relevant Interest Period, the Singapore Loan Agent receives notifications from one or
more Singapore Borrowing Funding Lenders that the cost to it of obtaining
matching deposits in the Singapore interbank market would be in excess of the
Swap Offer Rate.


 


“Market Disruption
Rate” means a rate per annum equal to the sum of (a) the Applicable
Margin plus (b) the highest rate notified to the Singapore Loan
Agent by any Singapore Borrowing Funding Lender as soon as practicable and in
any event before interest is due to be paid in respect of that Interest Period,
to be that which expresses as a percentage rate per annum the cost to such
Lender of funding its participation in that Loan from whatever source it may
reasonably select.


 


“Material Adverse Effect” means (a) a
material adverse change in, or a material adverse effect upon, the operations,
business, properties, liabilities (actual or contingent) or condition
(financial or otherwise) of the Company 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.


 


“Material Subsidiary”
means, at any time, each Domestic Subsidiary which has at such time assets or
net sales greater than or equal to 5% of the aggregate assets or net sales of
the Company and its Subsidiaries, determined on a Consolidated basis in
accordance with GAAP.


 


“Maturity Date” means October 16, 2013.


 


“Maximum Purchase Amount” means, with respect
to any Securitization Transaction, the maximum amount of the obligations
permitted to be outstanding under such Securitization Transaction pursuant to
the documents governing the purchase and sale of Securitization Receivables in
such transaction.


 


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


 


“Multiemployer Plan” means a Pension Plan which
is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 


“Note” means a promissory note made by a
Borrower in favor of a Lender evidencing Loans made by such Lender to such
Borrower, 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, Letter of Credit,
Secured Cash Management Agreement or Secured Hedge Agreement, 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.


 


19

















 


“Operating Entity” means any Person or any
business or operating unit of a Person which is, or could be, operated separate
and apart from (a) the other businesses and operations of such Person, or (b) any
other line of business or business segment.


 


“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 Intercompany Acquisition” means an Acquisition by the
Company or any Subsidiary thereof from the Company or any such Subsidiary, provided,
however, that, for purposes hereof, “Other Intercompany Acquisition”
shall not include any Unrestricted Intercompany Acquisition.


 


“Other Intercompany Basket Amount” means, at any time, an amount
equal to the sum of, without duplication, (a) the aggregate outstanding
principal amount of all Other Intercompany Indebtedness at such time, plus
(b) the aggregate consideration paid as of such time for all Other
Intercompany Investments made under Section 7.06(g) on and
after the date hereof, plus (c) the aggregate amount as of such
time of all Other Intercompany Restricted Payments made on or after the date
hereof.


 


“Other Intercompany Disposition” means a Disposition by the
Company or any Subsidiary thereof to the Company or any such Subsidiary, provided,
however, that, for purposes hereof, “Other Intercompany Disposition”
shall not include any Unrestricted Intercompany Disposition.


 


“Other Intercompany Indebtedness” means Indebtedness of the
Company or any Subsidiary thereof to the Company or any such Subsidiary, provided,
however, that, for purposes hereof, “Other Intercompany Indebtedness”
shall not include any Unrestricted Intercompany Indebtedness.


 


“Other Intercompany Investment” means an Investment by the
Company or any Subsidiary thereof in the Company or any such Subsidiary, provided,
however, that, for purposes hereof, “Other Intercompany Investment”
shall not include any Unrestricted Intercompany Investment.


 


“Other Intercompany Restricted Payment” means a Restricted
Payment made by any Subsidiary of the Company to the Company or any such Subsidiary,
to the extent received by the Company or such Subsidiary, as the case may be, provided,
however, that, for purposes hereof, “Other Intercompany Restricted
Payment” shall not include any Unrestricted Intercompany Payment.


 


“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 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.


 


20
















 


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


 


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


 


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


 


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


 


“PBGC” means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA, or any Governmental
Authority succeeding to the functions thereof.


 


“Pension Plan” means, at any date of determination,
any Employee Benefit Plan (including a Multiemployer Plan), the funding
requirements of which (under Section 302 of ERISA or Section 412 of
the Code) are, or at any time within the six years immediately preceding such
date, were in whole or in part, the responsibility of the Company, any of its
Subsidiaries or any ERISA Affiliate.


 


“Permitted Lien” means a Lien permitted to
exist under Section 7.02.


 


“Permitted Securitization” means a
Securitization Transaction permitted by Section 7.15.


 


“Person” means any individual, firm,
partnership, limited liability company, joint venture, corporation,
association, business enterprise, joint stock company, unincorporated
association, trust, Governmental Authority or any other entity, whether acting
in an individual, fiduciary or other capacity, and for the purpose of the
definition of “ERISA Affiliate”, a trade or business.


 


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


 


“Platform” has the meaning specified in Section 6.02.


 


21

















 


“Pound Sterling” means the lawful currency of
the United Kingdom.


 


“Professional Market Party” means a
professional market party (professionele marktpartij)
as defined from time to time under the Dutch Exemption Regulation.  As of the date hereof, only the following are
Professional Market Parties:  (a) banks,
insurance companies, securities firms, investment institutions and pension
funds that are (i) supervised or licensed under Dutch law or (ii) established
and acting under supervision in a European Union member state (other than The
Netherlands), Australia, Canada, Japan, Mexico, New Zealand, Puerto Rico, Saudi
Arabia, South Korea, Switzerland, Turkey or the United States of America; (b) investment
institutions that offer their participation rights exclusively to professional
market parties and are not required to be supervised or licensed under Dutch
law; (c) the State of The Netherlands, the Dutch Central Bank, a foreign
central government body, a foreign central bank, Dutch regional and local
governments and comparable foreign de-centralized government bodies,
international treaty organizations and supranational organizations; (d) enterprises
or entities with total assets of at least 500,000,000 Euro (or the equivalent
thereof in other currencies) as per the balance sheet of such entity as of the
year-end preceding the date of the making of, or acceptance of an assignment of
(as the case may be), any Loan hereunder; (e) enterprises, entities or
individuals with net assets (eigen vermogen)
within the meaning of the Dutch Exemption Regulation of at least 10,000,000
Euro (or the equivalent thereof in other currencies) as of the year-end
preceding the date of the making of, or acceptance of an assignment of (as the
case may be), any Loan hereunder and who or which have been active in the
financial markets on average twice a month over a period of at least two
consecutive years preceding such date; (f) subsidiaries of the entities
referred to under clause (a) above; provided that such
subsidiaries are subject to supervision; and (g) an enterprise or institution
that has a rating from or that issues securities having a rating from a rating
agency recognized for such purposes by the Dutch Central Bank.


 


“Prohibited Transaction” means a transaction
which is prohibited under Section 4975 of the Code or Section 406 of
ERISA and not exempt under Section 4975 of the Code or Section 408 of
ERISA.


 


“Property” means all types of real, personal,
tangible, intangible or mixed property.


 


“Public Lender” has the meaning specified in Section 6.02.


 


“Qualified Subsidiary” means a direct or
indirect Subsidiary of the Company, as to which the Company owns beneficially
(and of record, in the case of a direct Subsidiary) all of the issued and
outstanding Capital Stock other than directors’ qualifying shares.


 


“Qualifying Lender” shall mean a Lender which
is beneficially entitled to interest payable to that Lender in respect of an
advance under a Loan Document and is:


 


(a)                                  a
Lender:  (i) which is a bank (as
defined for the purpose of section 349 of the Taxes Act) making an advance
under a Loan Document; or (ii) in respect of an advance made under a Loan
Document by a person that was a bank (as defined for the purpose of section 349
of the Taxes Act) at the time that that advance was made, and which is within
the charge to United Kingdom corporation tax as respects any payments of
interest made in respect of that advance; or


 


22

















 


(b)                                 a
Lender which is (i) a company resident in the United Kingdom for United
Kingdom tax purposes; (ii) a partnership each member of which is: (aa) a
company so resident in the United Kingdom; or (bb)  a company not so resident in the United
Kingdom which carries on a trade in the United Kingdom through a permanent establishment
and which brings into account in computing its chargeable profits (for the
purposes of section 11(2) of the Taxes Act) the whole of any share of
interest payable in respect of that advance that falls to it by reason of
sections 114 and 115 of the Taxes Act; (iii) a company not so resident in
the United Kingdom which carries on a trade in the United Kingdom through a
permanent establishment and which brings into account interest payable in
respect of that advance in computing the chargeable profits (for the purposes
of section 11(2) of the Taxes Act) of the company; or


 


(c)                                  a
Treaty Lender.


 


“Receivables Indebtedness” means Indebtedness
incurred by any Eligible Special Purpose Entity to finance, refinance or
guaranty the financing or refinancing of Securitization Receivables; provided
(a) such Indebtedness shall in accordance with GAAP not be accounted for
as an asset or liability on the balance sheet of Receivables Seller or any of
its Subsidiaries; (b) no assets other than the Securitization Receivables
to be financed or refinanced secure such Indebtedness; and (c) neither the
Receivables Seller nor any of its Subsidiaries shall incur any liability with
respect to such Indebtedness other than liability arising by reason of (i) a
breach of a representation or warranty or customary indemnities in each case
contained in any instrument relating to such Indebtedness or (ii) customary
interests retained by the Receivables Seller in such Indebtedness.


 


“Receivables Seller” has the meaning specified
in the definition of “Securitization Transaction”.


 


“Reference Bank” means Bank of America, N.A.,
Singapore branch, and such other bank(s) as may be appointed from time to
time by the Singapore Loan Agent (acting on the instructions of the Required
Lenders) and agreed to by the Company (which agreement shall not be
unreasonably withheld).


 


“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 with respect to any
Pension Plan, (a) any event set forth in Sections 4043(b) (other than
a Reportable Event as to which the 30 day notice requirement is waived by the
PBGC under applicable regulations), 4062(c) or 4063(a) of ERISA or
the regulations thereunder, (b) an event requiring the Parent Borrower,
any of its Subsidiaries or any ERISA Affiliate to provide security to a Pension
Plan under Section 401(a)(29) of the Code, or (c) any failure to make
any payment required by Section 412(m) of the Code.


 


“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


 


23

















 


Extension, a Letter of
Credit Application, and (c) with respect to a Swing Line Loan, a Swing
Line Loan Notice.


 


“Required Alternative
Currency Funding Lenders” means, as of any date of determination,
Alternative Currency Funding Lenders (including the Alternative Currency
Funding Fronting Lender) with Alternative Currency Funding Pro Rata Shares
aggregating more than 50% or, if the commitment of each Lender to make Loans
has been terminated pursuant to Section 8.02, Alternative Currency
Funding Lenders (including the Alternative Currency Funding Fronting Lender)
holding in the aggregate more than 50% of the Total Outstandings of any Loans
in Alternative Currencies (other than pursuant to any Singapore Borrowing
Event), with the aggregate amount of each Lender’s Alternative Currency Risk
Participations being deemed “held” by the Alternative Currency Funding Fronting
Lender for purposes of this definition; provided that the Commitment of,
and the portion of the Total Outstandings held or deemed held by, any such
Lender that is a Defaulting Lender shall be excluded for purposes of making a
determination of Required Alternative Currency Funding Lenders.


 


“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 Alternative Currency Risk Participations
and Singapore Borrowing Risk Participations and its 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 (a) 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, (b) the Alternative Currency Risk Participations of any
Defaulting Lender at such time shall be deemed to be held by the Alternative
Currency Funding Fronting Lender for purposes of making a determination of
Required Lenders, and (c) the Singapore Borrowing Risk Participations of
any Defaulting Lender at such time shall be deemed to be held by the Singapore
Borrowing Funding Fronting Lender for purposes of making a determination of
Required Lenders.


 


“Required Singapore Borrowing Funding Lenders”
means, as of any date of determination, Singapore Borrowing Funding Lenders
(including the Singapore Borrowing Funding Fronting Lender) with Singapore
Borrowing Funding Pro Rata Shares aggregating more than 50% or, if the
commitment of each Lender to make Loans has been terminated pursuant to Section 8.02,
Singapore Borrowing Funding Lenders (including the Singapore Borrowing Funding
Fronting Lender) holding in the aggregate more than 50% of the Total
Outstandings of any Loans in Alternative Currencies pursuant to any Singapore
Borrowing Event, with the aggregate amount of each Lender’s Singapore Borrowing
Risk Participations being deemed “held” by the Singapore Borrowing Funding
Fronting Lender for purposes of this definition; provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held
by, any such Lender that is a Defaulting Lender shall be excluded for purposes
of making a determination of Required Singapore Borrowing Funding Lenders.


 


“Responsible Officer” means the chief executive
officer, president, chief financial officer, treasurer or assistant treasurer
or any vice president of a Loan Party and, solely for purposes of notices given
pursuant to Article II, any other officer of the applicable Loan
Party so designated by


 


24

















 


any of the foregoing
officers in a notice to the Administrative Agent.  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, as to any Person, (a) any
dividend or other distribution, direct or indirect, on account of any shares of
Capital Stock of such Person now or hereafter outstanding (other than a
dividend payable solely in shares of such Capital Stock to the holders of such
shares) and (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition, direct or indirect, of any shares of
any class of Capital Stock of such Person now or hereafter outstanding.


 


“Revaluation Date” means (a) with respect
to any Loan, each of the following:  (i) each
date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative
Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan
denominated in an Alternative Currency pursuant to Section 2.02, (iii) the
date of advance of the applicable Loan with respect to which the Alternative
Currency Funding Fronting Lender has requested payment from the Alternative
Currency Participating Lenders in Dollars, and with respect to all other
instances pursuant to Section 2.02(f) the date on which
payments in Dollars are made between the Alternative Currency Funding Fronting
Lender and Alternative Currency Participating Lenders with respect to such
Loan, (iv) the date of advance of the applicable Loan with respect to
which the Singapore Borrowing Funding Fronting Lender has requested payment
from the Singapore Borrowing Participating Lenders in Dollars, and with respect
to all other instances pursuant to Section 2.02(g) the date on
which payments in Dollars are made between the Singapore Borrowing Funding
Fronting Lender and Singapore Borrowing Participating Lenders with respect to
such Loan and (v) such additional dates as the applicable Administrative
Agent shall determine or the Required Lenders shall require; and (b) with
respect to any Letter of Credit, each of the following:  (i) each date of issuance of a Letter of
Credit denominated in an Alternative Currency, (ii) each date of an
amendment of any such Letter of Credit having the effect of increasing or
decreasing the amount thereof (solely with respect to the increased or
decreased amount), (iii) each date of any payment by the L/C Issuer under
any Letter of Credit denominated in an Alternative Currency, (iv) in the
case of the Existing Letters of Credit, the Closing Date,  and (v) such additional dates as
the Administrative Agent or the L/C Issuer shall determine or the Required
Lenders shall require.


 


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


 


“Screen Rate” means the rate per annum for the
relevant period displayed on page ABSIRFIX01 of the Reuters screen (or
such other page as designated by the Singapore Loan Agent from time to
time as may replace that page for the purpose of displaying Singapore
interbank swap offer rates of leading reference banks or, as the case may be,
the arithmetic mean of such rates) or, if that services ceases to be available,
on page 50157 of the Telerate screen under the caption “ASSOCIATIONOF
BANKS IN SINGAPORE SIBOR AND SWAP OFFER RATE FIXING AT


 


25

















 


11:00 A.M. SINGAPORE
TIME” (or such other page as may replace that page for the purpose of
displaying Singapore inter-bank swap offer rates of leading reference banks or,
as the case may be, the arithmetic mean of such rates).


 


“SEC”
means the Securities and Exchange Commission or any Governmental Authority
succeeding to the functions thereof.


 


“Secured Cash Management Agreement” means any Cash Management
Agreement that is entered into by and between the Company and any Cash
Management Bank.


 


“Secured
Hedge Agreement” means any Swap Contract permitted under Article VII
that is entered into by and between the Company and any Hedge Bank.


 


“Securitization Receivables” has the meaning specified in the
definition of “Securitization Transaction”.


 


“Securitization
Transaction” means any financing transaction or series of financing
transactions that have been or may be entered into by any Person pursuant to
which such Person (the “Receivables Seller”) sells, conveys or otherwise
transfers on a non-recourse basis (with certain exceptions customary in
transactions of such type) to an Eligible Special Purpose Entity any of its
accounts receivable (the “Securitization Receivables”) (whether such
Securitization Receivables are then existing or arise in the future), and any
assets related thereto (including without limitation, all security interests in
merchandise or services financed thereby, the proceeds of such Securitization
Receivables and other assets which are customarily sold or in respect of which
security interests are customarily granted in connection with securitization
transactions involving such assets), and the Eligible Special Purpose Entity
either (a) borrows funds from or (b) sells the Securitization
Receivables to a commercial paper conduit which issues securities, the payment
obligations under which, in either case, are satisfied from the Securitization
Receivables and the proceeds of the sale of which are used to purchase
additional Securitization Receivables.


 


“Senior Debt” means, as of any date, the sum of the following
Indebtedness as of such date of the Company and its Subsidiaries, determined on
a Consolidated basis in accordance with GAAP: (a) Indebtedness under the
Loan Documents; (b) other Indebtedness which ranks pari passu
in right of payment to the Indebtedness under the Loan Documents; (c) Indebtedness
secured by a Lien on any Property owned by any such Person even though such
Person has not assumed or otherwise become liable for the payment thereof
(other than carriers’, warehousemen’s, mechanics’, repairmen’s or other like
non-consensual statutory Liens arising in the ordinary course of business); and
(d) the aggregate Attributed Principal Amount in connection with a
Permitted Securitization.


 


“Senior
Debt Ratio” means, as of any date, the ratio of (a) Senior Debt to (b) Consolidated
EBITDA for the four fiscal quarter period ending on such date or, if such date
is not the last day of a fiscal quarter, for the immediately preceding four
fiscal quarter period; provided, however, that, in the event that
any Acquisition or Disposition permitted by this Agreement shall have been
consummated during such four fiscal quarter period, in computing Consolidated
EBITDA, net income (and all amounts specified in clauses (a), (b) and
(c) of the definition of “Consolidated


 


26

















 


EBITDA”) shall be computed on a pro forma basis giving effect to such
Acquisition or Disposition, as the case may be, as of the first day of such
period.


 


“Singapore
Borrowing Event” has the meaning specified in Section 2.02.


 


“Singapore Borrowing Funding Lender” means,
with respect to each Singapore Borrowing Event, each Lender other than a
Singapore Borrowing Participating Lender with respect to such Singapore
Borrowing Event.


 


“Singapore Borrowing Funding Fronting Lender”
means Bank of America, N.A. Singapore Branch or any other Lender designated by
the Company and the Administrative Agent (which such designation shall be
consented to by such Lender) in its capacity as a Singapore Borrowing Funding
Lender for Singapore Borrowing Events in which any Singapore Borrowing
Participating Lender purchases Singapore Borrowing Risk Participations and in
which Bank of America, N.A. Singapore Branch (or such other appointed Lender)
advances to Valmont Singapore the amount of all such Singapore Borrowing Risk
Participations in accordance with Sections 2.02(b) and 2.02(g).


 


“Singapore Borrowing Funding Pro Rata Share”
means (a) with respect to each Singapore Borrowing Funding Lender other
than the Singapore Borrowing Funding Fronting Lender, its Applicable
Percentage; and (b) with respect to the Singapore Borrowing Funding
Fronting Lender, the percentage (carried out to the ninth decimal place)
determined in accordance with the following formula:


 


Sum of the Commitments of the


Singapore Borrowing Funding Fronting Lender


and the Singapore Borrowing Participating
Lenders


Aggregate Commitments


 


“Singapore Borrowing Loan Credit Exposure”
means, with respect to any Singapore Borrowing Event, (a) for each
Singapore Borrowing Funding Lender other than the Singapore Borrowing Funding
Fronting Lender, the aggregate principal amount of its Singapore Borrowing
Funding Pro Rata Share thereof advanced by such Lender, (b) for the
Singapore Borrowing Funding Fronting Lender, the aggregate principal amount of
its Singapore Borrowing Funding Pro Rata Share thereof advanced thereby, net of
all Singapore Borrowing Risk Participations purchased or funded, as applicable,
therein, and (c) for each Singapore Borrowing Participating Lender, the
aggregate principal amount of all Singapore Borrowing Risk Participations
purchased or funded, as applicable, by such Lender in such Committed Loan.


 


“Singapore Borrowing Participating Lender”
means, with respect to each any Singapore Borrowing Event, any Lender that has
given notice to the Administrative Agent and the Company that it is unable to
fund Singapore Borrowing Events; provided, however, that the
Administrative Agent shall change a Lender’s designation from a Singapore
Borrowing Participating Lender to a Singapore Borrowing Funding Lender with
respect to any Committed Borrowings by Valmont Singapore (and this definition
shall ipso facto be so amended) upon receipt
of a written notice to the Administrative Agent and the Company from a
Singapore Borrowing Participating Lender requesting that such Lender’s
designation be changed to a Singapore Borrowing Funding Lender with respect to
any Singapore Borrowing Events, and each Singapore Borrowing Participating


 


27

















 


Lender agrees to give
such notice to the Administrative Agent and the Company promptly upon its
acquiring the ability to fund Singapore Borrowing Events.


 


“Singapore Borrowing Participation Payment Date”
has the meaning specified in Section 2.02(g)(iii).


 


“Singapore
Borrowing Risk Participation” means, with respect to each Singapore
Borrowing Event advanced by the Singapore Borrowing Funding Fronting Lender,
the risk participation purchased by each of the Singapore Borrowing
Participating Lenders in such Committed Loan in an amount determined in
accordance with such Singapore Borrowing Participating Lender’s Applicable
Percentage of such Committed Loan, as provided in Section 2.02(g).


 


“Singapore Dollar” means the lawful currency of
the Republic of Singapore.


 


“Singapore Loan Agent” means Banc of America
Securities Asia Limited in its capacity as agent for Loans to Valmont Singapore
under any of the Loan Documents, or any successor agent.


 


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


 


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


 


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


 


“Subordinated Notes” means the up to
$150,000,000 aggregate principal amount of the Company’s Senior Subordinated
Notes due 2014.


 


“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 by such
Person.  Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of the Company.


 


28

















 


“Subsidiary Guarantor” means, collectively, all
Material Subsidiaries of the Borrower executing a Subsidiary Guaranty on the
Closing Date and all other Subsidiaries that are at any time after the Closing
Date required to enter into a Subsidiary Guaranty Joinder Agreement pursuant to
Section 6.12(b).


 


“Subsidiary Guaranty” means a Guaranty
Agreement in favor of the Administrative Agent and the Lenders, in
substantially the form of Exhibit I-2, executed by a Subsidiary
Guarantor.


 


“Subsidiary Guaranty Joinder Agreement” means each
Guaranty Joinder Agreement, substantially in the form thereof attached to the
Subsidiary Guaranty, executed and delivered by a Subsidiary Guarantor to the
Administrative Agent pursuant to Section 6.12(b), as amended,
modified, supplemented or amended and restated.


 


“Swap Contract” means (a) any and all rate
swap transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, 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 Offer Rate” means, with
respect to any Committed Borrowing by Valmont Singapore denominated in
Singapore Dollars:


 


(a)                               the applicable Screen Rate as of 11:00 a.m.
(Singapore time) two Business Days prior to the commencement of such
Interest Period for the displaying of
the swap rate for a period comparable to the Interest Period for that Loan; or


 


(b)                              if no Screen Rate is available for the
Interest Period of that Loan, the rate, or the arithmetic mean of the rates,
rounded upwards to four decimal places, as supplied to the Singapore Loan Agent
at its request quoted by the Reference Bank to leading banks in the Singapore
interbank market, to be in relation for the Interest Period for that Loan equal
to Y (rounded upwards to four decimal places) calculated in accordance with the
following formula:


 


Y = (R x 365) + (F
x 36500) + (F x R x 365)


              
360      S       N           S   
       360


 


where:


 


29

















 


F =           the premium (being a positive number) or the discount (being a negative
number), as the case may be, which would have been paid or received by such
Reference Bank in offering to sell Dollars toward exchange for Singapore
Dollars on the last day of that Interest Period in the Singapore interbank
market as of 11:00 a.m. (Singapore time) two Business Days prior to
the commencement of such Interest Period;


 


S =           the exchange rate at which such Reference Bank sells Dollars spot in
exchange for Singapore Dollars in the Singapore foreign exchange market, as
quoted by such Reference Bank as of 11:00 a.m. (Singapore time) two
Business Days prior to the commencement of such Interest Period;


 


R =           the rate at which such Reference Bank sells Dollar deposits for that
Interest Period in an amount comparable to the Dollar equivalent of that Loan
(such Dollar equivalent to be determined by such Reference Bank at such rate or
rates as such Reference Bank determines to be the most appropriate) to prime
banks in the Singapore interbank market as of 11:00 a.m. (Singapore time) two
Business Days prior to the commencement of such Interest Period; and


 


N
=          the actual number
of days in that Interest Period;


 


“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 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.


 


30
















 


“Swing Line Sublimit”
means an amount equal to the lesser of (a) $10,000,000 and (b) the
Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition
to, the Aggregate Commitments.


 


“Synthetic Lease”
means, as to any Person, any lease (including leases that may be terminated by
the lessee at any time) of any Property (a) that is not a Capital Lease
and (b) in respect of which the lessee is treated as the owner of the
Property so leased for federal income tax purposes, other than any such lease
under which such Person is the lessor.


 


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


 


“Tax Confirmation”
means a confirmation by the Administrative Agent, any Lender or the L/C Issuer,
as applicable, that the person beneficially entitled to interest payable to
that Lender in respect of an advance under a Loan Document is either: (a) a
company resident in the United Kingdom for United Kingdom tax purposes; (b) a
partnership each member of which is: (i) a company so resident in the
United Kingdom; or (ii) a company not so resident in the United Kingdom
which carries on a trade in the United Kingdom through a permanent
establishment and which brings into account in computing its chargeable profits
(for the purposes of section 11(2) of the Taxes Act) the whole of any
share of interest payable in respect of that advance that falls to it by reason
of sections 114 and 115 of the Taxes Act; or (c) a company not so resident
in the United Kingdom which carries on a trade in the United Kingdom through a
permanent establishment and which brings into account interest payable in
respect of that advance in computing the chargeable profits (for the purposes
of section 11(2) of the Taxes Act) of that company.


 


“Tax Deduction”
shall mean a deduction or withholding for or on account of Taxes from a payment
under a Loan Document or Swap Contract.


 


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


 


“Taxes Act” shall
mean the Income and Corporation Taxes Act 1988 under the Laws of the United
Kingdom.


 


“Termination Event”
means, with respect to any Pension Plan, (a) a Reportable Event, (b) the
termination of a Pension Plan, or the filing of a notice of intent to terminate
a Pension Plan, or the treatment of a Pension Plan amendment as a termination
under Section 4041(c) of ERISA, (c) the institution of
proceedings to terminate a Pension Plan under Section 4042 of ERISA, or (d) the
appointment of a trustee to administer any Pension Plan under Section 4042
of ERISA.


 


“Test Date” means,
with respect to any Securitization Transaction, each of (a) the date of
the closing of such Securitization Transaction and (b) the date of each
closing of any amendment to such Securitization Transaction which increases the
Maximum Purchase Amount thereunder.


 


31

















 


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


 


“Traditional 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 loans 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.


 


“Treaty Lender”
shall mean a Lender which (a) is treated as a resident of a Treaty State
for the purposes of a double taxation agreement (a Treaty) and (b) does
not carry on a business in the United Kingdom through a permanent establishment
with which that Lender’s participation in the Loan is effectively connected.


 


“Treaty State”
shall mean a jurisdiction having a double taxation agreement (a Treaty) with
the United Kingdom which makes provision for full exemption from tax imposed by
the United Kingdom on interest.


 


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


 


“Unfunded Pension
Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16)
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.


 


“Unrecognized Retiree
Welfare Liability” means, with respect to any Employee Benefit Plan that
provides postretirement benefits other than pension benefits, the amount of the
transition obligation, as determined in accordance with Statement of Financial
Accounting Standards No. 106, “Employers’ Accounting for Postretirement
Benefits Other Than Pensions,” as of the most recent valuation date, that has
not been recognized as an expense in an income statement of the Company and its
Consolidated subsidiaries; provided that, prior to the date such
Statement is applicable to the Company, such amount shall be based on an
estimate made in good faith of such transition obligation.


 


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


 


“Unrestricted Intercompany Acquisition” means (a) an
Acquisition by the Company or any Subsidiary Guarantor from the Company or any
Subsidiary of the Company or (b) an Acquisition by any such Subsidiary
(other than a Subsidiary Guarantor) from any such Subsidiary (other than a
Subsidiary Guarantor).


 


32

















 


“Unrestricted Intercompany Disposition” means (a) a
Disposition by the Company or any Subsidiary thereof to the Company or any
Subsidiary Guarantor or (b) a Disposition by any such Subsidiary (other
than a Subsidiary Guarantor) to any such Subsidiary (other than a Subsidiary
Guarantor).


 


“Unrestricted Intercompany Indebtedness” means (a) Indebtedness
of the Company or any Subsidiary Guarantor to the Company or any Subsidiary of
the Company or (b) Indebtedness of any such Subsidiary (other than a
Subsidiary Guarantor) to any such Subsidiary (other than a Subsidiary
Guarantor).


 


“Unrestricted Intercompany Investment” means (a) an
Investment by the Company or any Subsidiary thereof in the Company or any
Subsidiary Guarantor or (b) an Investment by any such Subsidiary (other
than a Subsidiary Guarantor) in any such Subsidiary (other than a Subsidiary Guarantor).


 


“Unrestricted
Intercompany Payment” means (a) a Restricted Payment made by any
Subsidiary of the Company to the Company or any Subsidiary Guarantor, to the
extent received by the Company or such Subsidiary Guarantor, as the case may
be, or (b) a Restricted Payment made by any such Subsidiary (other than a
Subsidiary Guarantor) to any such Subsidiary (other than a Subsidiary
Guarantor), to the extent received by such Subsidiary.


 


“Valmont Holland”
means Valmont Industries Holland BV, a company organized under the laws of The
Netherlands and a Foreign Subsidiary of the Company.


 


“Valmont Singapore”
means Valmont Singapore Pte. Ltd., a private limited company organized under
the laws of the Republic of Singapore and a Foreign Subsidiary of the Company.


 


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 


 


33

















 


consolidating, amending,
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words “asset”
and “property” shall be construed to have the same meaning and effect
and to 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
Matters. (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 Company or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Company shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Company shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in
GAAP.


 


(c)           Consolidation
of Variable Interest Entities. All references herein to consolidated
financial statements of the Company and its Subsidiaries or to the
determination of any amount for the Company and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed to
include each variable interest entity that the Company is required to
consolidate pursuant to FASB Interpretation No. 46 – Consolidation of
Variable Interest Entities:  an
interpretation of ARB No. 51 (January 2003), or any successor
pronouncement, standard or interpretation thereof, as if such variable interest
entity were a Subsidiary as defined herein.


 


1.04        Rounding. Any financial ratios
required to be maintained by the Company pursuant to the 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).


 


34

















 


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


 


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


 


1.06        Additional
Alternative Currencies. (a) The Company may from time to time request
that Eurocurrency Rate Loans be made and/or, subject to Section 2.03,
Letters of Credit be issued in a currency other than those specifically listed
in the definition of “Alternative Currency”; provided that such
requested currency is a lawful currency (other than Dollars) that is readily
available and freely transferable and convertible into Dollars. In the case of
any such request with respect to the making of Eurocurrency Rate Loans, such
request shall be subject to the approval of the Administrative Agent and the
Lenders; and in the case of any such request with respect to the issuance of
Letters of Credit, such request shall also be subject to the approval of the
L/C Issuer.


 


(b)           Any such
request shall be made to the Administrative Agent not later than 11:00 a.m.,
20 Business Days prior to the date of the desired Credit Extension (or such
other time or date as may be agreed by the Administrative Agent and, in the
case of any such request pertaining to Letters of Credit, the L/C Issuer, in
its or their sole discretion). In the case of any such request pertaining to
Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each
Lender thereof; and in the case of any such request pertaining to Letters of
Credit, the Administrative Agent shall also promptly notify the L/C Issuer
thereof. Each Lender and, in the case of a request pertaining to Letters of
Credit, the L/C Issuer shall notify the Administrative Agent, not later than
10:00 a.m., ten Business Days after receipt of such request whether it
consents, in its sole discretion, to the making of Eurocurrency Rate Loans or
the issuance of Letters of Credit, as the case may be, in such requested
currency.


 


(c)           Any
failure by a Lender or the L/C Issuer, as the case may be, to respond to such
request within the time period specified in the preceding sentence shall be
deemed to be a refusal by such Lender or the L/C Issuer, as the case may be, to
permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued in
such requested currency. If the Administrative Agent and all the Lenders
consent to making Eurocurrency Rate Loans in such requested currency, the
Administrative Agent shall so notify the Company and such currency shall
thereupon be deemed 


 


35

















 


for
all purposes to be an Alternative Currency hereunder for purposes of any
Committed Borrowings of Eurocurrency Rate Loans; and if the Administrative
Agent, the Lenders and the L/C Issuer consent to the issuance of Letters of
Credit in such requested currency, the Administrative Agent shall so notify the
Company and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Letter of Credit issuances.
If the Administrative Agent shall fail to obtain consent to any request for an
additional currency under this Section 1.06, the Administrative
Agent shall promptly so notify the Company.


 


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


 


(b)           Each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to the
Euro.


 


(c)           Each
provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect a change in currency of any other country and any
relevant market conventions or practices relating to the change in currency.


 


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


 


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


 


1.10        Alternative
Basis of Interest or Funding. (a)  If a Market Disruption Event occurs and the Singapore Loan Agent or the
Company so requires, the Singapore Loan Agent and the Company shall enter into
negotiations (for a period of not more than thirty days) with a view to
agreeing a substitute basis for determining the rate of interest.


 


36

















 


(b)           Any alternative basis agreed
pursuant to subsection (a) above shall, with the prior consent of
all the Singapore Borrowing Funding Lenders and the Company, be binding on all
parties.


 


(c)           For the avoidance of doubt, in the
event that no substitute basis is agreed at the end of the thirty day period,
the rate of interest shall continue to be determined in accordance with the
terms of this Agreement.


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01        Committed
Loans. Subject to the terms and conditions set forth herein, including
without limitation the terms and conditions of Sections 2.02(f) and
(g) below and, in the case of any Designated Borrower, subject to Section 2.14
below, each Lender severally agrees to make loans (each such loan, a “Committed
Loan”) to the Borrowers in Dollars or in one or more Alternative Currencies
from time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such
Lender’s Commitment; provided, however, that after giving effect
to any Committed Borrowing, (i) the Total Outstandings shall not exceed
the Aggregate Commitments, (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender (less, with respect only to the
Alternative Currency Funding Fronting Lender, the aggregate Alternative Currency
Risk Participations in all Loans denominated in Alternative Currencies; and less,
with respect only to the Singapore Borrowing Funding Fronting Lender, the
aggregate Singapore Borrowing Risk Participations in all Loans pursuant to a
Singapore Borrowing Event), plus, with respect only to the Alternative
Currency Participating Lenders, the Outstanding Amount of such Lender’s
Alternative Currency Risk Participations in Loans denominated in Alternative
Currencies and advanced by the Alternative Currency Funding Fronting Lender, plus,
with respect only to the Singapore Borrowing Participating Lenders, the
Outstanding Amount of such Lender’s Singapore Borrowing Risk Participations in
Loans pursuant to a Singapore Borrowing Event and advanced by the Singapore
Borrowing Funding Fronting Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, (iii) the aggregate
Outstanding Amount of all Committed Loans made to the Designated Borrowers
shall not exceed the Designated Borrower Sublimit, and (iv) the aggregate
Outstanding Amount of all Committed Loans denominated in Alternative Currencies
shall not exceed the Alternative Currency Sublimit. Within the limits of each
Lender’s Commitment, and subject to the other terms and conditions hereof, the
Borrowers may borrow under this Section 2.01, prepay under Section 2.05,
and reborrow under this Section 2.01. Committed Loans may be
Eurocurrency Rate Loans or, in the case of Committed Loans denominated in
Dollars only, Base Rate Loans, as further provided herein.


 


2.02        Borrowings,
Conversions and Continuations of Committed Loans.


 


(a)           Each
Committed Borrowing, each conversion of Committed Loans from one Type to the
other, and each continuation of Eurocurrency Rate Loans shall be made upon the
Company’s irrevocable notice to the Administrative Agent, which may be given by
telephone; provided that, the Company shall also give notice to the
Singapore Loan Agent for each Committed Borrowing in Dollars or any Alternative
Currency, each conversion of Committed Loans from one Type to the 


 


37

















 


other,
and each continuation of Eurocurrency Rate Loans on behalf of Valmont Singapore
(each, a “Singapore Borrowing Event”), which notice may be given by
telephone. Each such notice must be received by the Administrative Agent or
Administrative Agents, as applicable, not later than (i) 11:00 a.m.
three Business Days prior to the requested date of any Borrowing of, conversion
to or continuation of Eurocurrency Rate Loans denominated in Dollars or of any
conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate
Committed Loans, (ii) except for a Singapore Borrowing Event, 11:00 a.m.
four Business Days (or five Business Days in the case of a Special Notice
Currency) prior to the requested date of any Borrowing or continuation of
Eurocurrency Rate Loans denominated in Alternative Currencies, (iii) in
the case of a Singapore Borrowing Event, 11:00 a.m. (Hong Kong time) four
Business Days (or five Business Days in the case of a Special Notice Currency)
prior to the requested date of any Borrowing or continuation of Eurocurrency
Rate Loans and (iv) on the requested date of any Borrowing of Base Rate
Committed Loans. Each
telephonic notice by the Company pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent (and, in the case
of any Singapore Borrowing Event, to the Singapore Loan Agent) of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Company. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans shall be in a principal amount of the Dollar Equivalent
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 Committed
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 Company is requesting a Committed Borrowing, a conversion of Committed
Loans from one Type to the other, or a continuation of Eurocurrency 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, (v) if applicable, the duration of the Interest Period
with respect thereto, (vi) the currency of the Committed Loans to be
borrowed, and (vii) if applicable, the Designated Borrower. If the Company
fails to specify a currency in a Committed Loan Notice requesting a Borrowing,
then the Committed Loans so requested shall be made in Dollars. If the Company
fails to specify a Type of Committed Loan in a Committed Loan Notice or if the
Company fails to give a timely notice requesting a conversion or continuation,
then the applicable Committed Loans shall be made as, or converted to, Base
Rate Loans; provided, however, that in the case of a failure to
timely request a continuation of Committed Loans denominated in an Alternative
Currency, such Loans shall be continued as Eurocurrency Rate Loans in their
original currency with an Interest Period of one month. Any automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurocurrency Rate
Loans. If the Company requests a Borrowing of, conversion to, or continuation
of Eurocurrency 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. No Committed Loan may be converted into or continued as a
Committed Loan denominated in a different currency, but instead must be prepaid
in the original currency of such Committed Loan and reborrowed in the other
currency.


 


(b)            (i)            Following receipt of a Committed Loan
Notice requesting a Committed Borrowing (other than a Singapore Borrowing
Event) denominated in Dollars or in an Alternative Currency with respect to
which the Administrative Agent has not received notice that any Lender is an
Alternative Currency Participating Lender, the Administrative 


 


38

















 


Agent shall promptly
notify each applicable Lender of the amount (and currency) of its Applicable
Percentage of the applicable Committed Loans.


 


(ii)           Following receipt of a
Committed Loan Notice requesting a Committed Borrowing (other than a Singapore
Borrowing Event) denominated in an Alternative Currency with respect to which
the Administrative Agent and the Company have received notice that one or more
Lenders is an Alternative Currency Participating Lender, the Administrative
Agent shall on the next following Business Day notify (A) each Alternative
Currency Funding Lender of the Alternative Currency Equivalent amount of its
Alternative Currency Funding Pro Rata Share, (B) the Alternative Currency
Funding Fronting Lender of the Alternative Currency Equivalent amount of the
aggregate Alternative Currency Risk Participations in its Alternative Currency
Funding Pro Rata Share, (C) each Alternative Currency Participating Lender
of the Alternative Currency Equivalent amount of its Alternative Currency Risk
Participation in such Committed Borrowing, and (D) all Lenders and the
Company of the applicable Spot Rate used by the Administrative Agent to
determine the Dollar Equivalent amount.


 


(iii)          Following receipt of a
Committed Loan Notice requesting a Singapore Borrowing Event in each case with
respect to which the Administrative Agent has not received notice that any
Lender is a Singapore Borrowing Participating Lender, the Singapore Loan Agent
shall promptly notify each applicable Lender of the amount (and currency) of
its Applicable Percentage of the applicable Committed Loans.


 


(iv)          Following receipt of a
Committed Loan Notice requesting a Singapore Borrowing Event in each case with
respect to which the Administrative Agent and the Company have received notice
that one or more Lenders is a Singapore Borrowing Participating Lender, the
Singapore Loan Agent shall on the next following Business Day notify (A) each
Singapore Borrowing Funding Lender of both the Dollar Equivalent amount and, if
applicable, the Alternative Currency Equivalent amount of its Singapore
Borrowing Funding Pro Rata Share, (B) the Singapore Borrowing Funding
Fronting Lender of both the Dollar Equivalent amount and, if applicable, the
Alternative Currency Equivalent amount of the aggregate Singapore Borrowing
Risk Participations in its Singapore Borrowing Funding Pro Rata Share, (C) each
Singapore Borrowing Participating Lender of both the Dollar Equivalent amount and, if applicable, the
Alternative Currency Equivalent amount of its Singapore Borrowing Risk
Participation in such Committed Borrowing, and (D) all Lenders and the
Company of the aggregate Dollar Equivalent amount and, if applicable,
Alternative Currency Equivalent amount of such Committed Borrowing and the
applicable Spot Rate used by the Administrative Agent to determine such Dollar
Equivalent amount.


 


(v)           If no timely notice of
a conversion or continuation is provided by the Company, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans or continuation of Committed Loans denominated in a currency
other than Dollars, in each case as described in the preceding subsection.


 


In the case of a Committed Borrowing in Dollars or in an Alternative
Currency (other than a Singapore Borrowing Event) with respect to which the
Administrative Agent has not received notice that any Lender is an Alternative
Currency Participating Lender, each Lender shall make the 


 


39

















 


amount
of its Committed Loan available to the Administrative Agent in Same Day Funds
for the applicable currency at the Administrative Agent’s Office not later than
1:00 p.m., in the case of any Committed Loan denominated in Dollars, and
not later than the Applicable Time specified by the Administrative Agent in the
case of any Committed Loan in any other Alternative Currency, in each case on
the Business Day specified in the applicable Committed Loan Notice. In the case
of a Committed Borrowing in an Alternative Currency (other than a Singapore
Borrowing Event) with respect to which the Administrative Agent has received
notice that any Lender is an Alternative Currency Participating Lender, and, in
the case of the Alternative Currency Funding Fronting Lender, subject to the
satisfaction of subsection (f) below, each Alternative Currency
Funding Lender shall make the amount of its Alternative Currency Funding Pro
Rata Share in such Committed Loan available to the Administrative Agent in Same
Day Funds at the Administrative Agent’s Office not later than the Applicable
Time specified by the Administrative Agent in the case of any Committed Loan in
any other Alternative Currency. In the case of a Singapore Borrowing Event with
respect to which the Administrative Agent has not received notice that any
Lender is a Singapore Borrowing Participating Lender, each Lender shall make
the amount of its Committed Loan available to the Singapore Loan Agent in Same
Day Funds for the applicable currency at the Administrative Agent’s Office not
later than 1:00 p.m., in the case of any Committed Loan denominated in
Dollars, not later than 11:00 a.m. (Hong Kong time), in the case of any
Committed Loan denominated in Singapore Dollars, and not later than the
Applicable Time specified by the Singapore Loan Agent  in
the case of any Committed Loan in any other Alternative Currency, in each case
on the Business Day specified in the applicable Committed Loan Notice. In the
case of a Singapore Borrowing Event with respect to which the Administrative
Agent has received notice that any Lender is a Singapore Borrowing
Participating Lender, and, in the case of the Singapore Borrowing Funding
Fronting Lender, subject to the satisfaction of subsection (g) below,
each Singapore Borrowing Funding Lender shall make the amount of its Singapore
Borrowing Funding Pro Rata Share in such Committed Loan available to the
Singapore Loan Agent in Same Day Funds at the Administrative Agent’s Office not
later than 1:00 p.m., in the case of any Committed Loan denominated in
Dollars, not later than 11:00 a.m. (Hong Kong time), in the case of any
Committed Loan denominated in Singapore Dollars, and not later than the
Applicable Time specified by the  Singapore Loan
Agent  in the case of any Committed Loan in
any other Alternative Currency, in each case on the Business Day specified in
the applicable Committed Loan Notice. In any event, a Lender may cause an
Affiliate to fund or make the amount of its Loan available in accordance with
the foregoing provisions. 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 applicable Administrative Agent shall
make all funds so received available to the Company or the other applicable
Borrower in like funds as received by such Administrative Agent either by (i) crediting
the account of such Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Company; provided, however, that if, on the date the
Committed Loan Notice with respect to such Borrowing denominated in Dollars is
given by the Company, there are L/C Borrowings outstanding, then the proceeds
of such Borrowing, first, shall be applied to the payment in full of any
such L/C Borrowings, and, second, shall be made available to the
applicable Borrower as provided above.


 


(c)           Except as
otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate
Loan. During the existence of a Default, no Loans may be requested as,
converted to or continued as 


 


40

















 


Eurocurrency
Rate Loans (whether in Dollars or any Alternative Currency) without the consent
of the Required Lenders, and the Required Lenders may demand that any or all of
the then outstanding Eurocurrency Rate Loans denominated in an Alternative
Currency be prepaid, or redenominated into Dollars in the amount of the Dollar
Equivalent thereof, on the last day of the then current Interest Period with
respect thereto.


 


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


 


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


 


(f)            Alternative
Currency Funding and Participation.


 


(i)             Subject
to all the terms and conditions set forth in this Agreement, including the
provisions of Section 2.01, and without limitation of the provisions
of Section 2.02, with respect to any Committed Loans (other than a
Singapore Borrowing Event) denominated in an Alternative Currency with respect
to which one or more Lenders has given notice to the Administrative Agent and
the Company that it is an Alternative Currency Participating Lender, (A) each
Lender agrees from time to time on any Business Day during the Availability
Period to fund its Applicable Percentage of Committed Loans denominated in an
Alternative Currency with respect to which it is an Alternative Currency
Funding Lender; and (B) each Lender severally agrees to acquire an
Alternative Currency Risk Participation in Committed Loans denominated in an
Alternative Currency with respect to which it is an Alternative Currency
Participating Lender.


 


(ii)            Each
Committed Loan denominated in an Alternative Currency (other than a Singapore
Borrowing Event) shall be funded upon the request of the Company in accordance
with Section 2.02(b) and at the sole discretion of the  Administrative Agent. Immediately upon the funding by the
Alternative Currency Funding Fronting Lender of its respective Alternative
Currency Funding Pro Rata Share of any Committed Loan denominated in an
Alternative Currency with respect to which one or more Lenders is an Alternative
Currency Participating Lender, each Alternative Currency Participating Lender
shall be deemed to have absolutely, irrevocably and unconditionally purchased
from such Alternative Currency Funding Fronting Lender an Alternative Currency
Risk Participation in such Loan in an amount such that, after such purchase,
each Lender (including the Alternative Currency Funding Lenders, the
Alternative Currency Funding Fronting Lender and the Alternative Currency
Participating Lenders) will have an Alternative Currency Loan Credit Exposure
with respect to such Committed Loan equal in amount to its Applicable
Percentage of such Committed Loan.


 


41
















 


(iii)          The
Alternative Currency Funding Fronting Lender may, by written notice to the
Administrative Agent, request each Alternative Currency Participating Lender to
fund the Dollar Equivalent of its Alternative Currency Risk Participation
purchased with respect to such Committed Loans to the Administrative Agent on
the date specified in such notice (the “Alternative Currency Participation
Payment Date”) in Dollars. Following receipt of such notice, the
Administrative Agent shall promptly notify each Alternative Currency
Participating Lender of the Dollar Equivalent amount of its Alternative
Currency Risk Participation purchased with respect to each such Committed Loan
(determined at the Spot Rate on the date of advance of such Committed Loan) and
the applicable Alternative Currency Participation Payment Date. Any notice
given by the Alternative Currency Funding Fronting Lender or the Administrative
Agent pursuant to this subsection may be given by telephone if immediately
confirmed in writing; provided that the absence of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.


 


(iv)          On the
applicable Alternative Currency Participation Payment Date, each Alternative
Currency Participating Lender in the Committed Loans specified for funding
pursuant to this Section 2.02(f) shall deliver the amount of
such Alternative Currency Participating Lender’s Alternative Currency Risk
Participation with respect to such specific Committed Loans in Dollars and in
Same Day Funds to the Administrative Agent; provided, however,
that no Alternative Currency Participating Lender shall be responsible for any
default by any other Alternative Currency Participating Lender in such other
Alternative Currency Participating Lender’s obligation to pay such amount. Upon
receipt of any such amounts from the Alternative Currency Participating
Lenders, the Administrative Agent shall distribute such Dollar amounts in Same
Day Funds to the Alternative Currency Funding Fronting Lender.


 


(v)           In the
event that any Alternative Currency Participating Lender fails to make
available to the Administrative Agent the amount of its Alternative Currency
Risk Participation as provided herein, the Administrative Agent shall be
entitled to recover such amount on behalf of the Alternative Currency Funding
Fronting Lender on demand from such Alternative Currency Participating Lender
together with interest at the Overnight Rate for three Business Days and
thereafter at a rate per annum equal to the Default Rate. A certificate of the
Administrative Agent submitted to any Alternative Currency Participating Lender
with respect to amounts owing hereunder shall be conclusive in the absence of
demonstrable error.


 


(vi)          In the
event that the Alternative Currency Funding Fronting Lender receives a payment
in respect of any Committed Loan, whether directly from a Borrower or a
Guarantor or otherwise, in which Alternative Currency Participating Lenders
have fully funded in Dollars their purchase of Alternative Currency Risk Participations,
the Alternative Currency Funding Fronting Lender shall promptly distribute to
the Administrative Agent, for its distribution to each such Alternative
Currency Participating Lender, the Dollar Equivalent of such Alternative
Currency Participating Lender’s Applicable Percentage of such payment in
Dollars and in Same Day Funds. If any payment received by the Alternative
Currency Funding Fronting Lender with respect to any Committed Loan in an
Alternative Currency made by it shall be required to be returned by the
Alternative Currency Funding Fronting Lender after such time as the Alternative
Currency Funding Fronting Lender has distributed such payment to the
Administrative Agent pursuant to the immediately preceding sentence, each
Alternative Currency Participating Lender that has received a portion of such
payment shall pay to the Alternative Currency Funding Fronting Lender an 


 


42

















 


amount
equal to its Applicable Percentage in Dollars of the amount to be returned; provided,
however, that no Alternative Currency Participating Lender shall be
responsible for any default by any other Alternative Currency Participating
Lender in that other Alternative Currency Participating Lender’s obligation to
pay such amount.


 


(vii)         Anything
contained herein to the contrary notwithstanding, each Alternative Currency
Participating Lender’s obligation to acquire and pay for its purchase of
Alternative Currency Risk Participations as set forth in this subsection (f) shall
be absolute, irrevocable and unconditional and shall not be affected by any
circumstance, including, without limitation, (A) any set-off,
counterclaim, recoupment, defense or other right which such Alternative
Currency Participating Lender may have against the Alternative Currency Funding
Fronting Lender, the Administrative Agent, any Guarantor, any Borrower or any
other Person for any reason whatsoever; (B) the occurrence or continuance
of an Event of Default or a Default; (C) any adverse change in the condition
(financial or otherwise) of any Guarantor, any Borrower or any of their
Subsidiaries; (D) any breach of this Agreement or any other Loan Document
by any Guarantor, any Borrower (other than Valmont Singapore) or any other
Lender; or (E) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.


 


(viii)        In
no event shall (A) the Alternative Currency Risk Participation of any
Alternative Currency Participating Lender in any Committed Loans (other than a
Singapore Borrowing Event) denominated in an Alternative Currency pursuant to
this Section 2.02(f) be construed as a loan or other extension
of credit by such Alternative Currency Participating Lender to any Borrower,
any Lender or the Administrative Agent or (B) this Agreement be construed
to require any Lender that is an Alternative Currency Participating Lender with
respect to a specific Alternative Currency to make any Committed Loans (other
than a Singapore Borrowing Event) in such Alternative Currency under this
Agreement or under the other Loan Documents, subject to the obligation of each
Alternative Currency Participating Lender to give notice to the Administrative
Agent and the Company at any time such Lender acquires the ability to make
Committed Loans in such Alternative Currency.


 


(g)           Singapore
Borrowing Funding and Participation.


 


(i)            Subject
to all the terms and conditions set forth in this Agreement, including the
provisions of Section 2.01, and without limitation of the
provisions of Section 2.02, with respect to a Singapore Borrowing
Event to which one or more Lenders has given notice to the Administrative Agent
and the Company that it is a Singapore Borrowing Participating Lender, (A) each
Lender agrees from time to time on any Business Day during the Availability
Period to fund its Applicable Percentage of Committed Loans denominated in
Dollars or an Alternative Currency, as applicable, with respect to which it is
a Singapore Borrowing Funding Lender; and (B) each Lender severally agrees
to acquire a Singapore Borrowing Risk Participation in Committed Loans
denominated in Dollars or an Alternative Currency, as applicable, with respect
to which it is an Alternative Currency Participating Lender.


 


(ii)           Each
Committed Loan pursuant to a Singapore Borrowing Event shall be funded upon the
request of the Company in accordance with Section 2.02(b) and
at the sole discretion of the Singapore Loan Agent. Immediately upon the
funding by the Singapore Borrowing Funding Fronting Lender of its respective
Singapore Borrowing Funding Pro Rata Share of any Committed 


 


43

















 


Loan
denominated in Dollars or an Alternative Currency, as applicable, with respect
to which one or more Lenders is a Singapore Borrowing Participating Lender,
each Singapore Borrowing Participating Lender shall be deemed to have
absolutely, irrevocably and unconditionally purchased from such Singapore
Borrowing Funding Fronting Lender a Singapore Borrowing Risk Participation in
such Loan in an amount such that, after such purchase, each Lender (including
the Singapore Borrowing Funding Lenders, the Singapore Borrowing Funding
Fronting Lender and the Singapore Borrowing Participating Lenders) will have a
Singapore Borrowing Loan Credit Exposure with respect to such Committed Loan
equal in amount to its Applicable Percentage of such Committed Loan.


 


(iii)          The
Singapore Borrowing Funding Fronting Lender may, by written notice to the
Singapore Loan Agent  request each
Singapore Borrowing Participating Lender to fund the Dollar Equivalent of its
Singapore Borrowing Risk Participation purchased with respect to such Committed
Loans to the Singapore Loan Agent on the date specified in such notice (the “Singapore
Borrowing Participation Payment Date”) in Dollars. Following receipt of
such notice, the Singapore Loan Agent  shall promptly
notify each Singapore Borrowing Participating Lender of the Dollar Equivalent
amount of its Singapore Borrowing Risk Participation purchased with respect to
each such Committed Loan (determined, if applicable, at the Spot Rate on the
date of advance of such Committed Loan) and the applicable Singapore Borrowing
Participation Payment Date. Any notice given by the Singapore Borrowing Funding
Fronting Lender or the Singapore Loan Agent  pursuant to
this subsection may be given by telephone if immediately confirmed in writing; provided
that the absence of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.


 


(iv)          On the
applicable Singapore Borrowing Participation Payment Date, each Singapore
Borrowing Participating Lender in the Committed Loans specified for funding
pursuant to this Section 2.02(g) shall deliver the amount of
such Singapore Borrowing Participating Lender’s Singapore Borrowing Risk
Participation with respect to such specific Committed Loans in Dollars and in
Same Day Funds to the Singapore Loan Agent; provided, however,
that no Singapore Borrowing Participating Lender shall be responsible for any
default by any other Singapore Borrowing Participating Lender in such other
Singapore Borrowing Participating Lender’s obligation to pay such amount. Upon
receipt of any such amounts from the Singapore Borrowing Participating Lenders,
the Singapore Loan Agent shall distribute such Dollar amounts in Same Day Funds
to the Singapore Borrowing Funding Fronting Lender.


 


(v)           In the
event that any Singapore Borrowing Participating Lender fails to make available
to the Singapore Loan Agent the amount of its Singapore Borrowing Risk
Participation as provided herein, the Singapore Loan Agent shall be entitled to
recover such amount on behalf of the Singapore Borrowing Funding Fronting
Lender on demand from such Singapore Borrowing Participating Lender together
with interest at the Overnight Rate for three Business Days and thereafter at a
rate per annum equal to the Default Rate. A certificate of the Singapore Agent
submitted to any Singapore Borrowing Participating Lender with respect to
amounts owing hereunder shall be conclusive in the absence of demonstrable
error.


 


(vi)          In the
event that the Singapore Borrowing Funding Fronting Lender receives a payment
in respect of any Singapore Borrowing Event, whether directly from a Borrower
or a Guarantor or otherwise, in which Singapore Borrowing Participating Lenders
have fully funded in 


 


44

















 


Dollars
their purchase of Singapore Borrowing Risk Participations, the Singapore
Borrowing Funding Fronting Lender shall promptly distribute to the Singapore
Loan Agent, for its distribution to each such Singapore Borrowing Participating
Lender, the Dollar Equivalent of such Singapore Borrowing Participating Lender’s
Applicable Percentage of such payment in Dollars and in Same Day Funds. If any
payment received by the Singapore Borrowing Funding Fronting Lender with
respect to any Singapore Borrowing Event in Dollars or an Alternative Currency,
as applicable, made by it shall be required to be returned by the Singapore
Borrowing Funding Fronting Lender after such time as the Singapore Borrowing
Funding Fronting Lender has distributed such payment to the Singapore Loan
Agent pursuant to the immediately preceding sentence, each Singapore Borrowing
Participating Lender that has received a portion of such payment shall pay to the
Singapore Borrowing Funding Fronting Lender an amount equal to its Applicable
Percentage in Dollars of the amount to be returned; provided, however,
that no Singapore Borrowing Participating Lender shall be responsible for any
default by any other Singapore Borrowing Participating Lender in that other
Singapore Borrowing Participating Lender’s obligation to pay such amount.


 


(vii)         Anything
contained herein to the contrary notwithstanding, each Singapore Borrowing
Participating Lender’s obligation to acquire and pay for its purchase of
Singapore Borrowing Risk Participations as set forth in this subsection (g) shall
be absolute, irrevocable and unconditional and shall not be affected by any
circumstance, including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Singapore Borrowing Participating
Lender may have against the Singapore Borrowing Funding Fronting Lender, the
Singapore Loan Agent, any Guarantor, any Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of an Event of
Default or a Default; (C) any adverse change in the condition (financial
or otherwise) of any Guarantor, any Borrower or any of their Subsidiaries; (D) any
breach of this Agreement or any other Loan Document by any Guarantor, any
Borrower or any other Lender; or (E) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.


 


(viii)        In
no event shall (A) the Singapore Borrowing Risk Participation of any Singapore
Borrowing Participating Lender in any Singapore Borrowing Event pursuant to
this Section 2.02(g) be construed as a loan or other extension
of credit by such Singapore Borrowing Participating Lender to any Borrower, any
Lender or the Singapore Loan Agent or (B) this Agreement be construed to
require any Lender that is a Singapore Borrowing Participating Lender with
respect to Dollars or any specific Alternative Currency to make any Committed
Loans to any Borrower in Dollars or such Alternative Currency, as applicable,
under this Agreement or under the other Loan Documents, subject to the
obligation of each Singapore Borrowing Participating Lender to give notice to
the Administrative Agent and the Company at any time such Lender acquires the
ability to make Committed Loans in Dollars or such Alternative Currency.


 


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 


 


45

















 


Letter of Credit
Expiration Date, to issue Letters of Credit denominated in Dollars (subject to subsection
2.03(a)(iii)(D) below) for
the account of the Company or its Subsidiaries, and to amend or extend Letters
of Credit previously issued by it, in accordance with subsection (b) below,
and (2) to honor drawings under the Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit issued for the
account of the Company or its Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any Letter
of Credit, (x) the Total Outstandings shall not exceed the Aggregate
Commitments, (y) the aggregate Outstanding Amount of the Committed Loans
of any Lender (less, with respect only to the Alternative
Currency Funding Fronting Lender, the aggregate Alternative Currency Risk
Participations in all Loans denominated in Alternative Currencies; and less,
with respect only to the Singapore Borrowing Funding Fronting Lender, the
aggregate Singapore Borrowing Risk Participations in all Loans pursuant to a
Singapore Borrowing Event), plus, with respect only to the Alternative
Currency Participating Lenders, the Outstanding Amount of such Lender’s
Alternative Currency Risk Participations in Committed Loans denominated in
Alternative Currencies and advanced by the Alternative Currency Funding
Fronting Lender for such Lender, plus, with respect only to the
Singapore Borrowing Participating Lenders, the Outstanding Amount of such
Lender’s Singapore Borrowing Risk Participations in Committed Loans pursuant to
a Singapore Borrowing Event and advanced by the Singapore Borrowing Funding
Fronting Lender for such Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit. Each request by the Company for the issuance or amendment of a Letter
of Credit shall be deemed to be a representation by the Company that the L/C
Credit Extension so requested complies with the conditions set forth in the
proviso to the preceding sentence. Within the foregoing limits, and subject to
the terms and conditions hereof, the Company’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Company may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed. 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 (x) twenty four months
after the date of issuance or last extension, in the case of standby Letters of
Credit, or (y) twelve months after the date of issuance or last extension,
in the case of commercial Letters of Credit, in each case 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.


 


46

















 


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


 


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


 


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


 


(C)           except as
otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of
Credit is in an initial stated amount less than $100,000, in the case of a
commercial Letter of Credit, or $250,000,
in the case of a standby Letter of Credit;


 


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


 


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


 


(F)           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 or a Deteriorating Lender hereunder, unless
the L/C Issuer has entered into arrangements satisfactory to the L/C Issuer
with the Company or such Lender to eliminate the L/C Issuer’s risk with respect
to such Lender.


 


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


 


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


 


(vi)          The L/C Issuer shall act
on behalf of the Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in Article IX



 


47

















 


with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in Article IX included the L/C Issuer with respect
to such acts or omissions, and (B) as additionally provided herein with
respect to the L/C Issuer.


 


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


 


(i)            Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the Company delivered to the
L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately submitted through Bank of America
Direct® or appropriately completed and signed by a
Responsible Officer of the Company, as applicable. 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 other date and
time as the Administrative Agent and the L/C Issuer may agree in a particular
instance in their reasonable discretion)
prior to the proposed issuance date or date of amendment, as the case may be. In
the case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to
the L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount 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; (G) the purpose and nature
of the requested Letter of Credit; and (H) 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 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 Company shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may 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 Company and, if not, the L/C Issuer
will provide the Administrative Agent with a copy thereof. Unless the L/C
Issuer has received written notice from any Lender, the Administrative Agent or
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
Company (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 


 


48

















 


Credit,
each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Lender’s Applicable Percentage
times the amount of such Letter of Credit.


 


(iii)          If the Company so requests in any applicable
Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree
to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter
of Credit must permit the L/C Issuer to prevent any such extension at least
once in each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not later
than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Company shall not be required to make
a specific request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to
have authorized (but may not 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 Company
that one or more of the applicable conditions specified in Section 4.02
is not then satisfied, and in each such case directing the L/C Issuer not to
permit such extension.


 


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


 


(c)           Drawings
and Reimbursements; Funding of Participations.


 


(i)            Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the L/C Issuer shall notify the Company and the
Administrative Agent thereof. 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”), the Company shall reimburse the L/C Issuer in Dollars through the
Administrative Agent in an amount equal to the amount of such drawing. If the
Company fails to so reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly (but in any event no later than 12:00 p.m.) 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 Company shall be deemed to have requested a Committed Borrowing
of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02



 


49

















 


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, in Dollars, 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)(iii), each Lender that
so makes funds available shall be deemed to have made a Base Rate Committed
Loan to the Company in such amount. The Administrative Agent shall remit the
funds so received to the L/C Issuer in Dollars.


 


(iii)          With respect to any
Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of
Base Rate Loans because the conditions set forth in Section 4.02
cannot be satisfied or for any other reason constituting a Default by the
Company or any other Loan Party, the Company shall be deemed to have incurred
from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount
that is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default Rate. In
such event, each Lender’s payment to the Administrative Agent for the account
of the L/C Issuer pursuant to Section 2.03(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 Company,
any Subsidiary 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 Company of a Committed Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the Company to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.


 


50
















 


(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
applicable Overnight Rate from time to time in effect, plus any
administrative, processing or similar fees customarily charged by the L/C
Issuer in connection with the foregoing. If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Committed Loan included in the relevant Committed Borrowing or L/C
Advance in respect of the relevant L/C Borrowing, as the case may be. 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 Company or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its Applicable
Percentage thereof (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender’s L/C Advance was
outstanding) in Dollars and 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 applicable Overnight 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 Company to reimburse the L/C Issuer for
each drawing under each Letter of Credit and to repay each L/C Borrowing shall
be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including
the following:


 


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


 


51

















 


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


 


(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 Company or any Subsidiary.


 


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


 


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


 


52

















 


shall
be liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however,
that anything in such clauses to the contrary notwithstanding, the Company may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Company, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company which the Company
proves were caused by the L/C Issuer’s willful misconduct or gross negligence
or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In furtherance
and not in limitation of the foregoing, the L/C Issuer may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the
L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any reason.


 


(g)           Cash Collateral.
(i) Upon the written request of the Administrative Agent or the Required
Lenders, (A) 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 (B) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Company shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations.


 


(ii)           In addition, if the
Administrative Agent notifies the Company at any time that the Outstanding
Amount of all L/C Obligations at such time exceeds 105% of the Letter of Credit Sublimit then in effect, then,
within two Business Days after receipt of such notice, the Company shall Cash
Collateralize the L/C Obligations in an amount equal to the amount by which the
Outstanding Amount of all L/C Obligations exceeds the Letter of Credit
Sublimit.


 


(iii)          The Administrative Agent
may, at any time and from time to time after the initial deposit of Cash
Collateral, request that additional Cash Collateral be provided in order to
protect against the results of exchange rate fluctuations.


 


(iv)          Sections
2.05 and 8.02(c) set forth certain additional requirements to
deliver Cash Collateral hereunder. For purposes of this Section 2.03,
Section 2.05  and Section 8.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance satisfactory to the Administrative Agent
and the L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives
of such term have corresponding meanings. The Company hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing
deposit accounts at Bank of America.


 


(h)           Applicability
of ISP and UCP. Unless
otherwise expressly agreed by the L/C Issuer and the Company when a Letter of
Credit is issued (including any such agreement applicable to an 


 


53

















 


Existing
Letter of Credit), (i) the
rules of the ISP shall apply to each standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.


 


(i)            Letter
of Credit Fees. The Company
shall pay to the Administrative Agent for the account of each Lender in
accordance with its Applicable Percentage, in Dollars, a Letter of Credit fee
(the “Letter of Credit Fee”) for each Letter of Credit on the Dollar
Equivalent of the daily amount available to be drawn under such Letter of
Credit times the Applicable Rate. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.09.
Letter of Credit Fees shall be (i) computed on a quarterly basis in
arrears and (ii) due and payable on the first Business Day after the end
of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter
of Credit Expiration Date and thereafter on demand. If there is any change in
the 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 Company shall pay directly to the L/C
Issuer for its own account, in Dollars, a fronting fee (i) with respect to
each commercial Letter of Credit, at the rate equal to 0.125% of the
amount of such Letter of Credit, computed on the amount of such Letter of
Credit, and payable upon the issuance thereof, (ii) with respect to any
amendment of a commercial Letter of Credit increasing the amount of such Letter
of Credit, at a rate separately agreed between the Company and the L/C Issuer,
computed on the amount of such increase, and payable upon the effectiveness of
such amendment, and (iii) with respect to each standby Letter of Credit,
at the rate per annum equal to 0.125%, 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 in respect of the most recently-ended quarterly period (or
portion thereof, in the case of the first payment), commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter
of Credit Expiration Date and thereafter on demand. For purposes of computing
the daily amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.09.
In addition, the Company shall pay directly to the L/C Issuer for its own
account, in Dollars, the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.


 


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


 


(l)            Letters
of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding
hereunder is in support of any obligations of, or is for the account of, a
Subsidiary, the Company shall be obligated to reimburse the L/C Issuer
hereunder for any and all 


 


54

















 


drawings under such Letter of Credit. The Company
hereby acknowledges that the issuance of Letters of Credit for the account of
Subsidiaries inures to the benefit of the Company, and that the Company’s
business derives substantial benefits from the businesses of such Subsidiaries.


 


2.04        Swing
Line Loans.


 


(a)           The
Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender may, in its sole discretion, and in reliance upon the agreements of
the other Lenders set forth in this Section 2.04, make loans in
Dollars (each such loan, a “Swing Line Loan”) to the Company from time
to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated
with the Applicable Percentage of the Outstanding Amount of Committed Loans and
L/C Obligations of the Lender acting as Swing Line Lender, may exceed the
amount of such Lender’s Commitment; provided, however, that after
giving effect to any Swing Line Loan, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding
Amount of the Committed Loans of any Lender (less, with respect only to
the Alternative Currency Funding Fronting Lender, the aggregate Alternative
Currency Risk Participations in all Loans denominated in Alternative
Currencies; and less, with respect only to the Singapore Borrowing
Funding Fronting Lender, the aggregate Singapore Borrowing Risk Participations
in all Loans pursuant to a Singapore Borrowing Event), plus, with
respect only to the Alternative Currency Participating Lenders, the Outstanding
Amount of such Lender’s Alternative Currency Risk Participations in Loans
denominated in Alternative Currencies and advanced by the Alternative Currency
Funding Fronting Lender, plus, with respect only to the Singapore
Borrowing Participating Lenders, the Outstanding Amount of such Lender’s
Singapore Borrowing Risk Participations in Loans pursuant to a Singapore
Borrowing Event and advanced by the Singapore Borrowing Funding Fronting
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 Company shall not use
the proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Company may borrow under this Section 2.04,
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 Company’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which
may be given by telephone. Each such notice must be received by the Swing Line
Lender and the Administrative Agent not later than 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 Company. Promptly after
receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the
Swing Line Lender will confirm with the Administrative Agent (by telephone or
in writing) that the 


 


55

















 


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 (x) the Swing Line Lender determines, in its sole
discretion, not to make such Swing Line Loan or (y)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 12:00 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 first 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 Company at its office by crediting the account of the Company
on the books of the Swing Line Lender in immediately available funds.


 


(c)           Refinancing
of Swing Line Loans.


 


(i)            The Swing Line Lender
at any time in its sole and absolute discretion may request, on behalf of the
Company (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Committed Loan in an
amount equal to such Lender’s Applicable Percentage of the amount of Swing Line
Loans then outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Committed Loan Notice for purposes hereof) and
in accordance with the requirements of Section 2.02, without regard
to the minimum and multiples specified therein for the principal amount of Base
Rate Loans, but subject to the unutilized portion of the Aggregate Commitments
and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Company with a copy of the applicable Committed Loan Notice
promptly after delivering such notice to the Administrative Agent. Each Lender
shall make an amount equal to its Applicable Percentage of the amount specified
in such Committed Loan Notice available to the Administrative Agent in Same Day
Funds for the account of the Swing Line Lender at the Administrative Agent’s
Office for Dollar-denominated payments not later than 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 Company in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.


 


(ii)           If for any reason any
Swing Line Loan cannot be refinanced by such a Committed Borrowing in
accordance with Section 2.04(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 


 


56

















 


period from the date such
payment is required to the date on which such payment is immediately available
to the Swing Line Lender at a rate per annum equal to the applicable Overnight
Rate from time to time in effect, plus any administrative processing or similar
fees customarily charged by the Swing Line Lender in connection with the
foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Committed Loan
included in the relevant Committed Borrowing or funded participation in the
relevant Swing Line Loan, as the case may be. 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 Company or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender’s obligation to
make Committed Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02. No such
funding of risk participations shall relieve or otherwise impair the obligation
of the Company to repay Swing Line Loans, together with interest as provided
herein.


 


(d)           Repayment
of Participations.


 


(i)            At any time after any
Lender has purchased and funded a risk participation in a Swing Line Loan, if
the Swing Line Lender receives any payment on account of such Swing Line Loan,
the Swing Line Lender will distribute to such Lender its Applicable Percentage
of such payment (appropriately adjusted, in the case of interest payments, to
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
applicable Overnight Rate. The Administrative Agent will make such demand upon
the request of the Swing Line Lender. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


 


(e)           Interest
for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Company for interest on the Swing Line Loans. Until
each Lender funds its Base Rate Committed Loan or risk participation pursuant
to this Section 2.04 to refinance 


 


57

















 


such
Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of
such Applicable Percentage shall be solely for the account of the Swing Line
Lender.


 


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


 


2.05        Prepayments.
(a) Each Borrower may, upon notice from the Company to the
Administrative Agent, at any time or from time to time voluntarily prepay
Committed Loans in whole or in part without premium or penalty, subject to Section 3.05;
provided that, if Valmont Singapore voluntarily prepays Committed Loans,
such notice must also be given to the Singapore Loan Agent; provided, further,
that (i) such notice must be received by the Administrative Agent or
Administrative Agents, as applicable, not later than 11:00 a.m. (A) three
Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated
in Dollars, (B) four Business Days (or five, in the case of prepayment of
Loans denominated in Special Notice Currencies) prior to any date of prepayment
of Eurocurrency Rate Loans denominated in Alternative Currencies, and (C) on
the date of prepayment of Base Rate Committed Loans; (ii) any prepayment
of Eurocurrency Rate Loans denominated in Dollars shall be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any
prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies
shall be in a minimum principal amount of the Dollar Equivalent of $5,000,000
or a whole multiple of $1,000,000 in excess thereof; and (iv) 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, in each case, if less,
the entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be
prepaid, the Interest Period(s) of such Loans. The Administrative Agent
will promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s Applicable Percentage of such prepayment (including, (x) in
the event such prepayment is of a Committed Loan denominated in an Alternative
Currency, each Alternative Currency Funding Lender’s Alternative Currency
Funding Pro Rata Share of such payment, and (y) in the event such
prepayment is of a Committed Loan borrowed by Valmont Singapore, each Singapore
Borrowing Funding Lender’s Singapore Borrowing Funding Pro Rata Share of such
payment). If such notice is given by the Company, the applicable Borrower shall
make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein. Any prepayment of a Eurocurrency
Rate Loan shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05.
Each such prepayment shall be applied to the Committed Loans of the Lenders in
accordance with their respective Applicable Percentages.


 


(b)           The
Company may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 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. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.


 


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(c)           If the
Administrative Agent notifies the Company at any time that the Total
Outstandings at such time exceed the Aggregate Commitments then in effect,
then, within two Business Days after receipt of such notice, the Borrowers
shall prepay Loans and/or the Company shall Cash Collateralize the L/C
Obligations in an aggregate amount sufficient to reduce such Outstanding Amount
as of such date of payment to an amount not to exceed 100% of the Aggregate
Commitments then in effect; provided, however, that, subject to
the provisions of Section 2.03(g)(ii), the Company 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. The Administrative Agent may, at any time
and from time to time after the initial deposit of such Cash Collateral,
request that additional Cash Collateral be provided in order to protect against
the results of further exchange rate fluctuations.


 


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


 


2.06        Termination
or Reduction of Commitments. The Company may, upon notice to the Administrative
Agent, terminate the Aggregate Commitments, or from time to time permanently
reduce the Aggregate Commitments; provided that (i) any such notice
shall be received by the Administrative Agent not later than 11:00 a.m.
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 Company 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 Alternative Currency
Sublimit, the Letter of Credit Sublimit, the Designated Borrower 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. The amount of any such
Aggregate Commitment reduction shall not be applied to the Alternative Currency
Sublimit or the Letter of Credit Sublimit unless otherwise specified by the
Company. 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) Each Borrower shall repay to the Lenders on the Maturity
Date the aggregate principal amount of Committed Loans made to such Borrower
outstanding on such date.


 


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


 


2.08        Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurocurrency Rate Loan shall bear interest on the outstanding principal amount
thereof for each 


 


59

















 


Interest
Period at a rate per annum equal to the Eurocurrency Rate for such Interest
Period plus the Applicable Rate plus (in the case of a
Eurocurrency Rate Loan of any Lender which is lent from a Lending Office in the
United Kingdom or a Participating Member State) the Mandatory Cost; (ii) each
Base Rate Committed Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date and for any day at a
fluctuating rate per annum equal to the higher of (A) the Traditional Base
Rate plus the Applicable Rate and (B) the Alternative 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 and
for any day at a fluctuating rate per annum equal to the higher of (A) the
Traditional Base Rate plus the Applicable Rate and (B) the
Alternative Base Rate plus the Applicable 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 at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.


 


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


 


(iii)          Upon the request of the
Required Lenders, while any Event of Default exists, the Borrowers 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 written 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.


 


(d)           For
the purposes of the Interest Act (Canada), (i) whenever a rate of interest
or fee rate hereunder is calculated on the basis of a year (the “deemed year”)
that contains fewer days than the actual number of days in the calendar year of
calculation, such rate of interest or fee rate shall be expressed as a yearly
rate by multiplying such rate of interest or fee rate by the actual number of
days in the calendar year of calculation and dividing it by the number of days
in the deemed year, (ii) the principle of deemed reinvestment of interest
shall not apply to any interest calculation hereunder and (iii) the rates
of interest stipulated herein are intended to be nominal rates and not
effective rates or yields.


 


(e)           Interest
on any Committed Loan in an Alternative Currency advanced by the Alternative
Currency Funding Fronting Lender shall be for the benefit of the Alternative
Currency 


 


60

















 


Funding Fronting Lender, and not any Alternative
Currency Participating Lender, until the applicable Alternative Currency
Participating Lender has funded its participation therein to the Alternative
Currency Funding Fronting Lender.


 


(f)            Interest
on any Committed Loan under a Singapore Borrowing Event advanced by the
Singapore Borrowing Funding Fronting Lender shall be for the benefit of the
Singapore Borrowing Funding Fronting Lender, and not any Singapore Borrowing
Participating Lender, until the applicable Singapore Borrowing Participating
Lender has funded its participation therein to the Singapore Borrowing Funding
Fronting Lender.


 


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


 


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


 


(b)           Alternative
Currency Fronting Fee. The Company shall pay directly to the Alternative
Currency Funding Fronting Lender, for its own account, in Dollars, a fronting
fee with respect to the portion of each Committed Borrowing in an Alternative
Currency advanced by such Alternative Currency Funding Fronting Lender for an
Alternative Currency Participating Lender (but excluding the portion of such
advance constituting the Alternative Currency Funding Fronting Lender’s
Applicable Percentage of such Committed Borrowing as an Alternative Currency
Funding Lender), equal to 0.125% times such portion of such Committed
Borrowing, computed on the Dollar Equivalent of such Committed Borrowing, such
fee to be payable on the date of such Committed Borrowing.


 


(c)           Singapore
Borrowing Fronting Fee. The Company shall pay directly to the Singapore
Borrowing Funding Fronting Lender, for its own account, in Dollars, a fronting
fee with respect to the portion of each Committed Borrowing under a Singapore
Borrowing Event advanced by such Singapore Borrowing Funding Fronting Lender
for a Singapore Borrowing Participating Lender (but excluding the portion of
such advance constituting the Singapore Borrowing Funding Fronting Lender’s
Applicable Percentage of such Committed Borrowing as a Singapore Borrowing
Funding Lender), equal to 0.125% times such portion of such Committed
Borrowing, computed on the Dollar Equivalent of such Committed Borrowing, such
fee to be payable on the date of such Committed Borrowing.


 


61
















 


(d)           Other
Fees. (i) The Company shall pay to BAS and the Administrative Agent
for their own respective accounts, in Dollars, fees in the amounts and at the
times specified in the Fee Letter. Such fees shall be fully earned when paid
and shall not be refundable for any reason whatsoever except as provided for in
the Fee Letter.


 


(ii)           The Company shall pay
to the Lenders, in Dollars, such fees as shall have been separately agreed upon
in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.


 


2.10        Computation of Interest
and Fees; Retroactive Adjustments
of Applicable Rate. (a) All
computations of interest for Base Rate Loans when the Base Rate is determined
by Bank of America’s “prime rate” shall be made on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year), or, in the case of
interest in respect of Committed Loans denominated in Alternative Currencies as
to which market practice differs from the foregoing, in accordance with such
market practice. Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan
that is repaid on the same day on which it is made shall, subject to Section 2.12(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.


 


(b)           If,
as a result of any restatement of or other adjustment to the financial
statements of the Company or for any other reason, the Company or the Lenders
determine that (i) the Leverage Ratio as calculated by the Company as of
any applicable date was inaccurate and (ii) a proper calculation of the
Leverage Ratio would have resulted in higher pricing for such period, each
Borrower shall immediately and retroactively be obligated to pay to the
Administrative Agent for the account of the applicable Lenders or the L/C
Issuer, as the case may be, promptly on demand by the Administrative Agent (or,
after the occurrence of an actual or deemed entry of an order for relief with
respect to any Borrower under Debtor Relief Laws automatically and without further
action by the Administrative Agent, any Lender or the L/C Issuer), an amount
equal to the excess of the amount of interest and fees that should have been
paid for such period over the amount of interest and fees actually paid for
such period. This paragraph shall not limit the rights of the Administrative
Agent, any Lender or the L/C Issuer, as the case may be, under Section 2.03(c)(iii),
2.03(i) or 2.08(b) or under Article VIII. The
Company’s obligations under this paragraph shall survive the termination of the
Aggregate Commitments and the repayment of all other Obligations hereunder.


 


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 Borrowers and the interest and payments thereon. Any failure
to so record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrowers hereunder to pay any amount owing with
respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the 


 


62

















 


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 to a Borrower made through
the Administrative Agent, such Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a Note, which shall evidence such
Lender’s Loans to such Borrower in addition to such accounts or records. Each
Lender may attach schedules to a Note and endorse thereon the date, Type (if
applicable), amount, currency 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 Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein and except with respect to principal of and
interest on Loans denominated in an Alternative Currency, (i) all payments
by the Borrowers hereunder (other than Valmont Singapore) shall be made to the
Administrative Agent and (ii) all payments by Valmont Singapore hereunder
shall be made to the Singapore Loan Agent, for the account of the respective
Lenders to which such payment is owed, at the applicable Administrative Agent’s
Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the
date specified herein. Except as otherwise expressly provided herein, (i) all
payments by the Borrowers hereunder (other than Valmont Singapore) with respect
to principal and interest on Loans denominated in an Alternative Currency shall
be made to the Administrative Agent and (ii) all payments by Valmont
Singapore with respect to principal and interest on Loans denominated in an
Alternative Currency shall be made to the Singapore Loan Agent, for the account
of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in such Alternative Currency and in Same Day
Funds not later than the Applicable Time specified by the Administrative Agent
on the dates specified herein. Without limiting the generality of the
foregoing, the Administrative Agent may require that any payments due under
this Agreement be made in the United States. If, for any reason, any Borrower
is prohibited by any Law from making any required payment hereunder in an
Alternative Currency, such Borrower shall make such payment in Dollars in the
Dollar Equivalent of the Alternative Currency payment amount. The
Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein including without
limitation (x) the Alternative Currency Funding Fronting Lender’s
Alternative Currency Funding Pro Rata Share of any payment made with respect to
any Committed Loan as to which any Alternative Currency Participating Lender
has not funded its Alternative Currency Risk Participation and (y) the
Singapore Borrowing Funding Fronting Lender’s Singapore Borrowing Funding Pro
Rata Share of any payment made with respect to any Singapore Borrowing Event as
to which any Singapore Borrowing Participating Lender has not funded its
Singapore Borrowing Risk Participation) of such payment in like funds as
received by wire transfer to such Lender’s Lending Office. All payments
received by the Administrative Agent (i) after 2:00 p.m., in the case
of payments in Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent in the case of payments in an Alternative Currency, shall
in each case be deemed received on the next succeeding Business Day and any
applicable interest or 


 


63

















 


fee
shall continue to accrue. If any payment to be made by any Borrower shall come
due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.


 


(b)           (i)            Funding by Lenders;
Presumption by Administrative Agent. Unless the applicable Administrative
Agent shall have received notice from a Lender prior to the proposed date of
any Committed Borrowing of Eurocurrency Rate Loans (or, in the case of any
Committed Borrowing of Base Rate Loans, prior to 12:00 p.m. on the date of
such Committed Borrowing) that such Lender will not make available to such
Administrative Agent such Lender’s share of such Committed Borrowing, the
applicable Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.02 (or, in the
case of a Committed Borrowing of Base Rate Loans, that such Lender has made
such share available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Committed Borrowing available to the applicable
Administrative Agent, then the applicable Lender and the applicable Borrower
severally agree to pay to such Administrative Agent forthwith on demand such
corresponding amount in Same Day Funds with interest thereon, for each day from
and including the date such amount is made available to such Borrower to but
excluding the date of payment to such Administrative Agent, at (A) in the
case of a payment to be made by such Lender, the Overnight Rate, plus
any administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, and (B) in the case
of a payment to be made by such Borrower, the interest rate applicable to Base
Rate Loans. If such Borrower and such Lender shall pay such interest to the
applicable Administrative Agent for the same or an overlapping period, such
Administrative Agent shall promptly remit to such Borrower the amount of such
interest paid by such Borrower for such period. If such Lender pays its share
of the applicable Committed Borrowing to the applicable Administrative Agent,
then the amount so paid shall constitute such Lender’s Committed Loan included
in such Committed Borrowing. Any payment by such Borrower shall be without
prejudice to any claim such Borrower may have against a Lender that shall have
failed to make such payment to any Administrative Agent.


 


(ii)           Payments by
Borrowers; Presumptions by Administrative Agent. Unless the applicable
Administrative Agent shall have received notice from a Borrower prior to the
date on which any payment is due to such Administrative Agent for the account
of the Lenders or the L/C Issuer hereunder that such Borrower will not make
such payment, such Administrative Agent may assume that such Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be,
the amount due. In such event, if such Borrower has not in fact made such
payment, then each of the Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to such Administrative Agent forthwith on demand the
amount so distributed to such Lender or the L/C Issuer, in Same Day Funds with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to such Administrative
Agent, at the Overnight Rate.


 


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


 


64

















 


(c)           Failure
to Satisfy Conditions Precedent. If any Lender makes available to the
applicable Administrative Agent funds for any Loan to be made by such Lender to
any Borrower as provided in the foregoing provisions of this Article II,
and such funds are not made available to such Borrower by such 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, such
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 (including Committed Loans denominated in Alternative
Currencies in the event they are Alternative Currency Funding Lenders and
Committed Loans under Singapore Borrowing Events in the event they are
Singapore Borrowing Funding Lenders), to fund Alternative Currency Risk
Participations (if they are Alternative Currency Participating Lenders), to
fund Singapore Borrowing Risk Participations (if they are Singapore Borrowing
Participating Lenders), and 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
(including Committed Loans denominated in an Alternative Currency in the event
it is an Alternative Currency Funding Lender and Committed Loans under
Singapore Borrowing Events in the event its is a Singapore Borrowing Funding
Lender), to fund any Alternative Currency Risk Participations (if it is an Alternative
Currency Participating Lender), to fund any Singapore Borrowing Risk
Participations (if it is a Singapore Borrowing Participating Lenders), to fund
any participation in Letters of Credit and Swing Line Loans 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 (including Committed Loans denominated in
an Alternative Currency in the event it is an Alternative Currency Funding
Lender and Committed Loans under Singapore Borrowing Events in the event its is
a Singapore Borrowing Funding Lender), to purchase its Alternative Currency
Risk Participations (if it is an Alternative Currency Participating Lender), to
purchase its Singapore Borrowing Risk Participations (if it is a Singapore
Borrowing Participating Lender), to purchase its participations in Letters of
Credit and Swing Line Loans 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.


 


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, the Alternative
Currency Risk Participations, the Singapore Borrowing Risk Participations, or
the participations in L/C Obligations or in Swing Line Loans held by it (but
not including (x) any amounts applied by the Alternative Currency Funding
Fronting Lender to Committed Loans prior to the funding of risk participations
therein or (y) any amounts applied by the Singapore Borrowing Funding
Fronting Lender to Committed Loans prior to the funding of risk participations
therein) 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 


 


65

















 


value)
participations in the Committed Loans, subparticipations in the L/C Obligations
and Swing Line Loans and/or subparticipations in Alternative Currency Risk
Participations or Singapore Borrowing Risk Participations 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 a Borrower pursuant
to and in accordance with the express terms of this Agreement or (y) any
payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Committed Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other than to
the Company or any Subsidiary thereof (as to which the provisions of this Section shall
apply).


 


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


 


2.14        Designated
Borrowers. (a) Effective as of
the date hereof Valmont Holland and Valmont Singapore  shall
each be a “Designated Borrower” hereunder and may receive Loans for its account
on the terms and conditions set forth in this Agreement following
receipt of all supporting resolutions, incumbency certificates, opinions of
counsel and other documents or information, each in form, content and scope
reasonably satisfactory to the Administrative Agent, as may be required by the
Administrative Agent or the Required Lenders in reasonable discretion, and
receipt of Notes signed by any Designated Borrower to the extent any Lenders so
require.


 


(b)           The Company
may at any time, upon not less than 15 Business Days’ notice from the Company
to the Administrative Agent (or such shorter period as may be agreed by the
Administrative Agent in its reasonable discretion), designate any additional  Subsidiary
of the Company (an “Applicant Borrower”) as a Designated Borrower to
receive Loans hereunder by delivering to the Administrative Agent (which shall
promptly deliver counterparts thereof to each Lender) a duly executed notice
and agreement in substantially the form of Exhibit F (a “Designated
Borrower Request and Assumption Agreement”). The parties hereto acknowledge
and agree that prior to any Applicant Borrower becoming entitled to utilize the
credit facilities provided for herein the Administrative Agent and the Lenders
shall have received (i) in the case of any Applicant Borrower that is a
Foreign Subsidiary, an executed Company Guaranty, and (ii) in the case of
all Applicant Borrowers, such supporting resolutions, incumbency certificates,
opinions of counsel and other documents or information, each in form, content
and scope reasonably satisfactory to the Administrative Agent, as may be
required by the Administrative Agent or the Required Lenders in reasonable
discretion, and Notes signed by such new Borrowers to the extent any Lenders so



 


66

















 


require.
If the Administrative Agent and each Lender agree that an Applicant Borrower
shall be entitled to receive Loans hereunder, then promptly following receipt
of all such requested resolutions, incumbency certificates, opinions of counsel
and other documents or information, the Administrative Agent shall send a
notice in substantially the form of Exhibit G (a “Designated
Borrower Notice”) to the Company and the Lenders specifying the effective
date upon which the Applicant Borrower shall constitute a Designated Borrower
for purposes hereof, whereupon each of the Lenders agrees to permit such
Designated Borrower to receive Loans hereunder, on the terms and conditions set
forth herein, and each of the parties agrees that such Designated Borrower
otherwise shall be a Borrower for all purposes of this Agreement; provided
that no Committed Loan Notice or Letter of Credit Application may be submitted
by or on behalf of such Designated Borrower until the date five Business Days
after such effective date.


 


(c)           The
Obligations of the Company and each Designated Borrower that is a Domestic
Subsidiary shall be joint and several in nature. The Obligations of all
Designated Borrowers that are Foreign Subsidiaries shall be several in nature.


 


(d)           Each
Subsidiary of the Company that is or  becomes a “Designated Borrower” pursuant to this Section 2.14
hereby irrevocably appoints the Company as its agent for all purposes relevant
to this Agreement and each of the other Loan Documents, including (i) the
giving and receipt of notices, (ii) the execution and delivery of all
documents, instruments and certificates contemplated herein and all
modifications hereto, and (iii) the receipt of the proceeds of any Loans
made by the Lenders, to any such Designated Borrower hereunder. Any
acknowledgment, consent, direction, certification or other action which might
otherwise be valid or effective only if given or taken by all Borrowers, or by
each Borrower acting singly, shall be valid and effective if given or taken
only by the Company, whether or not any such other Borrower joins therein. Any
notice, demand, consent, acknowledgement, direction, certification or other
communication delivered to the Company in accordance with the terms of this
Agreement shall be deemed to have been delivered to each Designated Borrower.


 


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


 


2.15        Increase in Commitments.


 


(a)           Request
for Increase. Provided there exists no Default and the Company has made no
voluntary reduction of the Aggregate Commitments pursuant to Section 2.06,
upon notice to the Administrative Agent (which shall promptly notify the
Lenders), the Company may from time to time, request an increase in the
Aggregate Commitments by an amount (for all such requests) not exceeding
$100,000,000; provided that any such request for an increase shall be in
a minimum amount of $25,000,000. At the time of sending such notice, the
Company (in consultation with the Administrative Agent) shall specify the time
period within which each Lender is requested to 


 


67

















 


respond
(which shall in no event be less than ten Business Days from the date of
delivery of such notice to the Lenders).


 


(a)           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.


 


(b)           Notification
by Administrative Agent; Additional Lenders. The Administrative Agent shall
notify the Company and each Lender of the Lenders’ responses to each request
made hereunder. 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, conditioned or delayed), the Company may
also invite additional Eligible Assignees to become Lenders pursuant to a
joinder agreement in form and substance satisfactory to the Administrative
Agent and its counsel.


 


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


 


(d)           Conditions
to Effectiveness of Increase. As a condition precedent to such increase,
the Company shall deliver to the Administrative Agent a certificate dated as of
the Increase Closing Date (in sufficient copies for each Lender) signed by a
Responsible Officer (i) certifying and attaching the resolutions adopted
by the Borrowers approving or consenting to such increase, and (ii) certifying
that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other
Loan Documents are true and correct on and as of the Increase Closing Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, and except that for purposes of this Section 2.15,
the representations and warranties contained in Section 5.13 shall
be deemed to refer to the most recent statements furnished pursuant to clauses
(b) and (c), respectively, of Section 6.01, and (B) no
Default exists. The Borrowers shall prepay any Committed Loans outstanding on
the Increase Closing 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.


 


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


 


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ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


(a)           Payments
Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.


 


(i)            Any and all payments
by or on account of any obligation of the respective Borrowers hereunder or
under any other Loan Document shall to the extent permitted by applicable Laws
be made free and clear of and without reduction or withholding for any
Indemnified or Other Taxes. If, however, applicable Laws require any Borrower
or the Administrative Agent to withhold or deduct any Tax, such Tax shall be
withheld or deducted in accordance with such Laws as determined by such
Borrower or the Administrative Agent, as the case may be, upon the basis of the
information and documentation to be delivered pursuant to subsection (e) below.


 


(ii)           If any Borrower or the
Administrative Agent shall be required by the Code to withhold or deduct any
Taxes, including both United States Federal backup withholding and withholding
taxes, from any payment, then (A) the Administrative Agent shall withhold
or make such deductions as are determined by the Administrative Agent to be
required based upon the information and documentation it has received pursuant
to subsection (e) below, (B) the Administrative Agent shall
timely pay the full amount withheld or deducted to the relevant Governmental
Authority in accordance with the Code, and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other
Taxes, the sum payable by such Borrower shall be increased as necessary so that
after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such withholding or
deduction been made.


 


(iii)          If any Borrower or the
Administrative Agent shall be required by any applicable Laws other than the
Code to withhold or deduct any Taxes from any payment, then (A) such
Borrower or the Administrative Agent, as required by such Laws, shall withhold
or make such deductions as are determined by it to be required based upon the
information and documentation it has received pursuant to subsection (e) below,
(B) such Borrower or the Administrative Agent, to the extent required by
such Laws, shall make such deductions; and (iii) such Borrower shall
timely pay the full amount so withheld or deducted by it to the relevant
Governmental Authority in accordance with such Laws, and (C) to the extent
that the withholding or deduction is made on account of Indemnified Taxes or
Other Taxes, the sum payable by such Borrower shall be increased as necessary
so that after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such withholding or
deduction been made.


 


(iv)          Notwithstanding the
foregoing, no Designated Borrower that is a Foreign Subsidiary is required to
make an increased payment to the Administrative Agent, a Lender 


 


69

















 


or an L/C Issuer under
this Section 3.01(a) for a Tax Deduction in respect of a tax
imposed by the United Kingdom from a payment of interest on a Loan, if on the
date on which the payment falls due:


 


(A)          the payment could have
been made to the Administrative Agent, Lender or L/C Issuer without a Tax
Deduction if such Administrative Agent, Lender or L/C Issuer was a Qualifying
Lender, but on that date such Administrative Agent, Lender or L/C Issuer, as
applicable, is not or has ceased to be a Qualifying Lender other than as a
result of any change after the date it became the Administrative Agent, a
Lender or an L/C Issuer under this Agreement in (or in the interpretation,
administration, or application of) any law or Treaty, or any published practice
or concession of any relevant taxing authority; or


 


(B)           (i) the relevant
Administrative Agent, Lender or L/C Issuer is a Qualifying Lender solely under subparagraph
(b) of the definition of “Qualifying Lender”; (ii) the Board of
the Inland Revenue has given (and not revoked) a direction (a “Direction”)
under section 349C of the Taxes Act (as that provision has effect on the date
on which the Administrative Agent, Lender or L/C Issuer became a party to this
Agreement) which relates to that payment and that the Administrative Agent,
Lender or L/C Issuer has received from such Designated Borrower that is a
Foreign Subsidiary a certified copy of that Direction; and (iii) the
payment could have been made to such Designated Borrower that is a Foreign
Subsidiary without any Tax Deduction in the absence of that Direction;


 


(C)           the Administrative
Agent, Lender or L/C Issuer, as applicable, is a Qualifying Lender solely under
subparagraph (b) of the definition of “Qualifying Lender” and it
has not, other than by reason of any change after the date of this Agreement in
(or in the interpretation, administration, or application of) any law, or any
published practice or concession of any relevant taxing authority, given a Tax
Confirmation to such Designated Borrower that is a Foreign Subsidiary; or


 


(D)          the Administrative
Agent, Lender or L/C Issuer, as applicable, is a Treaty Lender and such
Designated Borrower that is a Foreign Subsidiary making the payment is able to
demonstrate to the Administrative Agent, such Lender or L/C Issuer, as
applicable, with a certificate or other supporting evidence from the
appropriate Governmental Authority,  that the
payment could have been made to the Administrative Agent, Lender or L/C Issuer,
as applicable, without the Tax Deduction had the Administrative Agent, such
Lender or L/C Issuer completed all procedural formalities necessary for such
Designated Borrower that is a Foreign Subsidiary to obtain authorization to
make that payment without a Tax Deduction.


 


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


 


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(c)           Tax
Indemnifications.


 


(i)            Without limiting the
provisions of subsection (a) or (b) above but without
duplication of any payment pursuant to the provisions of subsection (a) or
(b) above, each Borrower shall, and does hereby, indemnify the
Administrative Agent, each Lender and the L/C Issuer, and shall make payment in
respect thereof within 20 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) withheld or deducted by such Borrower or the Administrative Agent or
paid by the Administrative Agent, such Lender or the L/C Issuer, as the case
may be, 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 provided, that if the applicable Borrower reasonably believes
that such Taxes were not correctly or legally asserted, the Lender or the L/C
Issuer, as the case may be, will use reasonable efforts to cooperate with such
Borrower to obtain a refund of such Taxes so long as such efforts would not, in
the reasonable determination of the Lender or the L/C Issuer, as the case may
be, result in any additional costs, expenses or risks or otherwise be
monetarily disadvantageous to it. Each Borrower shall also, and does hereby,
indemnify the Administrative Agent, and shall make payment in respect thereof
within 20 days after demand therefor, for any amount which a Lender or the L/C
Issuer for any reason fails to pay indefeasibly to the Administrative Agent as
required by clause (ii) of this subsection. A certificate as to the
amount of any such payment or liability delivered to a 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. Without limiting the
provisions of this clause (i), no Borrower shall be required to make
payments to the Administrative Agent, any Lender or the L/C Issuer pursuant to
the foregoing provisions of this subsection with respect any Indemnified Taxes
or Other Taxes so withheld or deducted more than nine months prior to the date
such Borrower receives notice thereof from the Administrative Agent, any Lender
or the L/C Issuer, as applicable.


 


(ii)           Without limiting the
provisions of subsection (a) or (b) above, each Lender
and the L/C Issuer shall, and does hereby, indemnify each Borrower and the
Administrative Agent, and shall make payable in respect thereof within ten days
after demand therefore, against any and all Taxes and any and all related
losses, claims, liabilities, penalties, interest and expenses (including the
fees, charges and disbursements of any counsel for any Borrower or the
Administrative Agent) incurred by or asserted against any Borrower or the
Administrative Agent by any Governmental Authority as a direct result of the
failure by such Lender or the L/C Issuer, as the case may be, to deliver, or as
a direct result of the inaccuracy, inadequacy or deficiency of, any
documentation required to be delivered by such Lender or the L/C Issuer, as the
case may be, to such Borrower or the Administrative Agent pursuant to subsection
(e). Each Lender and the L/C Issuer hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender
or the L/C Issuer, as the case may be, under this Agreement or any other Loan
Document against any amount due to the Administrative Agent under this clause
(ii). The agreements in this clause (ii) shall survive the
resignation and/or replacement of the Administrative Agent, any assignment of
rights by, or the replacement of, a Lender or the L/C Issuer, the termination
of the Aggregate Commitments and the repayment, satisfaction or discharge of
all other Obligations.


 


71
















 


(d)           Evidence
of Payments. Upon request by a Borrower or the Administrative Agent, as the
case may be, after any payment of Taxes by such Borrower or by the
Administrative Agent to a Governmental Authority as provided in this Section 3.01,
such Borrower shall deliver to the Administrative Agent or the Administrative
Agent shall deliver to such Borrower, as the case may be, the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of any return required by Laws to report such payment or
other evidence of such payment reasonably satisfactory to such Borrower or the
Administrative Agent, as the case may be.


 


(e)           Status
of Lenders; Tax Documentation.


 


(i)            Each Lender shall
deliver to the Company and to the Administrative Agent, at the time or times
prescribed by applicable Laws or when reasonably requested by the Company or
the Administrative Agent, such properly completed and executed documentation
prescribed by applicable Laws or by the taxing authorities of any jurisdiction
and such other reasonably requested information as will permit the Company or
the Administrative Agent, as the case may be, to determine (A) whether or
not payments made by the respective Borrowers hereunder or under any other Loan
Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any
available exemption from, or reduction of, applicable Taxes in respect of all
payments to be made to such Lender by the respective Borrowers pursuant to this
Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in the applicable jurisdictions.


 


(ii)           Without limiting the
generality of the foregoing, if a Borrower is resident for tax purposes in the
United States,


 


(A)          any Lender that is a “United
States person” within the meaning of Section 7701(a)(30) of the Code shall
deliver to the Company and the Administrative Agent executed originals of
Internal Revenue Service Form W-9 or such other documentation or
information prescribed by applicable Laws or reasonably requested by the
Company or the Administrative Agent as will enable such Borrower or the
Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements;
and


 


(B)           Each Foreign Lender
that is entitled under the Code or any applicable treaty to an exemption from
or reduction of withholding tax with respect to payments hereunder or under any
other Loan Document shall deliver to the Company and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the request of the Company on behalf of
such Borrower or the Administrative Agent, but only if such Foreign Lender is
legally entitled to do so), whichever of the following is applicable:


 


72

















 


(I)                                    executed
originals 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)                                executed
originals of Internal Revenue Service Form W-8ECI,


 


(III)                            executed
originals of Internal Revenue Service Form W-8IMY and all required
supporting documentation,


 


(IV)                            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 such 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) executed originals of Internal
Revenue Service Form W-8BEN, or


 


(V)                                executed
originals of any other form prescribed by applicable Laws as a basis for
claiming exemption from or a reduction in United States Federal withholding tax
together with such supplementary documentation as may be prescribed by
applicable Laws to permit such Borrower or the Administrative Agent to
determine the withholding or deduction required to be made.


 


(iii)          Each Lender shall promptly (A) notify
the Company and the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction, and (B) take
such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws of any jurisdiction that any Borrower or the Administrative Agent make any
deduction or withholding for taxes from amounts payable to such Lender.


 


(iv)          Each
of the Borrowers shall promptly deliver to the Administrative Agent or any
Lender, as the Administrative Agent or such Lender shall reasonably request, on
or prior to the Closing Date (or such later date on which it first becomes a
Borrower), and in a timely fashion thereafter, such documents and forms
required by any relevant taxing authorities under the Laws of any jurisdiction,
duly executed and completed by such Borrower, as are required to be furnished
by such Lender or the Administrative Agent under such Laws in connection with
any payment by the Administrative Agent or any Lender of Taxes or Other Taxes,
or otherwise in connection with the Loan Documents, with respect to such
jurisdiction.


 


(f)            Treatment
of Certain Refunds. Unless required by applicable Laws, at no time shall
the Administrative Agent have any obligation to file for or otherwise pursue on
behalf of a Lender or the L/C Issuer, or have any obligation to pay to any
Lender or the L/C Issuer, any refund of 


 


73

















 


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


 


3.02        Illegality.
If any Lender determines in good faith that any Law has made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund Eurocurrency
Rate Loans (whether denominated in Dollars or an Alternative Currency), or to
determine or charge interest rates based upon the Eurocurrency Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars or any
Alternative Currency in the applicable interbank market (each an “Affected
Eurocurrency Loan”), then (a) such Lender shall promptly give written
notice of such circumstances to the Company through the Administrative Agent,
which notice shall (i) in the case of any such restriction or prohibition
with respect to an Alternative Currency, include such Lender’s notification
that it will thenceforth be an Alternative Currency Participating Lender or a
Singapore Borrowing Participating Lender, as applicable, with respect to such
Alternative Currency, and (ii) be withdrawn whenever such circumstances no
longer exist, (b) the obligation of such Lender hereunder to make Affected
Eurocurrency Loans, continue Affected Eurocurrency Loans as such and, in the
case of Eurocurrency Loans in Dollars, to convert a Base Rate Loan to an
Affected Eurocurrency Loan shall forthwith be cancelled and, until such time as
it shall no longer be unlawful for such Lender to make or maintain such
Affected Eurocurrency Loans, such Lender shall then have a commitment only to
make a Base Rate Loan when an Affected Eurocurrency Loan is requested, (c) such
Lender’s Loans then outstanding as Affected Eurocurrency Loans, denominated in
Dollars, if any, shall be converted automatically to Base Rate Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law, and (d) such
Lender’s Loans then outstanding as Affected Eurocurrency Loans, if any,
denominated in a Alternative Currency shall be immediately repaid by the
Borrower on the last day of the then current Interest Period with respect
thereto (or such earlier date as may be required by any such Requirement of
Law) together with accrued interest thereon. If any such conversion or
prepayment of an Affected Eurocurrency Loan occurs on a day which is not the
last day of the then current Interest Period with respect thereto, the Company
shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.05.
Any Lender that is or becomes an Alternative Currency 


 


74

















 


Participating
Lender or a Singapore Borrowing Participating Lender, as applicable, with
respect to any Alternative Currency pursuant to this Section 3.02
or otherwise as provided in this Agreement shall promptly notify the
Administrative Agent and the Company in the event that the impediment resulting
in its being or becoming an Alternative Currency Participating Lender or a
Singapore Borrowing Participating Lender is alleviated in a manner such that it
can become an Alternative Currency Funding Lender with respect to such
Alternative Currency.


 


3.03        Inability
to Determine Rates. If (x) the Required Singapore Borrowing Funding
Lenders determine that for any reason in connection with any request for a
Eurocurrency Rate Loan or a conversion to or continuation thereof pursuant to a
Singapore Borrowing Event or (y) the Required Alternative Currency Funding
Lenders determine that for any reason in connection with any request for any
other Eurocurrency Rate Loan or a conversion to or continuation thereof (other
than a Singapore Borrowing Event), as applicable, that (a) deposits
(whether in Dollars or an Alternative Currency) are not being offered to banks
in the applicable offshore interbank market for such currency for the
applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurocurrency Rate for any
requested Interest Period with respect to a proposed Eurocurrency Rate Loan
(whether denominated in Dollars or an Alternative Currency), or (c) the
Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will
promptly so notify the Company and each Lender.  Thereafter, the
obligation of the applicable Lenders to make or maintain Eurocurrency Rate
Loans in the affected currency or currencies shall be suspended until the
Administrative Agent (upon the instruction of the Required Singapore Borrowing
Funding Lenders or the Required Alternative Currency Funding Lenders, as
applicable) revokes such notice.  Upon receipt of such notice, the Company
may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans in the affected currency or currencies
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 Eurocurrency
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 or for the account of, or
credit extended or participated in by, any Lender (except (A) any reserve
requirement contemplated by Section 3.04(e) and
(B) the requirements of the Bank of England and the Financial Services
Authority or the European Central Bank reflected in the Mandatory Cost, other
than as set forth below) or the L/C Issuer;


 


(ii)           subject any Lender or
the L/C Issuer to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any participation in a Letter of Credit or any
Eurocurrency Rate 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);


 


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(iii)          result in the failure of
the Mandatory Cost, as calculated hereunder, to represent the cost to any
Lender of complying with the requirements of the Bank of England and/or the
Financial Services Authority or the European Central Bank in relation to its
making, funding or maintaining Eurocurrency Rate Loans; or


 


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


 


and the result of any of
the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to
make any such Loan), or to increase the cost to such Lender or the L/C Issuer
of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
L/C Issuer hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or the L/C Issuer, the Company will pay (or cause
the applicable Designated Borrower to pay) 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 reasonably determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender’s or the L/C Issuer’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender’s or the L/C Issuer’s capital or on the capital
of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence
of this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s or
the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s
holding company with respect to capital adequacy), then from time to time the
Company will pay (or cause the applicable Designated Borrower to pay) to such
Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C
Issuer’s holding company for any such reduction suffered.


 


(c)           Certificates
for Reimbursement. A certificate of a Lender or the L/C Issuer setting
forth in reasonable detail the amount or amounts necessary to compensate such
Lender or the L/C Issuer or its holding company, as the case may be, as
specified in subsection (a) or (b) of this Section and
the manner of determining such amount and delivered to the Company shall be
conclusive absent manifest error. The Company shall pay (or cause the
applicable Designated Borrower to pay) such Lender or the L/C Issuer, as the
case may be, the amount shown as due on any such certificate within 20 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 no Borrower shall be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing 


 


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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 Company of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’s intention
to claim compensation therefor (except that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof).


 


(e)           Additional
Reserve Requirements. The
Company shall pay (or cause the applicable Designated Borrower to pay) to each
Lender, (i) 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 Eurocurrency 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), and (ii) as long as such Lender shall
be required to comply with any reserve ratio requirement or analogous
requirement of any other central banking or financial regulatory authority
imposed in respect of the maintenance of the Commitments or the funding of the
Eurocurrency Rate Loans, such additional costs (expressed as a percentage per
annum and rounded upwards, if necessary, to the nearest five decimal places)
equal to the actual costs allocated to such Commitment or Loan by such Lender
(as determined by such Lender in good faith, which determination shall be
conclusive absent manifest error, which in each case shall be due and payable
on each date on which interest is payable on such Loan, provided the
Company shall have received at least 20 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest or costs from such Lender. If
a Lender fails to give notice ten days prior to the relevant Interest Payment
Date, such additional interest or costs shall be due and payable ten days from
receipt of such notice.


 


3.05        Compensation
for Losses. Upon written demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Company shall promptly compensate
(or cause the applicable Designated Borrower to 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 any Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base
Rate Loan on the date or in the amount notified by the Company or the
applicable Designated Borrower;


 


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


 


(d)           any
assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Company pursuant to Section 10.13;


 


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


 


For purposes of
calculating amounts payable by the Company (or the applicable Designated Borrower)
to the Lenders under this Section 3.05, each Lender shall be deemed
to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such Loan by a
matching deposit or other borrowing in the offshore interbank market for such
currency for a comparable amount and for a comparable period, whether or not
such Eurocurrency Rate Loan was in fact so funded. Any demand for compensation
shall set forth in reasonable detail the amount and method of determining the
loss, cost or expenses claimed.


 


3.06        Mitigation
Obligations; Replacement of Lenders.


 


(a)           Designation
of a Different Lending Office. If any Lender requests compensation under Section 3.04,
or any Borrower is required to pay any additional amount to any Lender, the L/C
Issuer or any Governmental Authority for the account of any Lender or the L/C
Issuer pursuant to Section 3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender or the L/C Issuer shall,
as applicable, 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 or the L/C Issuer, 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 or the L/C Issuer, as the case may be, to
any unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender or the L/C Issuer, as the case may be. The Company hereby agrees to
pay (or to cause the applicable Designated Borrower to pay) all reasonable
costs and expenses incurred by any Lender or the L/C Issuer in connection with
any such designation or assignment.


 


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


 


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


 


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:


 


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(a)           The
Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) 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 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 Company;


 


(ii)           Notes executed by the
Borrowers in favor of each Lender requesting Notes;


 


(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
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 Company 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 could not reasonably be expected to have a Material Adverse
Effect;


 


(v)           a favorable opinion of McGrath North Mullin & Kratz, PC LLO,
counsel to the Loan Parties, addressed to the Administrative Agent and each
Lender, in the form set forth in Exhibit H;


 


(vi)          a certificate of a
Responsible Officer of each Loan Party either (A) attaching copies of all
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 consents, licenses
and approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;


 


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


 


(viii)        evidence that prior to or
concurrently with the Closing Date (A) all obligations and Indebtedness
under or with respect to the Existing Five-Year Credit Agreement have been or
are being paid in full, (B) all commitments, and any notes issued, in
connection with the Existing Five-Year Credit Agreement have been or are being
terminated and (C) all Liens securing obligations under the Existing
Five-Year Credit Agreement, if any, have been or are being released;


 


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(ix)           executed counterparts of (A) a Company Guaranty for each Foreign
Obligor that is a Designated Borrower on the Closing Date and (B) a
Subsidiary Guaranty; and


 


(x)            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 Company shall have paid all fees,
charges and disbursements of counsel to the Administrative Agent to the extent
invoiced prior to or on the Closing Date, plus such additional 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 Company and
the Administrative Agent).


 


Without limiting the
generality of the provisions of the last paragraph of Section 9.03,
for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


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


 


(a)           The
representations and warranties of (i) the Borrowers contained in Article V
and (ii) each Loan Party contained in each other Loan Document or in any
document furnished at any time under or in connection herewith or therewith,
shall be true and correct on and as of the date of such Credit Extension,
except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they shall be true and correct as of such
earlier date, and except that for purposes of this Section 4.02,
the representations and warranties contained in 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.


 


(b)           No
Default shall exist, or would result from such proposed Credit Extension or 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.


 


(d)           If the
applicable Borrower is a Designated Borrower, then the conditions of Section 2.14
to the designation of such Borrower as a Designated Borrower shall have been
met to the satisfaction of the Administrative Agent.


 


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(e)           In the
case of a Credit Extension to be denominated in an Alternative Currency, there
shall not have occurred any change in national or international financial,
political or economic conditions or currency exchange rates or exchange
controls which in the reasonable opinion of the Administrative Agent, the
Required Lenders (in the case of any Loans to be denominated in an Alternative
Currency) or the L/C Issuer (in the case of any Letter of Credit to be
denominated in an Alternative Currency) would make it impracticable for such
Credit Extension to be denominated in the relevant Alternative Currency.


 


Each Request for Credit
Extension (other than a Committed Loan Notice requesting only a conversion of
Committed Loans to the other Type or a continuation of Eurocurrency Rate Loans)
submitted by the Company shall be deemed to be a representation and warranty by
each Loan Party 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 Company represents
and warrants to the Administrative Agent and the Lenders that:


 


5.01        Subsidiaries;
Capitalization. As of the Closing Date, (a) the Company has only the
Subsidiaries set forth on Schedule 5.01, (b) the authorized and
issued and outstanding Capital Stock of the Company is, as of the date set
forth in the Report on Form 10-K filed by the Company with the SEC for the
fiscal year ended December 29, 2007, as set forth therein, (c) the
authorized and issued and outstanding Capital Stock of each Subsidiary is as
set forth on Schedule 5.01 and (d) the percentage owned by the
Company of the issued and outstanding Capital Stock of each Subsidiary is as
set forth on Schedule 5.01. Except as set forth on Schedule 5.01,
the shares of, or partnership or other interests in, each Subsidiary of the
Company are owned beneficially and of record by the Company or another
Subsidiary of the Company, are free and clear of all Liens (other than
Permitted Liens) and are duly authorized, validly issued, fully paid and
nonassessable. As of the Closing Date, except as set forth on Schedule 5.01,
(x) neither the Company nor any of its Subsidiaries has issued any
securities convertible into, or options or warrants for, any common or
preferred equity securities thereof, (y) there are no agreements, voting
trusts or understandings binding upon the Company or any of its Subsidiaries
with respect to the voting securities of the Company or any of its Subsidiaries
or affecting in any manner the sale, pledge, assignment or other disposition
thereof, including any right of first refusal, option, redemption, call or
other right with respect thereto, whether similar or dissimilar to any of the
foregoing, and (z) all of the outstanding Capital Stock of each Subsidiary
of the Company is owned by the Company or another Subsidiary of the Company.


 


5.02        Existence
and Power. Each of the Company and its Subsidiaries is duly organized or
formed and validly existing in good standing under the laws of the jurisdiction
of its formation, has all requisite power and authority to own its Property and
to carry on its business as now conducted, and is in good standing and
authorized to do business in each jurisdiction in which the nature of the
business conducted therein or the Property owned by it therein makes such
qualification necessary, except where such failure to qualify could not
reasonably be expected to have a Material Adverse Effect.


 


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5.03      Authority and Execution.  Each of the Company and each of its
Subsidiaries has full legal power and authority to enter into, execute, deliver
and perform the terms of the Loan Documents to which it is a party all of which
have been duly authorized by all proper and necessary corporate, partnership or
other applicable action and are in full compliance with its Organization
Documents.  The Company and each of its
Subsidiaries has duly executed and delivered the Loan Documents to which it is
a party.


 


5.04      Binding Agreement.  The Loan Documents constitute the valid
and legally binding obligations of each of the Company and its Subsidiaries, in
each case to the extent it is a party thereto, enforceable in accordance with
their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors’ rights generally or general principles
of equity.


 


5.05      Litigation.  Except as set forth on Schedule 5.05,
there are no actions, suits or proceedings at law or in equity or by or before
any Governmental Authority (whether purportedly on behalf of the Company or any
of its Subsidiaries) pending or, to the knowledge of the Company, threatened
against the Company or any of its Subsidiaries or maintained by the Company or
any of its Subsidiaries or which may affect the Property of the Company or any
of its Subsidiaries or any of their respective Properties or rights, which
could reasonably be expected to have a Material Adverse Effect.


 


5.06      Required 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.


 


5.07      Absence of Defaults; No
Conflicting Agreements.


 


(a)          None of the Company or any of its
Subsidiaries is in default under any mortgage, indenture, contract or agreement
to which it is a party or by which it or any of its Property is bound, the
effect of which default could reasonably be expected to have a Material Adverse
Effect.  The execution, delivery or carrying
out of the terms of the Loan Documents will not constitute a default under, or
result in the creation or imposition of, or obligation to create, any Lien upon
any Property of the Company or any of its Subsidiaries or result in a breach of
or require the mandatory repayment of or other acceleration of payment under or
pursuant to the terms of any such mortgage, indenture, contract or agreement.


 


(b)         None of the Company or any of its Subsidiaries is in
default with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Authority which default could reasonably be
expected to have a Material Adverse Effect.


 


5.08      Compliance and Applicable Laws.  Each of the Company and its Subsidiaries
is in compliance in all material respects with all statutes, regulations, rules and
orders of all Governmental Authorities which are applicable to it, a violation
of which could reasonably be expected to have a Material Adverse Effect.


 


5.09      Taxes.  Each of the Company and each of its
Subsidiaries has filed or caused to be filed all tax returns required to be
filed and has paid, or has made adequate provision for the 


 


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payment of, all taxes
shown to be due and payable on said returns or in any assessments made against
it (other than those being contested as required under Section 6.04)
which would be material to the Company or any of its Subsidiaries, and no tax
Liens have been filed with respect thereto. 
The charges, accruals and reserves on the books of the Company and each
of its Subsidiaries with respect to all taxes are, to the best knowledge of the
Company, adequate for the payment of such taxes, and the Company knows of no
unpaid assessment which is due and payable against the Company or any of its
Subsidiaries or any claims being asserted which could reasonably be expected to
have a Material Adverse Effect, except such thereof as are being contested as
required under Section 6.04, and for which adequate reserves have
been set aside in accordance with GAAP.


 


5.10      Government Regulations.  Neither the Company, any of its
Subsidiaries nor any Person Controlled by, Controlling, or under common Control
with, the Company or any of its Subsidiaries, is subject to regulation under
Federal Power Act, as amended, or the Investment Company Act of 1940, as
amended, or is subject to any statute or regulation which prohibits or
restricts the incurrence of Indebtedness, including statutes or regulations
relative to common or contract carriers or to the sale of electricity, gas,
steam, water, telephone, telegraph or other public utility services.


 


5.11      Federal Reserve Regulations; Use of Loan Proceeds.  Neither the Company nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin
Stock.  After giving effect to the making
of each Loan and each Letter of Credit, Margin Stock will constitute less than
25% of the assets (as determined by any reasonable method) of the Company and
its Subsidiaries.


 


5.12      Plans.  Each Employee Benefit Plan is in
compliance with ERISA and the Code, where applicable, in all material
respects.  As of the Closing Date, (a) the
amount of all Unfunded Pension Liabilities under the Pension Plans, excluding
any plan which is a Multiemployer Plan, does not exceed $50,000, and (b) the
amount of the aggregate Unrecognized Retiree Welfare Liability under all
applicable Employee Benefit Plans does not exceed $50,000.  The Company and each of its Subsidiaries and
ERISA Affiliates has complied with the requirements of Section 515 of
ERISA with respect to each Pension Plan which is a Multiemployer Plan.  As of the Closing Date, the Company and its
Subsidiaries and ERISA Affiliates have no liability under Section 4201 or
4204 of ERISA (including the obligation to satisfy secondary liability as a
result of purchaser default) and the aggregate potential annual withdrawal
liability payments, as determined in accordance with Title IV of ERISA, of the
Company and its Subsidiaries and ERISA Affiliates with respect to all Pension
Plans which are Multiemployer Plans is approximately $50,000.  The Company and its Subsidiaries and ERISA
Affiliates have, as of the Closing Date, made all contributions or payments to
or under each such Pension Plan required by law or the terms of such Pension
Plan or any contract or agreement with respect thereto.  No material liability to the PBGC has been,
or is expected by the Company, any of its Subsidiaries or any ERISA Affiliate
to be, incurred by the Company, any such Subsidiary or any ERISA
Affiliate.  Liability, as referred to in
this Section includes any joint and several liability.  Each Employee Benefit Plan which is a group
health plan within the meaning of Section 5000(b)(1) of the Code is
in material compliance with the continuation of health care coverage
requirements of Section 4980B of the Code.


 


5.13      Financial Statements.  The Company has heretofore delivered to
the Administrative Agent and the Lenders copies of its Form 10K for the
fiscal year ending December 29, 2007, 


 


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containing the audited
Consolidated Balance Sheets of the Company and its Subsidiaries as of December 29,
2007, and the related Consolidated Statements of Operations, Stockholder’s
Equity and Cash Flows for such fiscal year (with the applicable related notes
and schedules, the “Financial Statements”).  The Financial Statements fairly present the
Consolidated financial condition and results of the operations of the Company
and its Subsidiaries as of the dates and for the periods indicated therein and
have been prepared in conformity with GAAP. 
Except as reflected in the Financial Statements or in the footnotes
thereto, neither the Company nor any of its Subsidiaries has any obligation or
liability of any kind (whether fixed, accrued, a Contingent Obligation,
unmatured or otherwise) which, in accordance with GAAP, should have been shown
in the Financial Statements and was not. 
Since December 29, 2007, there has been no Material Adverse Effect.


 


5.14      Property.  Each of the Company and each of its
Subsidiaries has good and marketable title to, or a valid leasehold interest
in, all of its real Property, and is the owner of, or has a valid lease of, all
personal property, in each case which is material to the Company and its
Subsidiaries, taken as a whole, subject to no Liens, except such Permitted
Liens.  All leases of Property to the
Company or any of its Subsidiaries are in full force and effect, the Company or
such Subsidiary, as the case may be, enjoys quiet and undisturbed possession
under all leases of real property and neither the Company nor any of its
Subsidiaries is in default beyond any applicable grace period of any provision
thereof, the effect of which could reasonably be expected to have a Material
Adverse Effect.


 


5.15      Authorizations.  Each of the Company and each of its
Subsidiaries possesses or has the right to use all franchises, licenses and
other rights as are material and necessary for the conduct of its business, and
with respect to which it is in compliance, with no known conflict with the
valid rights of others which could reasonably be expected to have a Material
Adverse Effect.  No event has occurred
which permits or, to the best knowledge of the Company, after notice or the
lapse of time or both, or any other condition, could reasonably be expected to
permit, the revocation or termination of any such franchise, license or other
right which revocation or termination could reasonably be expected to have a
Material Adverse Effect.


 


5.16      Environmental Matters.  Neither the Company nor any of its
Subsidiaries (a) has received written notice or otherwise learned of any
claim, demand, action, event, condition, report or investigation indicating or
concerning any potential or actual liability which individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect,
arising in connection with (i) any non compliance with or violation of the
requirements of any applicable federal, state, local or foreign environmental
health or safety statute or regulation, or (ii) the release or threatened
release of any toxic or hazardous waste, substance or constituent, or other
substance into the environment, (b) to the best knowledge of the Company,
has any threatened or actual liability in connection with the release or
threatened release of any toxic or hazardous waste, substance or constituent,
or other substance into the environment which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect, (c) has
received notice of any federal, state, local or foreign investigation
evaluating whether any remedial action is needed to respond to a release or
threatened release of any toxic or hazardous waste, substance or constituent or
other substance into the environment for which the Company or any of its
Subsidiaries is or would be liable, which liability would reasonably be
expected to have a Material Adverse Effect, or (d) has received notice
that the Company or any of its Subsidiaries is or may be liable to any Person
under the Comprehensive Environmental Response, Compensation and Liability Act,
as amended, 42 


 


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U.S.C. Section 9601
et seq., or any analogous state law, which liability would reasonably be
expected to have a Material Adverse Effect. 
The Company and each of its Subsidiaries is in compliance with the
financial responsibility requirements of federal, state, local and foreign
environmental laws to the extent applicable, including those contained in 40
C.F.R., parts 264 and 265, subpart H, and any analogous state law, except in
those cases in which the failure so to comply would not reasonably be expected
to have a Material Adverse Effect.


 


5.17      Absence of Certain Restrictions. 
No indenture, certificate of designation for preferred stock, agreement
or instrument to which the Company or any of its Subsidiaries is a party (other
than, or in connection with, this Agreement and the Subordinated Notes in
effect on the Closing Date), prohibits or limits in any way, directly or
indirectly the ability of any Subsidiary of the Company to make Restricted
Payments or repay any Indebtedness to the Company or to another Subsidiary of
the Company.


 


5.18      No Misrepresentation.  No
representation or warranty contained in any Loan Document and no certificate or
report from time to time furnished by the Company or any of its Subsidiaries in
connection with the transactions contemplated thereby, contains or will contain
a misstatement of material fact or omits or will omit to state a material fact
required to be stated in order to make the statements therein contained not
misleading in the light of the circumstances under which made, provided that
any projections or pro forma financial information contained therein are based
upon good faith estimates and assumptions believed by the Company to be
reasonable at the time made, it being recognized by the Administrative Agent
and the Lenders that such projections as to future events are not to be viewed
as facts, and that actual results during the period or periods covered thereby
may differ from the projected results.


 


5.19      Taxpayer Identification Number; Other Identifying Information.  The true and correct U.S. taxpayer identification
number of the Company and each
Designated Borrower that is a Domestic Subsidiary and a party hereto on the
Closing Date is set forth on Schedule 10.02.  The true and correct unique identification
number of each Designated Borrower that is a Foreign Subsidiary and a party
hereto on the Closing Date that has been issued by its jurisdiction of
organization and the name of such jurisdiction are set forth on Schedule
5.19 .


 


5.20      Representations as to Foreign Obligors. 
Each of
the Company and each Foreign Obligor represents and warrants to the
Administrative Agent and the Lenders that:


 


(a)           Such Foreign Obligor is subject to civil and
commercial Laws with respect to its obligations under this Agreement and the
other Loan Documents to which it is a party (collectively as to such Foreign
Obligor, the “Applicable Foreign Obligor Documents”), and the execution,
delivery and performance by such Foreign Obligor of the Applicable Foreign
Obligor Documents constitute and will constitute private and commercial acts
and not public or governmental acts. 
Neither such Foreign Obligor nor any of its property has any immunity
from jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) under the laws of the jurisdiction in which such
Foreign Obligor is organized and existing in respect of its obligations under
the Applicable Foreign Obligor Documents.


 


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(b)          The Applicable Foreign Obligor Documents are in proper
legal form under the Laws of the jurisdiction in which such Foreign Obligor is
organized and existing for the enforcement thereof against such Foreign Obligor
under the Laws of such jurisdiction, and to ensure the legality, validity,
enforceability, priority or admissibility in evidence of the Applicable Foreign
Obligor Documents.  It is not necessary
to ensure the legality, validity, enforceability, priority or admissibility in
evidence of the Applicable Foreign Obligor Documents that the Applicable
Foreign Obligor Documents be filed, registered or recorded with, or executed or
notarized before, any court or other authority in the jurisdiction in which
such Foreign Obligor is organized and existing or that any registration charge
or stamp or similar tax be paid on or in respect of the Applicable Foreign
Obligor Documents or any other document, except for (i) any such filing,
registration, recording, execution or notarization as has been made or is not
required to be made until the Applicable Foreign Obligor Document or any other
document is sought to be enforced and (ii) any charge or tax as has been
timely paid.


 


(c)           There is no tax, levy, impost, duty, fee, assessment
or other governmental charge, or any deduction or withholding, imposed by any
Governmental Authority in or of the jurisdiction in which such Foreign Obligor
is organized and existing either (i) on or by virtue of the execution or
delivery of the Applicable Foreign Obligor Documents or (ii) on any
payment to be made by such Foreign Obligor pursuant to the Applicable Foreign
Obligor Documents, except as has been disclosed to the Administrative Agent.


 


(d)          The execution, delivery and performance of the
Applicable Foreign Obligor Documents executed by such Foreign Obligor are,
under applicable foreign exchange control regulations of the jurisdiction in
which such Foreign Obligor is organized and existing, not subject to any
notification or authorization except (i) such as have been made or obtained,
(ii) such as cannot be made or obtained until a later date (provided
that any notification or authorization described in clause (ii) shall
be made or obtained as soon as is reasonably practicable) or (iii) in the
case of Valmont Holland, notification requirements to the Dutch Central Bank
with respect to payments made to and by Persons inside The Netherlands from and
to Persons outside The Netherlands pursuant to the 1994 Act on Financial
Foreign Relations (Wet financiële
betrekkingen buitenland 1994) and the General Reporting Obligations
2003 (Rapportagevoorschriften
betalingsbalansrapportages 2003).


 


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 Company
shall:


 


6.01      Financial Statements and Information. 
Maintain,
and cause each of its Subsidiaries to maintain, a standard system of accounting
in accordance with GAAP, and furnish or cause to be furnished to the
Administrative Agent and each Lender:


 


(a)           Compliance Certificate.  Within 45
days after the end of each of the first three fiscal quarters (90 days after
the end of the last fiscal quarter), a Compliance Certificate, certified by a
Responsible Officer of the Company.


 


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(b)          Form 10K.  As soon as
available, but in any event within 90 days after the end of each fiscal year of
the Company (or, if earlier, five days after the date required to be filed with
the SEC), commencing with the fiscal year of the Company ending December 27,
2008, a copy of the annual audited financial statements of the Company and its
Subsidiaries, prepared on a Consolidated basis in accordance with GAAP, as
filed with the SEC.  Such financial
statements shall be certified without qualification by the Accountants, which
certification shall (i) state that the audit by such Accountants was
conducted in accordance with generally accepted auditing standards, (ii) state
that such audit includes examining, on a test basis, evidence supporting the
amounts and disclosures in such financial statements, and (iii) include
the opinion of such Accountants that such financial statements present fairly,
in all material respects, the financial position of the Company and its
Subsidiaries and the results of their operations and their cash flows for such
fiscal year in conformity with GAAP, except as otherwise specified in such
opinion.


 


(c)           Form 10Q.  As soon as
available, but in any event within 45 days after the end of each fiscal quarter
(except the last fiscal quarter) of each fiscal year of the Company (or, if
earlier, five days after the date required to be filed with the SEC),
commencing with the fiscal quarter of the Company ending September 27,
2008,  copies of the unaudited financial
statements of the Company and its Subsidiaries, prepared on a Consolidated
basis in accordance with GAAP, as filed with the SEC.


 


(d)          Other Information. Such other information as the Administrative Agent
or any Lender may reasonably request from time to time.


 


6.02      Certificates; Other
Information.  Furnish to the Administrative Agent and
each Lender:


 


(a)           Prompt written notice if there shall
occur a Default;


 


(b)          Prompt written notice of: (i) any
citation, summons, subpoena, order to show cause or other document naming the
Company or any of its Subsidiaries a party to any proceeding before any
Governmental Authority which could reasonably be expected to have a Material
Adverse Effect or which calls into question the validity or enforceability of
any of the Loan Documents, and include with such notice a copy of such
citation, summons, subpoena, order to show cause or other document, (ii) any
lapse or other termination of any material license, permit, franchise or other
authorization issued to the Company or any of its Subsidiaries by any Person or
Governmental Authority, and (iii) any refusal by any Person or
Governmental Authority to renew or extend any such material license, permit,
franchise or other authorization, which lapse, termination, refusal or dispute
could reasonably be expected to have a Material Adverse Effect;


 


(c)           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 Company, and copies of all annual, regular,
periodic and special reports and registration statements which the Company 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;


 


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(d)          Prompt written notice in the event that the Company,
any of its Subsidiaries or any ERISA Affiliate knows, or has reason to know,
that (i) any Termination Event with respect to a Pension Plan has occurred
or will occur, (ii) any  condition
exists with respect to a Pension Plan which presents a material risk of
termination of the Pension Plan, imposition of an excise tax, requirement to
provide security to the Pension Plan or other liability on the Company, any of
its Subsidiaries or any ERISA Affiliate, (iii) the Company, any of its
Subsidiaries or any ERISA Affiliate has applied for a waiver of the minimum
funding standard under Section 412 of the Code with respect to a Pension
Plan, (iv) the aggregate amount of the Unfunded Pension Liabilities under
all Pension Plans is in excess of $50,000, (v) the aggregate amount of
Unrecognized Retiree Welfare Liability under all applicable Employee Benefit
Plans is in excess of $50,000, (vi) the Company, any of its Subsidiaries
or any ERISA Affiliate has engaged in a Prohibited Transaction with respect to
an Employee Benefit Plan, (vii) the imposition of any tax under Section 4980B(a) of
the Code or (viii) the assessment of a civil penalty under Section 502(c) of
ERISA, together with a certificate of a Responsible Officer of the Company
setting forth the details of such event and the action which the Company, such
Subsidiary or such ERISA Affiliate proposes to take with respect thereto,
together with a copy of all notices and filings with respect thereto;


 


(e)           Prompt written notice in the event that Company, any
of its Subsidiaries or any ERISA Affiliate shall receive a demand letter from
the PBGC notifying the Company, such Subsidiary or such ERISA Affiliate of any
final decision finding liability and the date by which such liability must be
paid, together with a copy of such letter and a certificate of a Responsible
Officer of the Company setting forth the action which the Company, such
Subsidiary or such ERISA Affiliate proposes to take with respect thereto;


 


(f)           Promptly upon the same becoming available, and in any
event by the date such amendment is adopted, a copy of any Pension Plan
amendment that the Company, any of its Subsidiaries or any ERISA Affiliate
proposes to adopt which would require the posting of security under Section 401(a)(29)
of the Code, together with a certificate of a Responsible Officer of the
Company setting forth the reasons for the adoption of such amendment and the
action which the Company, such Subsidiary or such ERISA Affiliate proposes to
take with respect thereto;


 


(g)          As soon as possible and in any event by the tenth day
after any required installment or other payment under Section 412 of the
Code owed to a Pension Plan shall have become due and owing and remain unpaid a
copy of the notice of failure to make required contributions provided to the
PBGC by the Company, any of its Subsidiaries or any ERISA Affiliate under Section 412(n) of
the Code, together with a certificate of a Financial Officer setting forth the
action which the Company, such Subsidiary or such ERISA Affiliate proposes to
take with respect thereto; and


 


(h)          Such other information as the Administrative Agent or
any Lender shall reasonably request from time to time.


 


Each notice pursuant to
this Section 6.02 shall be accompanied by a statement of a
Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company has taken and proposes
to take with respect thereto.  Each
notice pursuant to Section 6.02(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan Document
that have been breached.


 


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Documents required to be delivered pursuant to Section 6.01(b) or
(c) or Section 6.02(c) (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 Company posts such documents, or
provides a link thereto on the Company’s website on the Internet at the website
address listed on Schedule 10.02; or (ii) on which such documents
are posted on the Company’s behalf on an Internet or intranet website, if any,
to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (i) the Company shall deliver paper copies
of such documents to the Administrative Agent or any Lender that requests the
Company to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Company shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and 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 Company
shall be required to provide paper copies of the Compliance Certificates
required by Section 6.01(a) 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 Company with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.


 


Each Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Arranger will make available to the Lenders and
the L/C Issuer materials and/or information provided by or on behalf of the
Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”)
and (b) certain of the Lenders (each, a “Public Lender”) may have
personnel who do not wish to receive material non-public information with
respect to any of the Borrowers or their respective Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in
investment and other market-related activities with respect to such Persons’
securities.  Each 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 Borrowers shall be deemed
to have authorized the Administrative Agent, the Arranger, the L/C Issuer and
the Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to any Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 10.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Side Information”; and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Side Information”.


 


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6.03      Legal Existence.  Except as may be otherwise permitted by Sections
7.03, 7.04 and 7.05, maintain, and cause each of its
Subsidiaries to maintain, its corporate, partnership or analogous existence, as
the case may be, in good standing in the jurisdiction of its formation and in
each other jurisdiction in which the failure to do so could reasonably be
expected to have a Material Adverse Effect, except that any Subsidiary of the
Company (other than a Designated Borrower or a Subsidiary Guarantor) may fail
to maintain its corporate, partnership or analogous existence, as the case may
be, in good standing in any jurisdiction at any time, provided that such
failure could not reasonably be expected to have a Material Adverse Effect.


 


6.04      Taxes.  Pay and discharge when due, and cause
each of its Subsidiaries to do so, all Taxes upon or with respect to the
Company or such Subsidiary and all Taxes upon the income, profits and Property
of the Company and its Subsidiaries, which if unpaid, could reasonably be
expected to have a Material Adverse Effect or become a Lien on Property of the
Company or such Subsidiary (other than a Permitted Lien), unless and to the
extent only that such Taxes shall be contested in good faith and by appropriate
proceedings diligently conducted by the Company or such Subsidiary and provided
that such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.


 


6.05      Insurance.  Maintain, and cause each of its
Subsidiaries to maintain, with financially sound and reputable insurance
companies insurance on all its Property in at least such amounts and against at
least such risks (but including in any event public liability, product
liability and business interruption coverage) as are usually insured against in
the same general area by companies engaged in the same or a similar business;
and furnish to the Administrative Agent, upon written request, full information
as to the insurance carried.


 


6.06      Performance of Obligations.  Pay and discharge when due, and cause
each of its Subsidiaries to do so, all lawful Indebtedness, obligations and
claims for labor, materials and supplies or otherwise which, if unpaid, might (a) have
a Material Adverse Effect or (b) become a Lien upon Property of the
Company or any of its Subsidiaries other than a Permitted Lien, unless and to
the extent only that the validity of such Indebtedness, obligation or claim
shall be contested in good faith and by appropriate proceedings diligently
conducted and provided that the Company shall give the Administrative Agent
prompt notice of any such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP shall
have been made therefor.


 


6.07      Condition of Property.  At all times, maintain, protect and keep
in good repair, working order and condition (ordinary wear and tear excepted),
and cause each of its Subsidiaries to do so, all Property necessary to the
operation of the Company’s or such Subsidiary’s business, except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.


 


6.08      Observance of Legal Requirements. 
Observe
and comply in all respects, and cause each of its Subsidiaries to do so, with
all laws, ordinances, orders, judgments, rules, regulations, certifications,
franchises, permits, licenses, directions and requirements of all Governmental
Authorities, which now or at any time hereafter may be applicable to it, a
violation of which could reasonably be expected to have a Material Adverse
Effect, except such thereof as shall be contested in good faith and by
appropriate proceedings diligently conducted by it, provided that the Company 


 


90

















 


shall give the
Administrative Agent prompt notice of such contest and that such reserve or
other appropriate provision as shall be required by the Accountants in
accordance with GAAP shall have been made therefor.


 


6.09      Inspection of Property; Books and Records; Discussions.  At all reasonable times, upon reasonable prior notice
(which notice shall set forth the purpose for such inspection; provided
that the failure to give the purpose shall not affect any rights pursuant to
this Section 6.09), permit representatives of the Administrative
Agent and each Lender to visit the offices of the Company and each of its
Subsidiaries, to examine the books and records thereof and Accountants’ reports
relating thereto, and to make copies or extracts therefrom, to discuss the
affairs of the Company and each such Subsidiary with the respective officers
thereof, and to examine and inspect the Property of the Company and each such
Subsidiary.


 


6.10      Authorizations.  Maintain, and cause each of its
Subsidiaries to maintain, in full force and effect, all material licenses,
franchises, permits, licenses, authorizations and other rights as are necessary
for the conduct of its business.


 


6.11      Financial Covenants.


 


(a)           Interest Coverage Ratio. 
Maintain at all times an Interest Coverage Ratio of not less than 2.50
to 1.00.


 


(b)           Leverage Ratio. 
Maintain at all times a Leverage Ratio of not more than 3.75 to 1.00.


 


(c)           Senior Debt Ratio. 
Maintain at all times a Senior Debt Ratio of not more than 2.50 to 1.00.


 


6.12      Subsidiaries.


 


(a)           Except as may otherwise be permitted by Sections
6.03, 7.03, 7.04 and 7.05, at all times cause each
Designated Borrower to be a Qualified Subsidiary and each Subsidiary Guarantor
to be a direct or indirect wholly owned Subsidiary of the Company.


 


(b)          As soon as practicable but in any event within 30
Business Days a Person shall have become a Material Subsidiary (including,
without limitation, by merger), cause such Material Subsidiary to deliver to
the Administrative Agent a Subsidiary Guaranty Joinder Agreement duly executed
by such Material Subsidiary on and as of such date and, in the event that such
date shall occur after the initial Borrowing hereunder, to deliver to the
Administrative Agent, simultaneously with the execution and delivery of the
same, (i) a certificate, dated the date such Material Subsidiary shall
have become a party to the Subsidiary Guaranty, executed by such Material
Subsidiary and substantially in the form of, and with substantially the same
attachments as, the certificate which would have been required under Section 4.01(a)(iii) if
such Material Subsidiary had become a party to the Subsidiary Guaranty on or
before the first Borrowing hereunder, and (ii) if requested by the Administrative
Agent, an opinion of counsel to such Material Subsidiary, covering the same
matters with respect to such Material Subsidiary as were covered by the
opinions delivered pursuant to Section 4.01(a)(v), in form and
substance reasonably satisfactory to the Administrative Agent.


 


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6.13        Approvals
and Authorizations. Maintain all authorizations, consents, approvals and
licenses from, exemptions of, and filings and registrations with, each
Governmental Authority of the jurisdiction in which each Foreign Obligor is
organized and existing, and all approvals and consents of each other Person in
such jurisdiction, in each case that are required in connection with the Loan
Documents, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


6.14        Use
of Proceeds. Use the proceeds of the Credit Extensions (a) to
refinance Indebtedness outstanding under the Existing Five-Year Credit
Agreement and (b) for general corporate purposes not in contravention of
any Law or of any Loan Document.


 


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 Company shall not, directly or indirectly:


 


7.01        Indebtedness.
Create, incur, assume or suffer to exist any liability for Indebtedness, or
permit any of its Subsidiaries to do so, except:


 


(a)           Indebtedness
due under the Loan Documents;


 


(b)           Indebtedness
existing on the Closing Date as set forth on Schedule 7.01 and
refinancings thereof;


 


(c)           Unrestricted
Intercompany Indebtedness;


 


(d)           Other
Intercompany Indebtedness; provided that, immediately after the
incurrence of each such Other Intercompany Indebtedness, the Other Intercompany
Basket Amount shall not exceed an amount equal to 20% of Consolidated Tangible
Net Worth;


 


(e)           Indebtedness
in an aggregate principal amount not in excess of 5% of Consolidated Tangible
Net Worth at any one time outstanding (i) in respect of Capital Leases; (ii) secured
by Liens on Property (including, in the event such Property constitutes capital
stock of a newly acquired Subsidiary of the Company, Liens on the Property of
such Subsidiary) acquired by the Company or any of its Subsidiaries after the
Closing Date; provided that such Liens are in existence on the date of
such acquisition and were not placed on such Property in contemplation of such
acquisition; and (iii) other purchase money Indebtedness, provided
that, in each case under this Section 7.01(e), the Lien securing
such Indebtedness is permitted by Section 7.02;


 


(f)            other
unsecured Indebtedness; provided, that (i) immediately before and
after giving effect to the incurrence thereof, no Default shall or would exist
and (ii) the Administrative Agent shall have received evidence reasonably
satisfactory to the Administrative Agent that the Company will be in pro forma
compliance with the covenants hereunder (giving effect to such other unsecured
Indebtedness), including, without limitation, the financial covenants set forth
in Section 6.11;


 


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(g)           Receivables
Indebtedness related to a Permitted Securitization;


 


(h)           the
Attributed Principal Amount in connection with any Permitted Securitization;


 


(i)            other
secured Indebtedness, provided, that (i) immediately before and
after giving effect to the incurrence thereof, no Default shall or would exist,
and (ii) the aggregate outstanding principal amount of all such
Indebtedness shall not exceed $15,000,000  at any time;


 


(j)            Indebtedness
incurred by the Company pursuant to the Subordinated Notes and by the
Subsidiaries of the Company pursuant to guarantees of the Subordinated Notes;
and


 


(k)           Indebtedness
of the Company pursuant to Swap Contracts entered into by the Company in the
ordinary course of business to hedge or mitigate risks to which the Company or
any Subsidiary is exposed in the conduct of its business or the management of
its liabilities and not for speculative purposes and Indebtedness incurred by
the Subsidiaries of the Company pursuant to guarantees of such Swap Contracts.


 


7.02        Liens.
Create, incur, assume or suffer to exist any Lien upon any of its Property,
whether now owned or hereafter acquired, or permit any of its Subsidiaries to
do so, except:


 


(a)           Liens for
Taxes in the ordinary course of business which are not delinquent or which are
being contested in accordance with Section 6.04; provided
that enforcement of such Liens is stayed pending such contest;


 


(b)           Liens in
connection with workers’ compensation, unemployment insurance or other social
security obligations (but not ERISA);


 


(c)           deposits
or pledges to secure bids, tenders, contracts (other than contracts for the
payment of Indebtedness), leases, statutory obligations, surety and appeal
bonds and other obligations of like nature arising in the ordinary course of
business;


 


(d)           zoning
ordinances, easements, rights of way, minor defects, irregularities, and other
similar restrictions affecting real Property which do not materially and
adversely affect the value of such real Property or materially impair its use
for the operation of the business of the Company or such Subsidiary;


 


(e)           Liens
arising by operation of law such as mechanics’, materialmen’s, carriers’,
warehousemen’s liens incurred in the ordinary course of business which are
being contested in accordance with Section 6.06;


 


(f)            Liens
arising out of judgments or decrees which are being contested in accordance
with Section 6.06; provided that enforcement of such Liens
is stayed pending such contest;


 


(g)           statutory
Liens in favor of lessors arising in connection with the Property leased to the
Company or any of its Subsidiaries;


 


(h)           Liens
under capital leases and Liens on Property (including, in the event such
Property constitutes capital stock of a newly acquired Subsidiary of the
Company, Liens on the 


 


93

















 


Property of such Subsidiary) acquired after the
Closing Date and either existing on such Property when acquired, or created
contemporaneously with such acquisition, to secure the payment or financing of
the purchase price thereof; provided that such Liens attach only to the
Property so purchased or acquired; and provided  further that the
Indebtedness secured by such Liens is permitted by Section 7.01(e);


 


(i)            [Intentionally
Left Blank];


 


(j)            Liens on
Property of the Company and its Subsidiaries existing on the Closing Date as
set forth on Schedule 7.02, as renewed from time to time, but not any
increases in the amounts secured thereby or extensions thereof to additional
Property;


 


(k)           Liens
securing Indebtedness permitted by Section 7.01(g);


 


(l)            Liens
securing Indebtedness permitted by Section 7.01(i); and


 


(m)          Liens on
property owned by any Foreign Subsidiary not otherwise permitted by this Section 7.02
so long as the aggregate outstanding principal amount of the Indebtedness
secured thereby does not exceed the Dollar Equivalent of $1,000,000  at any one time.


 


7.03        Mergers
and Consolidations. Consolidate or merge into or with any Person, or enter
into any binding agreement to do so which is not contingent on obtaining the
consent of the requisite Lenders, or permit any of its Subsidiaries to do so,
except:


 


(a)           provided
that, immediately before and after giving effect thereto, no Default shall
exist, (i) the Company may consolidate or merge with any direct or
indirect wholly owned Subsidiary thereof, provided that the Company shall be
the survivor and shall have assumed in a manner in all respects reasonably
satisfactory to the Administrative Agent all of such Subsidiary’s obligations
and liabilities under the Loans Documents to which such Subsidiary was party
immediately prior to such merger, in each case whether fixed, contingent, then
existing or thereafter arising, created, assumed, incurred or acquired, and
whether before or after the occurrence of any Event of Default under Section 8.01(g) or
(h); (ii) any Designated Borrower may consolidate or merge with any
direct or indirect wholly owned Subsidiary of the Company (other than a
Designated Borrower); provided that such Designated Borrower shall be
the survivor; and (iii) any Designated Borrower may consolidate or merge
with any other Designated Borrower which shall be organized under the laws of,
and have its principal office in, the same national jurisdiction as such
Designated Borrower; provided that the survivor shall have assumed in a
manner in all respects reasonably satisfactory to the Administrative Agent all
of the other entity’s obligations and liabilities under the Loans Documents, in
each case whether fixed, contingent, then existing or thereafter arising,
created, assumed, incurred or acquired, and whether before or after the
occurrence of any Event of Default under Section 8.01(g) or (h);
and


 


(b)           other
consolidations and mergers permitted by Sections 7.04(c), 7.04 (d),
7.04 (e), 7.05(c), 7.05 (d) and 7.05 (e).


 


7.04        Acquisitions.
Make any Acquisition or enter into any binding agreement to do so which is
not contingent on obtaining the consent of the requisite Lenders, or permit any
of its Subsidiaries to do so, except:


 


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(a)           Acquisitions
of Investments permitted by Section 7.06;


 


(b)           [Intentionally
Left Blank];


 


(c)           Unrestricted
Intercompany Acquisitions; provided that, in the event that any such
Unrestricted Intercompany Acquisition shall be effected by or through a
consolidation or merger involving the Company or any Designated Borrower, then
such consolidation or merger shall be otherwise permitted by Section 7.03(a);


 


(d)           Other
Intercompany Acquisitions; provided that (i) each such Other
Intercompany Acquisition shall be otherwise permitted by Section 7.10;
(ii) in the event that any such Other Intercompany Acquisition shall be
effected by or through a consolidation or merger involving the Company or any
Designated Borrower, then, in the case of the Company, the Company shall be the
survivor, and, in the case of such Designated Borrower, such Designated
Borrower shall be the survivor unless otherwise permitted by Section 7.03(a);
and (iii) to the extent that the aggregate consideration paid in
connection with any such Other Intercompany Acquisition shall be comprised of
one or more Investments, each such Investment shall be otherwise permitted by Section 7.06(g) or
7.06(h);


 


(e)           other
Acquisitions by the Company or any of its Subsidiaries; provided that (i) in
the event that any Operating Entity shall be acquired in connection with any
such Acquisition, then such Operating Entity shall be in, or otherwise
constitute, a line of business which is related or complementary to the line of
business of the Company and its Subsidiaries; (ii) in the event that any
such Acquisition shall be effected by or through a consolidation or merger
involving the Company or any Designated Borrower, then, in the case of the
Company, the Company shall be the survivor, and, in the case of such Designated
Borrower, such Designated Borrower shall be the survivor unless otherwise
permitted by Section 7.03(a); and (iii) immediately before and
after giving effect to each such Acquisition, no Default shall or would exist,
and all of the representations and warranties contained in Article V
shall be true and correct as if then made; and


 


(f)            Acquisitions
of Securitization Receivables by an Eligible Special Purpose Entity in a
Permitted Securitization.


 


7.05        Dispositions.
Make any Disposition, or permit any of its Subsidiaries to do so, except:


 


(a)           Dispositions
of any Investments permitted under Sections 7.06(a) and 7.06(c);


 


(b)           Dispositions
of Property which, in the reasonable opinion of the Company or such Subsidiary,
as the case may be, is obsolete or no longer useful in the conduct of it
business;


 


(c)           Unrestricted
Intercompany Dispositions; provided that, in the event that any such
Unrestricted Intercompany Disposition shall be effected by or through a
consolidation or merger involving the Company or any Designated Borrower, then,
in the case of the Company, the Company shall be the survivor, and, in the case
of such Designated Borrower, such Designated Borrower shall be the survivor
unless otherwise permitted by Section 7.03(a);


 


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(d)           Other
Intercompany Dispositions; provided that (i) each such Other
Intercompany Disposition shall be otherwise permitted by Section 7.10;
(ii) in the event that any such Other Intercompany Disposition shall be
effected by or through a consolidation or merger involving the Company or any
Designated Borrower, then, in the case of the Company, the Company shall be the
survivor, and, in the case of such Designated Borrower, such Designated
Borrower shall be the survivor unless otherwise permitted by Section 7.03(a);
and (iii) to the extent that the aggregate consideration paid in
connection with any such Other Intercompany Disposition shall be comprised of
one or more Investments, each such Investment shall be otherwise permitted by Section 7.06(g) or
7.06(h);


 


(e)           other
Dispositions; provided that, (i) in the event any such Disposition
shall be effected by or through a consolidation or merger involving the Company
or any Designated Borrower, then, in the case of the Company, the Company shall
be the survivor, and, in the case of such Designated Borrower, such Designated
Borrower shall be the survivor unless otherwise permitted by Section 7.03(a);
(ii) immediately before and after giving effect to each such Disposition,
no Default shall or would exist, and all of the representations and warranties
contained in Section 4 shall be true and correct as if then made; and (iii) immediately
after giving effect to each such Disposition, the aggregate fair market value
of the Property sold, assigned, transferred or otherwise disposed of in
connection with such Disposition, when aggregated with the aggregate fair
market value of all Property sold, assigned, transferred or otherwise disposed
of in connection with all other Dispositions made on and after the date hereof
under this Section 7.05(e), shall not exceed an amount equal to 10%
of Consolidated Tangible Net Worth; and


 


(f)            Dispositions
of Securitization Receivables to an Eligible Special Purpose Entity in a
Permitted Securitization.


 


7.06        Investments.
At any time, purchase or otherwise acquire, hold or invest in the Capital
Stock of, or any other interest in, any Person, or make any loan or advance to,
or enter into any arrangement for the purpose of providing funds or credit to,
or make any other investment, whether by way of capital contribution, time
deposit or otherwise, in or with any Person (all of which are sometimes
referred to herein as “Investments”), or permit any of its Subsidiaries
to do so, except:


 


(a)           Investments
in Cash Equivalents;


 


(b)           Investments
existing on the Closing Date as set forth on Schedule 7.06;


 


(c)           normal
business banking accounts and short-term certificates of deposit and time
deposits in, or issued by, federally insured institutions in amounts not
exceeding the limits of such insurance;


 


(d)           Acquisitions
permitted by Section 7.03 and 7.04;


 


(e)           Investments
in any seller debt incurred in connection with Dispositions permitted by Section 7.05;


 


(f)            Unrestricted
Intercompany Investments;


 


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(g)           Other
Intercompany Investments made on or after the date hereof (other than
Investments permitted by Section 7.06(b)); provided that,
immediately after giving effect to each such Other Intercompany Investment, the
Other Intercompany Basket Amount shall not exceed an amount equal to 20% of
Consolidated Tangible Net Worth;


 


(h)           other
Investments made on or after the date hereof (other than Investments permitted
by Section 7.06(b)); provided that, (i) immediately
before and after giving effect to each such other Investment, no Default shall
or would exist, and all of the representations and warranties contained in Article V
shall be true and correct as if then made, and (ii) the aggregate
consideration paid for all such other Investments shall not exceed $10,000,000;


 


(i)            Investments
in connection with a Permitted Securitization;


 


(j)            Investments
in Swap Contracts entered into by the Company in the ordinary course of
business to hedge or mitigate risks to which the Company or any Subsidiary is
exposed in the conduct of its business or the management of its liabilities and
not for speculative purposes; and


 


(k)           Restricted
Payments permitted by Section 7.07.


 


7.07        Restricted
Payments. Declare or make, directly or indirectly, (a) any regular,
quarterly cash dividend, consistent with past practices and which may be
increased from time to time, due to additional shares of Capital Stock and reasonable
increases in the amount of such dividend, consistent with past practices (for
purposes hereof, a “Regular Dividend”), or incur any obligation
(contingent or otherwise) to do so, unless, immediately before and after giving
effect to each such Regular Dividend, no Default shall or would exist under the
financial covenants set forth in Section 6.11, or (b) any
other Restricted Payment (excluding the Regular Dividend), or incur any
obligation (contingent or otherwise) to do so, unless, immediately before and
after giving effect to each such Restricted Payment, no Event of Default shall
or would exist.


 


7.08        Business
Changes. Except as may be otherwise permitted by Section 7.03
or 7.04, materially change the nature of the business of the Company and
its Subsidiaries as conducted on the Closing Date.


 


7.09        Amendments,
Etc. Enter into or agree to, or permit any of its Subsidiaries to do so,
any amendment, supplement, other modification or waiver of any term or
condition of its Organization Documents, unless, in each such case, such
amendment, supplement, other modification or waiver would not adversely affect
the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender.


 


7.10        Transaction
with Affiliates. Become, or permit any of its Subsidiaries to become, a
party to any transaction with any Affiliate thereof unless the terms and
conditions relating thereto are as favorable to the Company or such Subsidiary,
as the case may be, as those which would be obtainable at the time in a
comparable arms length transaction with a Person other than an Affiliate
thereof. Nothing herein shall be construed to prohibit a Permitted
Securitization.


 


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7.11        Limitation
on Upstream Payments by Subsidiaries.
Permit or cause any of its Subsidiaries to enter into or agree, or
otherwise be or become subject, to any agreement, contract or other arrangement
(other than, or in connection with, this Agreement and the Subordinated Notes
in effect as of the date hereof) with any Person pursuant to the terms of which
such Subsidiary is or would be prohibited from declaring or making, or
restricted in its ability to declare or make, any Restricted Payment or any
loan or advance to the Company or any other Subsidiary thereof or prohibited
from repaying, or restricted in its ability to repay, any loan or advance from
the Company or any other Subsidiary thereof. Nothing herein shall be construed
to prohibit such limitations on an Eligible Special Purpose Entity in
connection with a Permitted Securitization.


 


7.12        Prepayments
of Indebtedness. Prepay or obligate itself to prepay, in whole or in part,
any long-term Indebtedness (other than, or in connection with, Indebtedness
under the Loan Documents), or permit any of its Subsidiaries to do so, except
that the Company or any of its Subsidiaries may refinance any long-term
Indebtedness with any other long-term Indebtedness; provided that the
terms and conditions thereof shall, in the reasonable determination of the
Administrative Agent, be no less favorable to the Company or such Subsidiary,
as the case may be, as the long-term Indebtedness so being refinanced.


 


7.13        Limitation
on Negative Pledges. Enter into, or permit any of its Subsidiaries to enter
into, any agreement which prohibits or limits the ability of the Company or
such Subsidiary to create, incur, assume or suffer to exist any Lien in favor
of the Administrative Agent, the Lenders, the Swing Line Lender and/or the L/C
Issuer upon any of its Property, whether now owned or hereafter acquired, other
than (a) this Agreement or (b) any agreement in respect of
Indebtedness permitted by Section 7.01(e); provided that any
prohibition or limitation set forth in any agreement referred to in clause (b) of
this Section 7.13 shall be effective only with respect to the
assets financed pursuant to such agreement. Nothing herein shall be construed
to prohibit such limitations on an Eligible Special Purpose Entity in
connection with a Permitted Securitization.


 


7.14        Limitation
on Synthetic Leases. Create, incur, assume or suffer to exist any Synthetic
Lease, or permit any of its Subsidiaries to do so.


 


7.15        Limitation
on Securitization Transactions. Enter into any Securitization Transaction
or any amendment thereto which has the effect of increasing the Maximum
Purchase Amount thereunder, or permit any of its Subsidiaries to do so, except
Securitization Transactions in which the Company or a Subsidiary of the Company
is the Receivables Seller and with respect to which the Maximum Purchase Amount,
as of its most recent Test Date (the “Relevant Test Date”) when added to
the aggregate Maximum Purchase Amount of all other ongoing Securitization
Transactions entered into in accordance with this Section 7.15
(each valued as of its most recent Test Date), shall not exceed 10% of
Consolidated Total Assets as of the last day of the fiscal quarter of the
Company ended on or most recently prior to the Relevant Test Date, computed, in
the case of a Relevant Test Date which occurs on the last day of a fiscal quarter,
prior to giving effect to such new Securitization Transaction or such
amendment.


 


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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.
(i) The failure of any Borrower to make any payment of principal with
respect to any Loan when due and payable, or the failure of the Company to make
any payment with respect to any L/C Obligation when due and payable; or (ii) the
failure of any Loan Party to make any payment of interest, fees, expenses or
other amounts payable under any Loan Document or otherwise to the
Administrative Agent with respect to the loan facilities established hereunder
within three Business Days of the date when due and payable; or


 


(b)           Specific
Covenants. (i) The failure of any Loan Party to observe or perform any
covenant or agreement contained in Sections 6.03, 6.11, 6.12,
or Article VII (other than Sections 7.01, 7.02, 7.06
and 7.13); or (ii) the failure of any Loan Party to observe or
perform any term, covenant or agreement contained in Section 7.01, 7.02,
7.06 or 7.13 and such failure shall have continued unremedied for
a period of ten days after such Loan Party shall have become aware thereof; or


 


(c)           Other
Defaults. The failure of any Loan Party to observe or perform any other
term, covenant, or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document and such failure shall have continued unremedied
for a period of 30 days after such Loan Party shall have become aware thereof;
or


 


(d)           Representations
and Warranties. Any representation or warranty made or deemed made by any
Loan Party (or by an officer thereof on its behalf) in any Loan Document or in
any certificate, report, opinion (other than an opinion of counsel) or other
document delivered or to be delivered pursuant thereto, shall prove to have
been incorrect or misleading (whether because of misstatement or omission) in
any material respect when made or deemed made; or


 


(e)           Cross-Default.
(i)  Liabilities and/or other obligations of the Company (other than its
obligations hereunder) or any of its Subsidiaries, whether as principal,
guarantor, surety or other obligor, for the payment of any Indebtedness (other
than Indebtedness hereunder and Indebtedness under Swap Contracts) in an
aggregate amount in excess of $2,500,000  (A) shall
become or shall be declared to be due and payable prior to the expressed
maturity thereof, or (B) shall not be paid when due or within any grace
period for the payment thereof, or any holder of any such liability or other
obligation shall have the right to declare such liability or other obligation
due and payable prior to the expressed maturity thereof and the applicable
defaults or events of default giving rise to such right shall then be
continuing; 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 Company 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
Company or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Company or such Subsidiary as a
result thereof is greater than $2,500,000; or


 


99

















 


(f)            Insolvency
Proceedings, Etc. Any Loan Party  shall (i) make
an assignment for the benefit of creditors, (ii) generally not be paying
its debts as such debts become due, (iii) admit in writing its inability
to pay its debts as they become due, (iv) file a voluntary petition in
bankruptcy, (v) become insolvent (however such insolvency shall be
evidenced), (vi) file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment of debt, liquidation or
dissolution or similar relief under any present or future statute, law or
regulation of any jurisdiction, (vii) petition or apply to any tribunal
for any receiver, custodian or any trustee for any substantial part of its
Property, (viii) be the subject of any such proceeding filed against it
which remains undismissed for a period of 45 days, (ix) file any answer
admitting or not contesting the material allegations of any such petition filed
against it or any order, judgment or decree approving such petition in any such
proceeding, (x) seek, approve, consent to, or acquiesce in any such
proceeding, or in the appointment of any trustee, receiver, sequestrator,
custodian, liquidator, or fiscal agent for it, or any substantial part of its
Property, or an order is entered appointing any such trustee, receiver,
custodian, liquidator or fiscal agent and such order remains in effect for 45
days, or (xi) take any formal action for the purpose of effecting any of the
foregoing or looking to the liquidation or dissolution of such Loan Party
(except as may be otherwise expressly permitted herein); or


 


(g)           Inability
to Pay Debts; Attachment. An order for relief is entered under the United
States bankruptcy laws or any other decree or order is entered by a court
having jurisdiction (i) adjudging any Loan Party bankrupt or insolvent, (ii) approving
as properly filed a petition seeking reorganization, liquidation, arrangement,
adjustment or composition of or in respect of any Loan Party under the United
States bankruptcy laws or any other applicable Federal or state law, (iii) appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of any Loan Party or of any substantial part of the Property
thereof, or (iv) ordering the winding up or liquidation of the affairs of
any Loan Party, and, in each case, such other decree or order continues
unstayed and in effect for a period of 45 days; or


 


(h)           Judgments.
Judgments or decrees against the Company or any of its Subsidiaries aggregating
in excess of $2,500,000  shall remain
unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period
of 30 days; or


 


(i)            Change
of Control. The occurrence of a Change of Control; or


 


(j)            Invalidity
of Loan Documents. Any Loan Document shall cease, for any reason, to be in
full force and effect, or any Loan Party shall so assert in writing or shall
disavow any of its obligations thereunder, or any Event of Default shall have
occurred under, and as such term is defined in, any Loan Document; or


 


(k)           ERISA.
(i) any Termination Event shall occur; (ii) any Accumulated Funding
Deficiency, whether waived, shall exist with respect to any Pension Plan;
(iii) any Person shall engage in any Prohibited Transaction involving any
Employee Benefit Plan; (iv) the Company, any of its Subsidiaries or any
ERISA Affiliate shall fail to pay when due an amount which is payable by it to
the PBGC or to a Pension Plan under Title IV of ERISA; (v) the imposition
of any tax under Section 4980B(a) of the Code; (vi) the
assessment of a civil penalty with respect to any Employee Benefit Plan under
Section 502(c) of ERISA; or (vii) any other event or condition
shall occur or


 


100

















 


exist with respect to an Employee Benefit Plan which
in the case of clauses (i) through (vii) would,
individually or in the aggregate, have a Material Adverse Effect.


 


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


 


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


 


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


 


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


 


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


 


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


 


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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, L/C Borrowings and Obligations then owing under Secured Hedge
Agreements and Secured Cash Management Agreements, ratably among the Lenders,
the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to
the respective amounts described in this clause Fourth held by them


 


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


 


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


 


Subject to Section 2.03(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.


 


Notwithstanding
the foregoing, Obligations arising under Secured Cash Management Agreements and
Secured Hedge Agreements shall be excluded from the application described above
if the Administrative Agent has not received written notice thereof, together
with such supporting documentation as the Administrative Agent may request,
from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each
Cash Management Bank or Hedge Bank not a party to this Agreement that has given
the notice contemplated by the preceding sentence shall, by such notice, be
deemed to have acknowledged and accepted the appointment of the Administrative
Agent pursuant to the terms of Article IX hereof for itself and its
Affiliates as if a “Lender” party hereto.


 


ARTICLE IX.

ADMINISTRATIVE AGENT


 


9.01        Appointment
and Authority. Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America and Banc of America Securities Asia
Limited to act on its behalf as the applicable 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  no Borrower 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 


 


102

















 


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 Borrowers 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. The foregoing
provisions of this Section 9.02 shall likewise apply to the Person
serving as the Alternative Currency Funding Fronting Lender and the Singapore
Borrowing Funding Fronting Lender.


 


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


 


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


 


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


 


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


 


The Administrative Agent
shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the circumstances as
provided in Sections 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 Company, 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 by any other Person in or in
connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered by any other
Person hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance by any other Person 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 


 


103

















 


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 Company),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.


 


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


 


9.06        Resignation
of Administrative Agent. Either Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuer and the
Company. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, with the consent of the Company, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting
the qualifications set forth above; provided that if the Administrative
Agent shall notify the Company and the Lenders that no qualifying Person has
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 (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold
such collateral security until such time as a successor Administrative Agent is
appointed) 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 


 


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acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Administrative Agent, and the retiring Administrative Agent shall
be discharged from all of its duties and obligations hereunder or under the
other Loan Documents (if not already discharged therefrom as provided above in
this Section). The fees payable by the Company to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Company and such successor. After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 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.


 


Any
resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer, Swing Line Lender and
Alternative Currency Funding Fronting 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, Swing Line Lender and Alternative Currency Funding Fronting
Lender, (b) the retiring L/C
Issuer, Swing Line Lender and Alternative Currency Funding Fronting Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents, (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 arrangements 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 and (d) the successor Alternative Currency Funding
Fronting Lender shall make arrangements with the resigning Alternative Currency
Funding Fronting Lender for the funding of all outstanding Alternative Currency
Risk Participations.


 


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.


 


In the event of any dismissal or resignation by any other L/C Issuer,
any Letters of Credit issued by such retiring L/C Issuer shall remain
outstanding until termination pursuant to their terms and such retiring L/C
Issuer shall retain all the rights and obligations of the L/C Issuer hereunder
with respect to all such Letters of Credit 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)),
but excluding the right to consent to Eligible Assignees and the obligation to
issue new Letters of Credit.


 


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9.08        No
Other Duties, Etc. Anything herein to the contrary notwithstanding,
none of the Sole Book Manager, Sole Lead Arranger or Co-Syndication Agents
listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent, a Lender or
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 any 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 the Administrative Agent under Sections
2.03(i) 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 the L/C Issuer to
authorize the Administrative Agent to vote in respect of the claim of any
Lender or the L/C Issuer in any such proceeding.


 


9.10        Guaranty
Matters. Each Lender (including in its capacities as a
potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
reasonable discretion, to release any Subsidiary Guarantor from its obligations
under the Subsidiary Guaranty if such Person ceases to be a Subsidiary as a
result of a transaction permitted hereunder.


 


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Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent’s authority to release
any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty
pursuant to this Section 9.10.


 


9.11        Secured Cash Management Agreements and
Secured Hedge Agreements. Except as otherwise expressly set
forth herein or in any Guaranty, no Cash Management Bank or Hedge Bank that
obtains the benefits of Section 8.03 or any Guaranty by virtue of
the provisions hereof or of any Guaranty shall have any right to notice of any
action or to consent to, direct or object to any action hereunder or under any
other Loan Document other than in its capacity as a Lender and, in such case,
only to the extent expressly provided in the Loan Documents. Notwithstanding
any other provision of this Article IX to the contrary, the
Administrative Agent shall not be required to verify the payment of, or that
other satisfactory arrangements have been made with respect to, Obligations
arising under Secured Cash Management Agreements and Secured Hedge Agreements
unless the Administrative Agent has received written notice of such
Obligations, together with such supporting documentation as the Administrative
Agent may request, from the applicable Cash Management Bank or Hedge Bank, as
the case may be.


 


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
Company or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Company or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:


 


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


 


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


 


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


 


(d)           reduce the principal
of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or
(subject to clause (iv) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be
necessary (i) to amend the definition of “Default Rate” or to waive any
obligation of any Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would 


 


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be to reduce the rate of interest on any Loan or L/C
Borrowing or to reduce any fee payable hereunder;


 


(e)           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;


 


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


 


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


 


(h)           release the Company
from the Company Guaranty  or all or substantially all of the value of
the Subsidiary Guaranty without the written consent of each Lender, except to
the extent the release of any Subsidiary Guarantor is permitted pursuant to Section 9.10
(in which case such release may be made by the Administrative Agent acting
alone); or


 


(i)            amend, modify or waive any provision of this
Agreement or any other Loan Document affecting the rights or duties of the
Alternative Currency Funding Fronting Lender or the Singapore Borrowing Funding
Fronting Lender without, in each case, the written consent of the Alternative
Currency Funding Fronting Lender or the Singapore Borrowing Funding Fronting
Lender, as applicable, and each affected 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 Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.


 


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:


 


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(i)           if to a Borrower, the Administrative
Agent, the L/C Issuer, the Swing Line Lender, the Alternative Currency Funding
Fronting Lender or the Singapore
Borrowing Funding Fronting 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 and other
communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices and other communications 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 and other
communications 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 or unwilling to receive
notices under such Article by electronic communication. The Administrative
Agent or the Company 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 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)           The Platform.
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY
OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER 


 


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MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to any Borrower, any Lender, the L/C Issuer or
any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrower’s or
the Administrative Agent’s transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities
or expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to any Borrower, any Lender, the
L/C Issuer or any other Person for indirect, special, incidental, consequential
or punitive damages (as opposed to direct or actual damages).


 


(d)           Change of Address,
Etc. Each of the Borrowers, the Administrative Agent, the L/C Issuer, the
Swing Line Lender, the Alternative Currency Funding Fronting Lender and the Singapore Borrowing Funding Fronting Lender
may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Company, the Administrative
Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender
agrees to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire
instructions for such Lender. Furthermore, each Public Lender agrees to cause
at least one individual at or on behalf of such Public Lender to at all times
have selected the “Private Side Information” or similar designation on the
content declaration screen of the Platform in order to enable such Public
Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and
that may contain material non-public information with respect to any Borrower
or its securities for purposes of United States Federal or state securities
laws.


 


(e)           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)
believed in good faith to have been given by or on behalf of any Borrower even
if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Company shall indemnify
the Administrative Agent, the L/C Issuer, each Lender and the Related Parties
of each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice believed in good faith to have been
given by or on behalf of any Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.


 


10.03      No
Waiver; Cumulative Remedies; Enforcement. No failure by any
Lender 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 


 


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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.


 


Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not
prohibit (a) the Administrative Agent from exercising on its own behalf
the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan Documents, (b) the
L/C Issuer or the Swing Line Lender from exercising the rights and remedies
that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line
Lender, as the case may be) hereunder and under the other Loan Documents, (c) any
Lender from exercising setoff rights in accordance with Section 10.08
(subject to the terms of Section 2.13), or (d) any Lender form
filing proofs of claim or appearing and filing pleadings on its own behalf
during the pendency of a proceeding relative to any Loan Party under any Debtor
Relief Law; and provided, further, that if at any time there is
no Person acting as Administrative Agent hereunder and under the other Loan
Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b),  (c) and (d) of
the preceding proviso and subject to Section 2.13, any Lender may,
with the consent of the Required Lenders, enforce any rights and remedies
available to it and as authorized by the Required Lenders.


 


10.04      Expenses;
Indemnity; Damage Waiver.


 


(a)           Costs and
Expenses. The Company shall pay (i) all reasonable out of pocket
expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent in an amount not to exceed $50,000), 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 (which in the case of administration shall be expenses which are
consistent with practices and activities that are generally accepted and customary
for administrative agents in the syndicated loan market) or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out of pocket expenses incurred by the L/C Issuer in connection with
the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder and (iii) all out of pocket expenses
incurred by the Administrative Agent, the Alternative Currency Funding Fronting
Lender, the Singapore Borrowing Funding
Fronting Lender, 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 (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.


 


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(b)          Indemnification by the Company.  The Company 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
any 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, the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and
the other Loan Documents (including in respect of any matters addressed in Section 3.01),
(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 any Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to any 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 Company or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee or (y) result
from a claim brought by the Company 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 Company or such other 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 Company for any reason
fails to indefeasibly pay any amount required under subsection (a) or
(b) of this Section to be paid by it to the Administrative
Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any of
the foregoing, each Lender severally agrees to pay to the Administrative Agent
(or any such sub-agent), the L/C Issuer or such Related Party, as the case may
be, such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent) or the
L/C Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. 
The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).


 


(d)          Waiver of Consequential Damages,
Etc.  To the fullest extent permitted
by applicable law, no Borrower shall assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any
other 


 


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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 to such
unintended recipients by such Indemnitee 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
other than for direct or actual damages resulting from the gross negligence or
willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.


 


(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 L/C Issuer, the Swing
Line Lender, the
Alternative Currency Funding Fronting Lender and the Singapore Borrowing Funding Fronting Lender, 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 any
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 applicable Overnight Rate from time to time in effect,
in the Dollar Equivalent of the applicable currency of such recovery or
payment.  The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this
Agreement.


 


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 no Borrower  may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an 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 


 


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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 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), the Alternative Currency
Risk Participations, the Singapore Borrowing Risk Participations and
participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); provided that any such assignment shall be subject to the following
conditions:


 


(i)            Minimum
Amounts.


 


(A)         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, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


 


(B)          in
any case not described in subsection (b)(i)(A) of this Section, 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 Company
otherwise consents (each such consent not to be unreasonably withheld,
conditioned or delayed); provided, however, that concurrent
assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met.


 


(ii)           Proportionate
Amounts.  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 the Swing Line Lender’s rights and obligations in respect of Swing Line
Loans.


 


(iii)          Required
Consents.  No consent shall be
required for any assignment except to the extent required by subsection
(b)(i)(B) of this Section and, in addition:


 


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(A)          the
consent of the Company (such consent not to be unreasonably withheld,
conditioned or delayed) shall be required unless (1) an Event of Default
has occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;


 


(B)          the
consent of the Administrative Agent (such consent not to be unreasonably
withheld, conditioned or delayed) shall be required if such assignment is to a
Person that is not a Lender, an Affiliate of such Lender or an Approved Fund
with respect to such Lender;


 


(C)          the
consent of the L/C Issuer (such consent not to be unreasonably withheld,
conditioned or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters
of Credit (whether or not then outstanding);


 


(D)          the
consent of the Swing Line Lender (such consent not to be unreasonably withheld,
conditioned or delayed) shall be required for any assignment;


 


(E)           the
consent of each Alternative Currency Funding Lender (such consent not to be
unreasonably withheld, conditioned or delayed) shall be required if upon
effectiveness of the applicable assignment the proposed assignee would be an
Alternative Currency Participating Lender with respect to any Alternative
Currency; and


 


(F)           the
consent of each Singapore Borrowing Funding Lender (such consent not to be
unreasonably withheld, conditioned or delayed) shall be required if upon
effectiveness of the applicable assignment the proposed assignee would be a
Singapore Borrowing Participating Lender with respect to any Singapore Borrowing
Event.


 


(iv)          Assignment
and Assumption.  The parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the amount of
$3,500; provided, however, that the Administrative Agent may, in
its sole discretion, elect to waive such proceeding and recordation fee in the
case of any assignment.  The assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


 


(v)           No
Assignment to Company.  No such
assignment shall be made to the Company or any of the Company’s Affiliates or
Subsidiaries.


 


(vi)          No
Assignment to Natural Persons.  No
such assignment shall be made to a natural person.


 


(vii)         No Assignment Resulting in Additional
Indemnified Taxes.  No such assignment shall be made to any
Person that, through its Lending Offices, is not capable of lending the
applicable Alternative Currencies to the relevant Borrowers without the
imposition of any additional Indemnified Taxes.


 


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(viii)       Professional
Market Party.  Any such assignment shall be made to a Person
that is a Professional Market Party, for so long as it is a requirement
under Dutch law.


 


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, each
Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender upon the surrender and/or cancellation, if applicable and at the request
of the Company, of any Note previously executed and delivered to the assigning
Lender.  Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.


 


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


 


(d)          Participations.  Any Lender may at any time, without the
consent of, or notice to, any Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Company or any
of the Company’s Affiliates or Subsidiaries) (each, a “Participant”) in
all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s Alternative Currency Risk Participations, Singapore
Borrowing Risk Participations and its 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, (iii) the Borrowers, the Administrative Agent, the
Lenders and the L/C Issuer shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement, (iv) no sub-participations shall be permitted, and (v) neither
the granting nor the offering of such participation would require that any
additional loss, cost or expense be borne by any Borrower at any time or would
require any registration or qualification under any applicable federal or state
securities laws.


 


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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 clauses
(c) or (d) of the first proviso to Section 10.01
that affects such Participant.  Subject
to subsection (e) of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05  to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08  as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were
a Lender.


 


(e)           Limitations upon Participant
Rights.  A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04  than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Company’s prior
written consent.  In addition and without
limitation of the foregoing sentence, a Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Company is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as
though it were a Lender.


 


(f)           Certain Pledges.  Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note(s), 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)          Resignation as Alternative Currency
Funding Fronting Lender, Singapore Borrowing Funding Fronting Lender, L/C
Issuer or Swing Line Lender after Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitment
and Loans pursuant to subsection (b) above, Bank of America may, (i) upon
30 days’ notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) upon
30 days’ notice to the Company, resign as Swing Line Lender and/or (iii) in
the case of Bank of America and/or Bank of America, N.A. Singapore Branch, as
applicable, upon 30 days notice to the Company and the Lenders, resign as
Alternative Currency Funding Fronting Lender or Singapore Borrowing Funding
Fronting Lender.  In the event of any
such resignation as L/C Issuer, Swing Line Lender, Alternative Currency Funding
Fronting Lender or Singapore Borrowing Funding Fronting Lender, the Company
shall be entitled to appoint from among the Lenders a successor L/C Issuer,
Swing Line Lender, Alternative Currency Funding Fronting Lender or Singapore
Borrowing Funding Fronting Lender hereunder; provided, however,
that (x) no Lender shall have any duty to accept such appointment and (y) no
failure by the Company to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer, Swing Line Lender or Alternative
Currency Funding Fronting Lender, or Bank of America, N.A. Singapore Branch as
Singapore Borrowing Funding Fronting 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 


 


117

















 


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).  If the Alternative Currency Funding Fronting
Lender resigns as Alternative Currency Funding Fronting Lender, it shall retain
all the rights and obligations of the Alternative Currency Funding Fronting
Lender hereunder with respect to all Alternative Currency Risk Participations
outstanding as of the effective date of its resignation as the Alternative
Currency Funding Fronting Lender and all obligations of any Loan Party or any
other Lender with respect thereto (including the right to require Alternative
Currency Participating Lenders to fund any Alternative Currency Risk
Participations therein in the manner provided in Section 2.02(f)).  If the Singapore Borrowing Funding Fronting
Lender resigns as Singapore Borrowing Funding Fronting Lender, it shall retain
all the rights and obligations of the Singapore Borrowing Funding Fronting
Lender hereunder with respect to all Singapore Borrowing Risk Participations
outstanding as of the effective date of its resignation as the Singapore
Borrowing Funding Fronting Lender and all obligations of any Loan Party or any
other Lender with respect thereto (including the right to require Singapore
Borrowing Participating Lenders to fund any Singapore Borrowing Risk Participations
therein in the manner provided in Section 2.02(g)).  Upon the appointment of a successor L/C
Issuer and/or Swing Line Lender, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring
L/C Issuer or Swing Line Lender, as the case may be, and (b) 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
arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.


 


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 any Eligible Assignee invited to be a Lender pursuant to Section 2.15(c) or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to a Borrower and its obligations, (g) with the consent of the Company or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach by such Lender 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 Company.


 


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For purposes of this Section, “Information”
means all information received from the Company or any Subsidiary relating to
the Company 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 Company
or any Subsidiary, provided that, in the case of information received
from the Company 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.


 


Each of the Administrative Agent, the Lenders and the
L/C Issuer acknowledges that (a) the Information may include material
non-public information concerning any Borrower or a Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material
non-public information in accordance with applicable Law, including United
States Federal and state securities Laws.


 


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 any Borrower against any and all of the obligations of such Borrower
now or hereafter existing under this Agreement or any other Loan Document to
such Lender or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other
Loan Document and although such obligations of such Borrower may be contingent
or unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness.  The rights of each Lender,
the L/C Issuer and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that
such Lender, the L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to
notify the Company and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


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 Company.  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.


 


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10.10    Counterparts; Integration;
Effectiveness.  This Agreement and the other Loan
Documents 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 and the other Loan Documents 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 and any other Loan Document by telecopy or other
electronic imaging means shall be effective as delivery of a manually executed
counterpart of this Agreement and the other Loan Documents.


 


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 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 any Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender is a Defaulting Lender or if any other circumstance
exists hereunder that gives the Company the right to replace a Lender as a
party hereto, then
the Company may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 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 Company shall have paid (or
caused a Designated Borrower to pay) to the Administrative Agent the assignment
fee specified in Section 10.06(b);


 


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


 


(c)           in the case of any
such assignment resulting from a 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 Company to require such
assignment and delegation cease to apply.


 


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 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 ANY BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


 


(c)           WAIVER OF VENUE.  EACH BORROWER 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 


 


121

















 


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.


 


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


 


122

















 


against the Administrative
Agent and the Arranger with
respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.


 


10.17    Electronic
Execution of Assignments and Certain Other Documents.  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.


 


10.18    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 Borrowers that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of each Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.  Each Borrower shall, promptly following a
request by the Administrative Agent or any Lender, provide all documentation
and other information that the Administrative Agent or such Lender requests in
order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the
Act.


 


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


 


10.20    Professional
Market Party.  Each Lender hereunder hereby confirms that,
as of the date hereof, it is either (a) a Professional Market Party or (b) exempted
from the requirement to be a 


 


123

















 


Professional Market Party
because it forms a closed circle (besloten
kring), within the meaning of the Dutch Exemption Regulation, with
Valmont Holland.


 


[SIGNATURE PAGES FOLLOW]


 


124

















 


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


 


	
   

  	
  VALMONT INDUSTIRES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s

  	
  / Terry J. McClain

  
	
   

  	
  Name:

  	
  Terry J. McClain

  
	
   

  	
  Title:

  	
  Chief Financial Officer & Senior Vice

  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VALMONT INDUSTRIES HOLLAND BV

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s

  	
  / E. Robert Meaney

  
	
   

  	
  Name:

  	
  E. Robert Meaney

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VALMONT SINGAPORE PTE. LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s

  	
  / Terry J. McClain

  
	
   

  	
  Name:

  	
  Terry J. McClain

  
	
   

  	
  Title:

  	
  Director

  



 


Signature Page


 

















 


	
   

  	
  BANK OF AMERICA, N.A., as

  
	
   

  	
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Michael
  B. Delaney

  
	
   

  	
  Name:

  	
  Michael B. Delaney

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  BANC OF AMERICA SECURITIES ASIA 

  LIMITED, as Singapore Loan Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Susana
  Yen

  
	
   

  	
  Name:

  	
  Susana Yen

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  BANK OF AMERICA, N.A., as a Lender, L/C 

  Issuer, Swing Line Lender and Alternative 

  Currency Funding Fronting Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Michael
  B. Delaney

  
	
   

  	
  Name:

  	
  Michael B. Delaney

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  BANK OF AMERICA, N.A. SINGAPORE 

  BRANCH, as Singapore Borrowing Funding
  Fronting Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Arthur
  Hu

  
	
   

  	
  Name:

  	
  Arthur Hu

  
	
   

  	
  Title:

  	
  Country Portfolio Manager

  
	
   

  	
   

  	
  Bank of America, N.A.

  
	
   

  	
   

  	
  Singapore Branch

  



 


Signature Page


 

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Joseph
  T. Sullivan III

  
	
   

  	
  Name:

  	
  Joseph T. Sullivan III

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 
















 


	
   

  	
  WELLS FARGO BANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ryan K.
  Johnson

  
	
   

  	
  Name:

  	
  Ryan K. Johnson

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  COBANK, ACB

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ S.
  Richard Dill

  
	
   

  	
  Name:

  	
  S. Richard Dill

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian
  McDougal

  
	
   

  	
  Name:

  	
  Brian McDougal

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  THE NORTHERN TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gabrielle C. Stender

  
	
   

  	
  Name:

  	
  Gabrielle C. Stender

  
	
   

  	
  Title:

  	
  Officer

  



 


Signature Page


 

















 


	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Graeme
  Robertson

  
	
   

  	
  Name:

  	
  Graeme Robertson

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  COÖPERATIEVE CENTRALE RAIFFEISEN-

  BOERENLEENBANK B.A. “RABOBANK 

  NEDERLAND”, NEW YORK BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian
  Reece

  
	
   

  	
  Name:

  	
  Ian Reece

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew
  Sherman

  
	
   

  	
  Name:

  	
  Andrew Sherman

  
	
   

  	
  Title:

  	
  Executive Director

  



 


Signature Page


 

















 


	
   

  	
  UMB BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan D.
  Edwards

  
	
   

  	
  Name:

  	
  Bryan D. Edwards

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 
















 


SCHEDULE 1.01(A)


 


MANDATORY COST
FORMULAE


 


1.                                       The
Mandatory Cost (to the extent applicable) is an addition to the interest rate
to compensate Lenders for the cost of compliance with:


 


(a)                                  the
requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its
functions); or


 


(b)                                 the
requirements of the European Central Bank.


 


2.                                       On
the first day of each Interest Period (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional
Cost Rate”) for each Lender, in accordance with the paragraphs set out
below. The Mandatory Cost will be calculated by the Administrative Agent as a
weighted average of the Lenders’ Additional Cost Rates (weighted in proportion
to the percentage participation of each Lender in the relevant Loan) and will
be expressed as a percentage rate per annum. The Administrative Agent will, at
the request of the Company or any Lender, deliver to the Company or such Lender
as the case may be, a statement setting forth the calculation of any Mandatory
Cost.


 


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


 


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


 


(a)                                  in
relation to any Loan in Sterling:


 


	
   

  	
  AB+C(B-D)+E
  x 0.01

  	
   

  	
    per cent per annum

  
	
   

  	
  100 - (A+C)

  	
   

  



 


(b)                                 in
relation to any Loan in any currency other than Sterling:


 


	
   

  	
  E x 0.01

  	
   

  	
    per cent per annum

  
	
   

  	
  300

  	
   

  



 


1

















 


Where:


 


“A”                          is
the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as
an interest free cash ratio deposit with the Bank of England to comply with
cash ratio requirements.


 


“B”                            is
the percentage rate of interest (excluding the Applicable Rate, the Mandatory
Cost and any interest charged on overdue amounts pursuant to the first sentence
of Section 2.08(b) and, in the case of interest (other than on
overdue amounts) charged at the Default Rate, without counting any increase in
interest rate effected by the charging of the Default Rate) payable for the
relevant Interest Period of such Loan.


 


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


 


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


 


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


 


5.                                       For
the purposes of this Schedule:


 


(a)                                  “Eligible
Liabilities” and “Special Deposits” have the meanings given to them
from time to time under or pursuant to the Bank of England Act 1998 or (as may
be appropriate) by the Bank of England;


 


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


 


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


 


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


 


6.                                       In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5% will be
included in the formula as 5 and not as 0.05). A negative 


 


2

















 


result
obtained by subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.


 


7.                                       If
requested by the Administrative Agent or the Company, each Lender with a
Lending Office in the United Kingdom or a Participating Member State shall, as
soon as practicable after publication by the Financial Services Authority,
supply to the Administrative Agent and the Company, the rate of charge payable
by such Lender to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by such Lender as being the average of the Fee
Tariffs applicable to such Lender for that financial year) and expressed in
pounds per £1,000,000 of the Tariff Base of such Lender.


 


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


 


(a)                                  the
jurisdiction of the Lending Office out of which it is making available its
participation in the relevant Loan; and


 


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


 


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


 


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


 


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


 


11.                                 The
Administrative Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the Additional Cost
Rate for each Lender based on the information provided by each Lender pursuant
to paragraphs 3, 7 and 8 above.


 


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


 


3

















 


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


 


4

















 


SCHEDULE 1.01(B)


 


EXISTING LETTERS OF
CREDIT


 


	
  Issuer

  	
   

  	
  Applicant

  	
   

  	
  Beneficiary

  	
   

  	
  Amount

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  Valmont Monterrey, S. DE R.L. DE CV  

  Carretera A Laredo KM. 21
  
 Apodace, N.L. 66600, Mexico

  	
   

  	
  Daewoo International  Corporation  
 Namdaemunno No 5-GA  
 Seoul South Korea

  	
   

  	
  $

  	
  1,255,000.00

  	
   

  
									



 


1

















 


SCHEDULE 2.01


 


COMMITMENTS 

AND APPLICABLE PERCENTAGES


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Applicable

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of
  America, N.A.

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  21.428571428

  	
  %

  
	
  U.S. Bank
  National Association

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  17.857142857

  	
  %

  
	
  Wells Fargo
  Bank, N.A.

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  17.857142857

  	
  %

  
	
  CoBank, ACB

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  8.928571429

  	
  %

  
	
  JPMorgan
  Chase Bank N.A.

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  8.928571429

  	
  %

  
	
  The Northern
  Trust Company

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  8.928571429

  	
  %

  
	
  HSBC Bank
  USA, National Association

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  5.357142857

  	
  %

  
	
  Cooperatieve
  Centrale Raiffeisen Boerenleenbank, B.A. “Rabobank Nederland”, New York
  Branch

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  5.357142857

  	
  %

  
	
  UMB Bank,
  n.a.

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  5.357142857

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  280,000,000

  	
   

  	
  100.000000000

  	
  %

  



 


1

















 


SCHEDULE 5.01


 


SUBSIDIARIES
OF VALMONT INDUSTRIES, INC.


 


	
  Name of Subsidiary

  	
   

  	
  State or

  Country

  of

  Incorporation

  	
   

  	
  Ownership

  Percentage

  	
   

  
	
  Best-All
  Electric, Inc.

  	
   

  	
  Nebraska

  	
   

  	
  100

  	
  %

  
	
  Cascade
  Earth Sciences, Ltd.

  	
   

  	
  Oregon

  	
   

  	
  100

  	
  %

  
	
  Dreamwise
  Props 32 (Proprietary) Limited

  	
   

  	
  South Africa

  	
   

  	
  100

  	
  %

  
	
  George
  Industries, Inc.

  	
   

  	
  California

  	
   

  	
  100

  	
  %

  
	
  Golden State
  Irrigation, Inc.

  	
   

  	
  California

  	
   

  	
  100

  	
  %

  
	
  Lampadaires
  Feralux, Inc.

  	
   

  	
  Canada

  	
   

  	
  100

  	
  %

  
	
  NeuValco GmbH

  	
   

  	
  Germany

  	
   

  	
  100

  	
  %

  
	
  Matco
  Services, Inc.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  Valmont-Mitas
  Poligon Demir Celik Endustri Anonim Sirketi

  	
   

  	
  Turkey

  	
   

  	
  51

  	
  %

  
	
  PiRod, Inc.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  Powco Inc.

  	
   

  	
  Canada

  	
   

  	
  70

  	
  %

  
	
  Tehomet Oy

  	
   

  	
  Finland

  	
   

  	
  100

  	
  %

  
	
  Tehomet
  Baltic Ou

  	
   

  	
  Estonia

  	
   

  	
  100

  	
  %

  
	
  Valley
  Irrigation South Africa,(PTY) Ltd.

  	
   

  	
  South Africa

  	
   

  	
  60

  	
  %

  
	
  Valmont
  Australia Pty. Ltd.

  	
   

  	
  Australia

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Coatings, Inc.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  Valmont
  France S.A.S.

  	
   

  	
  France

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Monterrey S. de R.L. de C.V.

  	
   

  	
  Mexico

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Iberica S.A.

  	
   

  	
  Spain

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Industria e Comercio, Ltda.

  	
   

  	
  Brazil

  	
   

  	
  90

  	
  %

  
	
  Valmont
  Industries (China) Co.,Ltd.

  	
   

  	
  China

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Industries (Guangdong), Ltd.

  	
   

  	
  China

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Industries (Shandong), Ltd.

  	
   

  	
  China

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Industries de Argentina S.A.

  	
   

  	
  Argentina

  	
   

  	
  99

  	
  %

  
	
  Valmont
  Industries Holland B.V.

  	
   

  	
  The Netherlands

  	
   

  	
  100

  	
  %

  
	
  Valmont
  International, L.L.C.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  Valmont
  International Corp.

  	
   

  	
  Texas

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Investimentos Ltda.

  	
   

  	
  Brazil

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Mastbau, GmbH & Co., KG

  	
   

  	
  Germany

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Mastbau Verwaltung

  	
   

  	
  Germany

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Middle East FZE

  	
   

  	
  United Arab Emirates

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Nederland B.V.

  	
   

  	
  The Netherlands

  	
   

  	
  100

  	
  %

  



 


1

















 


	
  Valmont
  Newmark, Inc.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Northwest, Inc.

  	
   

  	
  Nebraska

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Polska Sp.z o.o

  	
   

  	
  Poland

  	
   

  	
  70

  	
  %

  
	
  Valmont S.A.

  	
   

  	
  Spain

  	
   

  	
  100

  	
  %

  
	
  Valmont Sarl

  	
   

  	
  Morocco

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Service Centers, Inc.

  	
   

  	
  Nebraska

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Singapore Pte. Ltd.

  	
   

  	
  Singapore

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Structures, Inc.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  Valmont
  Structures Private Limited

  	
   

  	
  India

  	
   

  	
  100

  	
  %

  
	
  Valmont (UK)
  Limited

  	
   

  	
  United Kingdom

  	
   

  	
  100

  	
  %

  
	
  Valmont Wind
  Energy, Inc.

  	
   

  	
  Delaware

  	
   

  	
  100

  	
  %

  
	
  West Coast
  Engineering Group, Ltd

  	
   

  	
  Canada

  	
   

  	
  70

  	
  %

  
	
  W.J.
  Whatley, Inc.

  	
   

  	
  Colorado

  	
   

  	
  100

  	
  %

  



 






*Stock options and restricted stock have been granted by the Company
(and are currently outstanding) pursuant to shareholder approved stock plans.


 


2

















 


SCHEDULE 5.05


 


LITIGATION


 


None.


 


1
















 


SCHEDULE 5.19


 


INDENTIFICATION NUMBERS FOR DESIGNATED
BORROWERS THAT ARE FOREIGN SUBSIDIARIES


 


Valmont Industries Holland
BV:  17072821


 


Valmont Singapore
Pte. Ltd.:  200410728E


 


1

















 


SCHEDULE 7.01


 


EXISTING
INDEBTEDNESS


 


	
  Long-Term

  	
   

  	
   

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Senior Subordinated Notes

  	
   

  	
  Fixed Rate Term

  	
   

  	
  $

  	
  150,000,000

  	
   

  
	
  Bank Syndicate

  	
   

  	
  Revolving Credit Facility

  	
   

  	
  $

  	
  42,182,863

  	
   

  
	
  Bank Syndicate

  	
   

  	
  Variable Rate Term

  	
   

  	
  $

  	
  28,317,308

  	
   

  
	
  Marion County, TN

  	
   

  	
  Industrial Revenue Bond

  	
   

  	
  $

  	
  8,500,000

  	
   

  
	
  Wells Fargo

  	
   

  	
  Aircraft Lease

  	
   

  	
  $

  	
  7,561,105

  	
   

  
	
  West Coast
  Engineering (Canada)

  	
   

  	
  Variable Rate Term

  	
   

  	
  $

  	
  3,052,818

  	
   

  
	
  Farmington, MN

  	
   

  	
  Industrial Revenue Bond

  	
   

  	
  $

  	
  1,573,467

  	
   

  
	
  Tehomet

  	
   

  	
  Variable Rate Term

  	
   

  	
  $

  	
  1,913,924

  	
   

  
	
  Miscellaneous

  	
   

  	
   

  	
   

  	
  $

  	
  127,455

  	
   

  
	
  Total Long-Term Debt

  	
   

  	
   

  	
   

  	
  $

  	
  243,228,940

  	
   

  



 


	
  Short-Term

  	
   

  	
   

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Domestic:

  	
   

  	
   

  	
   

  	
  $

  	
  0

  	
   

  
	
  Foreign:

  	
   

  	
  Sermeto (France)

  	
   

  	
  $

  	
  6,161,391

  	
   

  
	
   

  	
   

  	
  Valmont Shanghai (China)

  	
   

  	
  $

  	
  10,185,818

  	
   

  
	
   

  	
   

  	
  West Coast Engineering (Canada)

  	
   

  	
  $

  	
  4,241,130

  	
   

  
	
  Total Short-Term Debt

  	
   

  	
   

  	
   

  	
  $

  	
  20,588,339

  	
   

  



 


1

















 


SCHEDULE 7.02


 


EXISTING LIENS


 


	
  Debtor

  	
   

  	
  Secured Party

  	
   

  	
  Filing Information

  	
   

  	
  Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1. Valmont
  Industries, Inc. 

   

  Valmont
  Coatings / Pacific States Galvanizing

  	
   

  	
  Dooling
  Lease Management Corporation

  	
   

  	
  Delaware SOS

  FS# 3292342 6

  Filed: 11/3/03

  	
   

  	
  One Daewoo
  Forklift

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2. Valmont
  Industries, Inc.

  	
   

  	
  Les Schwab
  Tire Centers of Utah, Inc.

  	
   

  	
  Delaware SOS

  FS# 4097689 6

  Filed: 4/7/04

  	
   

  	
  All present
  and future products and goods purchased from Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3. Valmont
  Industries, Inc. 

   

  Valmont
  Coatings / Pacific States Galvanizing

  	
   

  	
  Dooling
  Lease Management Corporation 

   

  Umpqua Bank

  	
   

  	
  Delaware SOS

  FS# 4103056 0

  Filed: 3/30/04

  	
   

  	
  One Daewoo
  Forklift

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4. Valmont
  Industries, Inc. 

   

  Valmont
  Coatings / Pacific States Galvanizing

  	
   

  	
  Dooling
  Lease Management Corporation 

   

  Umpqua Bank

  	
   

  	
  Delaware SOS

  FS# 4130383 5

  Filed: 4/22/04

  	
   

  	
  Two Daewoo
  Lift Trucks

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5. Valmont
  Industries, Inc.

  	
   

  	
  Crown Credit
  Company

  	
   

  	
  Delaware SOS

  FS# 5301613 7

  Filed: 9/29/05

  	
   

  	
  One Crown
  Lift Truck, including battery and charger

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6. Valmont
  Industries, Inc.

  	
   

  	
  CitiCapital
  Commercial Leasing Corporation

  	
   

  	
  Delaware SOS

  FS# 6121408 9

  Filed: 4/11/06

  	
   

  	
  One Komatsu
  Forklift

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7. Valmont
  Industries, Inc.

  	
   

  	
  FCC
  Equipment Financing, Inc.

  	
   

  	
  Delaware SOS

  FS# 6332635 2

  Filed: 9/26/06

  	
   

  	
  Four Taylor
  Lift Trucks

  



 


1

















 


	
  8. Valmont
  Industries, Inc.

  	
   

  	
  General
  Electric Capital Corporation

  	
   

  	
  Delaware SOS

  FS# 2007 0602366

  Filed: 2/15/07

  	
   

  	
  All
  equipment leased to or financed for the Debtor by the Secured Party pursuant
  to Master Lease Agreement No. 4078031-002

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9. Valmont
  Industries, Inc.

  	
   

  	
  Air Liquide
  Industrial US LP

  	
   

  	
  Delaware SOS

  FS# 2008 1940988

  Filed: 6/6/08

  	
   

  	
  Two
  Rosemount Transmitters

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10. Valmont
  Industries, Inc.

  	
   

  	
  De Lage
  Landen Financial Services, Inc.

  	
   

  	
  Delaware SOS

  FS# 2008 3303748

  Filed: 9/23/08

  	
   

  	
  All
  equipment leased to or financed for the Debtor by the Secured Party pursuant
  to Contract No. 24931827

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11. Valmont
  Industries, Inc.

  	
   

  	
  City of West
  Point, NE

  	
   

  	
  Cuming
  County, NE

  	
   

  	
  15-ton
  electric overhead traveling cranes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12. Valmont
  Industries, Inc

  	
   

  	
  City of
  McCook, NE

  	
   

  	
  Red Willow
  County, NE

  	
   

  	
  Pipe and
  tube mill and associated machinery and equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13. Valmont
  Industries, Inc.

  	
   

  	
  I.T.E.C.
  Properties

  	
   

  	
  Douglas
  County, NE

  	
   

  	
  Office
  Building One Valmont Plaza Omaha, NE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14. Valmont
  Industries, Inc.

  	
   

  	
  Entrecap
  Single Investor LLC 

   

  Wells Fargo
  Northwest Bank, N.A.

   

  Financing Statement
  filed in name of The Fifth Third Leasing Company

  	
   

  	
  Delaware SOS

  FS# 6440574 2

  Filed: 12/15/06

  	
   

  	
  One Canadair
  Ltd. CL-600-2B16 aircraft (Serial No. 5349), together with two General
  Electric CF34-3B aircraft engines and other related parts and equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15. Valmont
  Coatings, Inc.

  	
   

  	
  Bank of
  America, N.A., as Collateral Agent

  	
   

  	
  Delaware SOS

  FS# 5147385 0

  Filed: 5/12/05

  	
   

  	
  All applied
  coatings and fabricated extrusions located at 2411 Pilot Knob Rd., Mendota
  Heights, MN

  



 


2

















 


	
  16. Cascade
  Earth Sciences, Ltd.

  	
   

  	
  First Sierra
  Financial, Inc.

  	
   

  	
  Oregon SOS

  FS# 448968

  Filed: 12/7/98

  (continued 11/28/03)

  	
   

  	
  Certain
  listed computer hardware and related equipment located in Albany, OR, Boise,
  ID, LaGrande, OR, Medford, OR, Chubbuck, ID, Portland, OR and Spokane, WA

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  17. Valmont
  Northwest, Inc.

  	
   

  	
  Les Schwab
  Warehouse Center, Inc.

  	
   

  	
  Nebraska SOS

  FS# 9806298305-1

  Filed: 6/20/06

  	
   

  	
  All present
  and future products and goods purchased from Secured Party

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  18. Golden
  State Irrigation Services, Inc.

  	
   

  	
  Valmont
  Industries, Inc.

  	
   

  	
  California
  SOS

  FS# 90150097

  Filed: 6/13/90

  (continued 5/31/95; 6/12/00; 5/6/05)

  	
   

  	
  Certain
  irrigation systems and related machinery and goods purchased from Valmont
  Industries

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  19. Golden State
  Irrigation Services, Inc.

  	
   

  	
  Bobcat
  Financial Services

  	
   

  	
  California
  SOS

  FS# 0223460126

  Filed: 8/21/02

  (continued 2/23/07)

  	
   

  	
  One Bobcat
  Versahandler

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  20. Golden
  State Irrigation Services, Inc.

  	
   

  	
  Deere &
  Company

  	
   

  	
  California
  SOS

  FS# 08-7151485453

  Filed: 3/24/08

  	
   

  	
  One John
  Deere 6201 Gator and all accounts, general intangibles, contract rights and
  chattel paper relating thereto

  



 


3

















 


SCHEDULE 7.06


 


EXISTING INVESTMENTS


 


Valmont Industries, Inc.


Investment in Nonconsolidated
Subs - Corporate


Account #15700-0000


For the year ending December 27,
2008


As
of the Closing Date


 


	
  Irri
  Management guarantee

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Morocco

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Teeter
  Irrigation - Service Centers

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Suntime -
  China

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Irri
  Management - Argentina

  	
   

  	
   

  	
   

  



 


1
















 


SCHEDULE 10.02


 


ADMINISTRATIVE AGENT’S OFFICE;


CERTAIN ADDRESSES FOR NOTICES


 


COMPANY


and
DESIGNATED BORROWERS:


 


VALMONT
INDUSTRIES, INC.


Address:  One Valmont Plaza


Omaha, NE 68154


Attention:  Gary Lebens


Telephone:  (402) 963-1156


Telecopier:  (402) 963-1198


Electronic Mail:  glebens@valmont.com


Website Address:  www.valmont.com


U.S. Taxpayer Identification
Number(s):  47-0351813


 


VALMONT
INDUSTRIES HOLLAND BV


Address: One Valmont Plaza


Omaha, NE 68154


Attention:  Gary Lebens


Telephone:  (402) 963-1156


Telecopier:  (402) 963-1198


Electronic Mail:  glebens@valmont.com


Website Address:  www.valmont.com


 


VALMONT
INDUSTRIES SINGAPORE PTE. LTD.


Address:  One Valmont Plaza


Omaha, NE 68154


Attention:  Gary Lebens


Telephone:  (402) 963-1156


Telecopier:  (402) 963-1198


Electronic Mail:  glebens@valmont.com


Website Address:  www.valmont.com


 


1

















 


ADMINISTRATIVE
AGENT:


 


Administrative
Agent’s Office


 


(for
payments and Requests for Credit Extensions):


 


Bank of America, N.A.


901 Main Street


Mail Code:  TX 1-492-14-11


Dallas, TX 75202


Attention:  Mary Porter


Telephone:  (214) 209-9192


Telecopier:  (214) 290-9674


Electronic Mail:  mary.h.porter@bankofamerica.com


 


2

















 


Other Notices
as Administrative Agent:


 


Bank of America, N.A.


Agency Management


335 Madison Avenue


Mail Code:   NY1-503-04-03


New York, NY 10017


Attention:  Steven Gazzillo


Telephone:  (212) 503-8328


Telecopier:  (212) 901-7842


Electronic Mail:  steven.gazzillo@bankofamerica.com


 


Banc of America Securities Asia
Limited


979 King’s Road, Level 14,
Devon House


Quarry Bay, Hong Kong


Attention:  Susana Yen/Wynnie Lam


Telephone:  (852) 2597-3428/3430


Telecopier:  (852) 2597-3424


	
  Electronic
  Mail: 

  	
  susana.ls.chan_yen@bankofamerica.com

  
	
   

  	
  wynnie.wy.lam@bankofamerica.com

  



 


L/C
ISSUER:


Bank of America, N.A.


Trade Operations


1 Fleet Way


Mail Code:  PA6-580-02-30


Scranton, PA 18507


Attention:  John Yzeik


Telephone:  (570) 330-4315


Telecopier:  (570) 330-4186


Electronic Mail:  john.p.yzeik@bankofamerica.com


 


3

















 


SWING LINE
LENDER:


 


Bank of America, N.A.


901 Main Street


Mail Code:  TX1-492-14-11


Dallas, TX 75202


Attention:  Mary Porter


Telephone:  (214) 209-9192


Telecopier:  (214) 290-9674


Electronic Mail:  mary.h.porter@bankofamerica.com


 


4

















 


SINGAPORE
LOAN AGENT:


 


Singapore
Loan Agent’s Office


 


(for
payments and Requests for Credit Extensions):


 


Banc of America Securities Asia
Limited


Level 14 Devon House


Quarry Bay, Hong Kong


Attention:  Susana Yen/Gail Zhao


Telephone:  (852) 2597-3428/2597-3426


Telecopier:  (852) 2597-3424/3425


	
  Electronic
  Mail: 

  	
  Susana.ls.chan_yen@bankofamerica.com

  
	
   

  	
  Gail.zhao@bankofamerica.com

  



 


5

















 


SINGAPORE BORROWING FUNDING


FRONTING LENDER:


 


Bank
of America, N.A. Singapore Branch


Republic Plaza
Tower 1 Ste#18-00


9 Raffles Place


Singapore 048619


Attention:  Cheng-Bee Tan/Kia-Wee Seng


Telephone:  65-6239-3119/65-6239-3435


Telecopier:  65/6239-3035/65-6239-3137


Electronic
Mail: 
Cheng-bee.tan@bankofamerica.com/kia-wee.sng@bankofamerica.com


 


6

















 


EXHIBIT A


 


FORM OF COMMITTED LOAN NOTICE


 


Date: 
                      ,    


 


To:                              Bank
of America, N.A., as Administrative Agent

Banc of America Securities Asia Limited, as Singapore Loan Agent(1)


 


Ladies and Gentlemen:


 


Reference is made to that
certain Credit Agreement, dated as of October 16, 2008 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among Valmont
Industries, Inc., a Delaware corporation (the “Company”), the
Designated Borrowers from time to time party thereto, the Lenders from time to
time party thereto, Banc of America Securities Asia Limited, as Singapore Loan
Agent, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing
Line Lender.


 


The Company hereby
requests, on behalf of itself or, if applicable, the Designated Borrower
referenced in item 6 below (the “Applicable Designated Borrower”) (select one):


 


	
   ̈  A
  Borrowing of Committed Loans                           ̈
  A conversion or continuation of Loans

  
	
   

  
	
  1.

  	
   

  	
  On
                                                    
  (a Business Day).

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  In the amount of
                                .

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Comprised of
                                                              .

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [Type of Committed Loan requested]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  In the following currency:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  For Eurocurrency Rate Loans: with an
  Interest Period of
                      
  months.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  On behalf of
                                                          
  [insert name of applicable Designated Borrower].

  
						



 






(1) Committed Loan Notice to be delivered to Singapore Loan Agent, as
applicable, pursuant to Section 2.02 of the Agreement.


 


A-1

















 


The Committed Borrowing,
if any, requested herein complies with the provisos to the first sentence of Section 2.01
of the Agreement.


 


	
   

  	
  VALMONT INDUSTRIES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


A-2

















 


EXHIBIT B


 


FORM OF SWING LINE LOAN NOTICE


 


Date: 
                      ,


 


	
  To:

  	
   

  	
  Bank of America, N.A.,
  as Swing Line Lender

  
	
   

  	
   

  	
  Bank of America, N.A.,
  as Administrative Agent

  



 


Ladies and Gentlemen:


 


Reference is made to that
certain Credit Agreement, dated as of October 16, 2008  (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used
herein as therein defined), among Valmont Industries, Inc., a Delaware
corporation  (the “Company”), the
Designated Borrowers from time to time party thereto, the Lenders from time to
time party thereto, Banc of America Securities Asia Limited, as Singapore Loan
Agent, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing
Line Lender.


 


The undersigned hereby
requests a Swing Line Loan:


 


1.             On                                                   
(a Business Day).


 


2.             In the amount of
$                              .


 


The Swing Line Borrowing
requested herein complies with the requirements of the provisos to the first
sentence of Section 2.04(a) of the Agreement.


 


	
   

  	
  VALMONT INDUSTRIES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


B-1
















 


EXHIBIT C


 


FORM OF
NOTE


 


                       ,                 


 


FOR VALUE RECEIVED, the undersigned (the “Borrower”)
hereby promises to pay to
                                          
or registered assigns (the “Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each Loan
from time to time made by the Lender to the Borrower under that certain Credit
Agreement, dated as of October 16, 2008 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among Valmont
Industries, Inc., the Designated Borrowers from time to time party
thereto, the Lenders from time to time party thereto, Banc of America
Securities Asia Limited, as Singapore Loan Agent, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.


 


The Borrower promises to pay interest on the unpaid
principal amount of each Loan from the date of such Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in
the Agreement.  Except as otherwise
provided in Section 2.04(f) of the Agreement with respect to
Swing Line Loans, all payments of principal and interest shall be made to the
applicable Administrative Agent for the account of the Lender in the currency
in which such Committed Loan was denominated and in Same Day Funds at the
Administrative Agent’s Office for such currency.  If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.


 


This Note is one of the Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or
in part subject to the terms and conditions provided therein.  This Note is also entitled to the benefits of
the [Company Guaranty] [Subsidiary Guaranty].  Upon the occurrence and
continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the
Agreement.  Loans made by the Lender
shall be evidenced by one or more loan accounts or records maintained by the
Lender in the ordinary course of business. The Lender may also attach schedules
to this Note and endorse thereon the date, amount, currency and maturity of its
Loans and payments with respect thereto.


 


The Borrower, for itself, its successors and assigns,
hereby waives diligence, presentment, protest and demand and notice of protest,
demand, dishonor and non-payment of this Note.


 


THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


C-1

















 


	
   

  	
  [VALMONT
  INDUSTRIES, INC.]

  
	
   

  	
  [OR]

  
	
   

  	
  [APPLICABLE
  DESIGNATED BORROWER]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


C-2

















 


LOANS AND
PAYMENTS WITH RESPECT THERETO


 


	
  Date

  	
   

  	
  Type of

  Loan

  Made

  	
   

  	
  Currency

  and

  Amount of

  Loan

  Made

  	
   

  	
  End of

  Interest

  Period

  	
   

  	
  Amount of

  Principal

  or Interest

  Paid This

  Date

  	
   

  	
  Outstanding

  Principal

  Balance

  This Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


C-3

















 


EXHIBIT D


 


FORM OF
COMPLIANCE CERTIFICATE


 


Financial Statement Date: 
                              ,                      


 


To:          Bank
of America, N.A., as Administrative Agent


 


Ladies and Gentlemen:


 


Reference is made to that certain Credit Agreement,
dated as of October 16, 2008 (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the “Agreement;” the
terms defined therein being used herein as therein defined), among Valmont
Industries, Inc., a Delaware corporation  (the
“Company”), the Designated Borrowers from time to time party thereto,
the Lenders from time to time party thereto, Banc of America Securities Asia
Limited, as Singapore Loan Agent, and Bank of America, N.A., as Administrative
Agent, L/C Issuer and Swing Line Lender.


 


The undersigned Responsible Officer hereby certifies
as of the date hereof that he/she is the
                                                                                                   
of the Company, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Company, and
that:


 


[Use following paragraph 1
for fiscal year-end financial statements]


 


1.             The
Company has delivered the year-end audited financial statements required by Section 6.01(b) of
the Agreement for the fiscal year of the Company ended as of the above date,
together with the report and opinion of an independent certified public
accountant required by such section.


 


[Use following paragraph 1
for fiscal quarter-end financial statements]


 


1.             The
Company has delivered the unaudited financial statements required by Section 6.01(c) of
the Agreement for the fiscal quarter of the Company ended as of the above
date.  Such financial statements fairly
present the financial condition, results of operations and cash flows of the
Company and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence
of footnotes.


 


2.             The
undersigned has reviewed and is familiar with the terms of the Agreement and
has made, or has caused to be made under his/her supervision, a detailed review
of the transactions and condition (financial or otherwise) of the Company
during the accounting period covered by such financial statements.


 


3.             A
review of the activities of the Company during such fiscal period has been made
under the supervision of the undersigned with a view to determining whether
during such fiscal period the Company performed and observed all its
Obligations under the Loan Documents, and


 


D-1

















 


[select one:]


 


[to the best knowledge of the undersigned, during
such fiscal period, the Company performed and observed each covenant and
condition of the Loan Documents applicable to it, and no Default has occurred
and is continuing.]


 


—or—


 


[to the best knowledge of the undersigned, during
such fiscal period, the following covenants or conditions have not been
performed or observed and the following is a list of each such Default and its
nature and status:]


 


4.             The
representations and warranties of (i) the Borrowers contained in Article V
of the Agreement and (ii) each Loan Party contained in each other Loan
Document or in any document furnished at any time under or in connection with
the Loan Documents, are true and correct on and as of the date hereof, except
to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Compliance Certificate, the representations
and warranties contained in Section 5.13 of the Agreement shall be
deemed to refer to the most recent statements furnished pursuant to clauses (b) and
(c), respectively, of Section 6.01 of the Agreement,
including the statements in connection with which this Compliance Certificate
is delivered.


 


5.             The
financial covenant analyses and information set forth on Schedule 1
attached hereto are true and accurate on and as of the date of this
Certificate.


 


IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
                              ,
                .


 


	
   

  	
  VALMONT
  INDUSTRIES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


D-2

















 


For the Quarter/Year ended
                                      (“Statement
Date”)


 


SCHEDULE 1 

to the Compliance Certificate 

($ in 000’s)


 


	
  I.

  	
  Section 6.11
  (a) –Interest Coverage Ratio.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  A.

  	
  Consolidated
  EBITDA for four consecutive fiscal quarters ending on above date (“Subject
  Period”):

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

  	
  Consolidated
  net income for Subject Period:

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.

  	
  Consolidated
  interest expenses for Subject Period:

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.

  	
  Provision
  for income taxes for Subject Period:

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.

  	
  Depreciation
  expenses for Subject Period:

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.

  	
  Amortization
  expenses for Subject Period:

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.

  	
  Consolidated
  EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5):

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B.

  	
  Consolidated
  Interest Expenses for Subject Period:

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  C.

  	
  Interest
  Coverage Ratio (Line I.A.6 ÷ Line I.B.):

  	
   

  	
                              to
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Minimum required:

  	
   

  	
  2.50
  to 1.00           

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
  Section 6.11
  (b) –Leverage Ratio.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  A.

  	
  Consolidated
  Indebtedness, together with Attributed Principal Amount in connection with a
  Permitted Securitization, at Statement Date:

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B.

  	
  Consolidated
  EBITDA for Subject Period (Line I.A.6 above):

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  C.

  	
  Leverage
  Ratio (Line II.A. ÷ Line II.B.):

  	
   

  	
                              to
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Maximum permitted:

  	
   

  	
  3.75
  to 1.00          

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III.

  	
  Section 6.11
  (c) – Senior Debt Ratio.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  A.

  	
  Senior
  Debt as of Statement Date, on a Consolidated basis:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

  	
  Indebtedness
  under the Loan Documents:

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.

  	
  Other
  Indebtedness which ranks pari passu
  in right of payment to the Indebtedness under the Loan Documents:

  	
   

  	
  $                            

  	
   

  



 


D-3

















 


	
   

  	
   

  	
  3.

  	
  Indebtedness
  secured by a Lien on any Property owned by any such Person even though such
  Person has not assumed or otherwise become liable for the payment thereof
  (other than carriers’, warehousemen’s, mechanics’, repairmen’s or other like
  non-consensual statutory Liens arising in the ordinary course of business):

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.

  	
  The
  aggregate Attributed Principal Amount in connection with a Permitted
  Securitization:

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.

  	
  Senior
  Debt (Lines III.A. 1 + 2 + 3 + 4):

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B.

  	
  Consolidated
  EBITDA for Subject Period (Line I.A.6 above):

  	
   

  	
  $                            

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  C.

  	
  Senior
  Debt Ratio (Line III.A. ÷ Line III.B.):

  	
   

  	
  to
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Maximum
  permitted:

  	
   

  	
   2.50
  to 1.00          

  	
   

  



 


D-4

















 


EXHIBIT E-1


 


ASSIGNMENT
AND ASSUMPTION


 


This Assignment and Assumption (this “Assignment
and Assumption”) is dated as of the Effective Date set forth below and is
entered into by and between [the][each](2) Assignor identified in item
1 below ([the][each, an] “Assignor”) and [the][each](3) Assignee
identified in item 2 below ([the][each, an] “Assignee”).  [It is understood and agreed that the rights
and obligations of [the Assignors][the Assignees](4) hereunder are several
and not joint.](5)  Capitalized terms used but not defined herein shall
have the meanings given to them in the Credit Agreement identified below (the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by the
Assignee.  The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.


 


For an agreed consideration, [the][each] Assignor
hereby irrevocably sells and assigns to [the Assignee][the respective
Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes
from [the Assignor][the respective Assignors], subject to and in accordance
with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all
of [the Assignor’s][the respective Assignors’] rights and obligations in [its
capacity as a Lender][their respective capacities as Lenders] under the Credit
Agreement and any other documents or instruments delivered pursuant thereto to
the extent related to the amount and percentage interest identified below of
all of such outstanding rights and obligations of [the Assignor][the respective
Assignors] under the respective facilities identified below (including, without
limitation, the Letters of Credit and the Swing Line Loans included in such
facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of [the
Assignor (in its capacity as a Lender)][the respective Assignors (in their
respective capacities as Lenders)] against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the
rights and obligations sold and assigned by [the][any] Assignor to [the][any]
Assignee pursuant to clauses (i) and (ii) above being referred to herein
collectively


 






(2) For bracketed language here and elsewhere in
this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. 
If the assignment is from multiple Assignors, choose the second
bracketed language.


 


(3) For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. 
If the assignment is to multiple Assignees, choose the second bracketed
language.


 


(4) Select as appropriate


 


(5) Include bracketed language if there are
either multiple Assignors or multiple Assignees.


 


E-1-1

















 


as [the][an] “Assigned
Interest”).  Each such sale and
assignment is without recourse to [the][any] Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by [the][any] Assignor.


 


1.                                       Assignor[s]:                                                        


                                                                    
                                                        



 


2.                                       Assignee[s]:                                                                                                                         


                                                [for each
Assignee, indicate [Affiliate][Approved Fund] of [identify
Lender]


 


3.                                       Borrower(s):  Valmont Industries, Inc., a Delaware
corporation, and each Designated Borrower party to the Credit Agreement


 


4.                                       Administrative
Agent:  Bank of America, N.A., as the
administrative agent under the Credit Agreement


 


5.                                       Credit
Agreement:  Credit
Agreement, dated as of October 16, 2008 among Valmont Industries, Inc.,
the Lenders from time to time party thereto, Banc of America Securities Asia
Limited, as Singapore Loan Agent, and Bank of America, N.A., as Administrative
Agent, L/C Issuer and Swing Line Lender


 


6.                                       Assigned
Interest[s]:


 


	
  Assignor[s](6)

  	
   

  	
  Assignee[s](7)

  	
   

  	
  Aggregate Amount of

  Commitment for all

  Lenders(8)

  	
   

  	
  Amount of

  Commitment

  Assigned

  	
   

  	
  Percentage

  Assigned of

  Commitment(9)

  	
   

  	
  CUSIP

  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  



 


[7.                                   Trade Date:                                               ]  (10)


 






(6) List each Assignor, as appropriate.


 


(7) List each Assignee, as appropriate.


 


(8) Amounts in this column and in the
column immediately to the right to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date.


 


(9)  Set forth, to at least 9 decimals,
as a percentage of the Commitment of all Lenders thereunder.


 


(10)  To be
completed if the Assignor and the Assignee intend that the minimum assignment
amount is to be determined as of the Trade Date.


 


E-1-2

















 


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


 


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


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


	
  [Consented to and]  (11) Accepted:

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA, N.A., as

  	
   

  
	
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Consented to:] (12)

  	
   

  
	
   

  	
   

  
	
  VALMONT INDUSTRIES, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 






(11)  To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.


 


(12)  To be added only if the consent of the
Company and/or other parties (e.g. Swing Line Lender, L/C Issuer, Alternative
Currency Funding Lender, Singapore Borrowing Funding Lender) is required by the
terms of the Credit Agreement.


 


E-1-3
















 


ANNEX 1 TO ASSIGNMENT AND ASSUMPTION


 


STANDARD TERMS AND
CONDITIONS FOR


 


ASSIGNMENT AND
ASSUMPTION


 


1.             Representations and Warranties.


 


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


 


1.2.          Assignee. [The][Each] Assignee (a) represents
and warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all the requirements to be an assignee
under Section 10.06(b)(iii), (v), (vi), (vii) and
(viii) of the Credit Agreement (subject to such consents, if any,
as may be required under Section 10.06(b)(iii) of the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the
extent of [the][the relevant] Assigned Interest, shall have the obligations of
a Lender thereunder, (iv) it is sophisticated with respect to decisions to
acquire assets of the type represented by [the][such] Assigned Interest and
either it, or the Person exercising discretion in making its decision to
acquire [the][such] Assigned Interest, is experienced in acquiring assets of
such type, (v) it has received a copy of the Credit Agreement, and has
received or has been accorded the opportunity to receive copies of the most
recent financial statements delivered pursuant to Section 6.01
thereof, as applicable, and such other documents and information as it has
deems appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it
has independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if
it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by [the][such] Assignee; and (b) agrees that (i) it
will, independently and without reliance upon the Administrative Agent,
[the][any] Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents, and 


 


E-1-4

















 


(ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 


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


 


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


 


E-1-5

















 


EXHIBIT E-2


 


FORM OF
ADMINISTRATIVE QUESTIONNAIRE


 


See
attached.


 


E-2-1

















 


ADMINISTRATIVE DETAILS
REPLY FORM


CONFIDENTIAL


 


	
  FAX ALONG WITH COMMITMENT LETTER TO:

  	
   

  
	
   

  	
  FAX #

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  I. Borrower
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  Type of
  Credit Facility

  	
   

  
													



 


II. Legal
Name of Lender of Record for Signature Page:


 


 




 





•                  Signing Credit Agreement      o
 YES     o  NO


•                  Coming in via Assignment      o
 YES     o  NO


 


	
  III.
  Type of Lender:

  	
   

  



(Bank,
Asset Manager, Broker/Dealer, CLO/CDO, Finance Company, Hedge Fund, Insurance,
Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose
Vehicle, Other – please specify)


 


	
  IV.
  Domestic Address:

  	
   

  	
  V. Eurodollar Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


VI. US Contact Information:


 


Syndicate
level information (which may contain material non-public information about the
Borrower and its related parties or their respective securities will be made
available to the Credit Contact(s).  The Credit Contacts identified must
be able to receive such information in accordance with his/her institution’s
compliance procedures and applicable laws, including Federal and State
securities laws.


 


	
   

  	
   

  	
   

  	
   

  	
  Primary

  	
   

  	
  Secondary

  	
   

  
	
   

  	
   

  	
  Credit Contact

  	
   

  	
  Operations Contact

  	
   

  	
  Operations Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E Mail
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IntraLinks E Mail Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Does Secondary Operations
Contact need copy of notices?   o YES   o NO


 


E-2-2

















 


ADMINISTRATIVE DETAILS
REPLY FORM


CONFIDENTIAL


 


VI. Singapore Contact
Information:


 


Syndicate
level information (which may contain material non-public information about the
Borrower and its related parties or their respective securities will be made
available to the Credit Contact(s).  The Credit Contacts identified must
be able to receive such information in accordance with his/her institution’s
compliance procedures and applicable laws, including Federal and State
securities laws.


 


	
   

  	
   

  	
   

  	
   

  	
  Primary

  	
   

  	
  Secondary

  	
   

  
	
   

  	
   

  	
  Credit Contact

  	
   

  	
  Operations Contact

  	
   

  	
  Operations Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E Mail
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IntraLinks E Mail Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Does Secondary Operations
Contact need copy of notices?   o YES   o NO


 


	
   

  	
   

  	
  Letter of Credit

  	
   

  	
  Draft Documentation

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Contact

  	
   

  	
  Contact

  	
   

  	
  Legal Counsel

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E Mail
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


PLEASE
CHECK IF YOU CAN FUND IN THE CURRENCIES REQUIRED FOR THIS TRANSACTION LISTED
BELOW:


 


	
  o

  	
  US DOLLAR

  	
  o

  	
  CANADIAN DOLLARS

  	
  o

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o

  	
  EUROS

  	
  o

  	
  SINGAPOREAN DOLLARS

  	
  o

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o

  	
  AUSTRALIAN DOLLARS

  	
  o

  	
  POUNDS STERLING

  	
  o

  	
   

  



 


E-2-3

















 


ADMINISTRATIVE DETAILS
REPLY FORM


CONFIDENTIAL


 


VII.
Lender’s SWIFT Payment Instructions for Euros (for transactions in the US):


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (SWIFT)

  	
  (Country)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  
	
   

  	
   

  
	
  (FFC Account #)

  	
  (FFC Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


VII.
Lender’s SWIFT Payment Instructions for Australian Dollars (for transactions in
the US):


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (SWIFT)

  	
  (Country)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  
	
   

  	
   

  
	
  (FFC Account #)

  	
  (FFC Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


VII.
Lender’s SWIFT Payment Instructions for Canadian Dollars (for transactions in
the US):


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (SWIFT)

  	
  (Country)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  
	
   

  	
   

  
	
  (FFC Account #)

  	
  (FFC Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


VII.
Lender’s SWIFT Payment Instructions for Singaporean Dollars (for transactions
in the US):


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (SWIFT)

  	
  (Country)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  



 


E-2-4

















 


ADMINISTRATIVE DETAILS
REPLY FORM


CONFIDENTIAL


 


	
  (FFC Account #)

  	
  (FFC Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


VII.
Lender’s SWIFT Payment Instructions for Pounds Sterling (for transactions in
the US):


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (SWIFT)

  	
  (Country)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  
	
   

  	
   

  
	
  (FFC Account #)

  	
  (FFC Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


VII.
Lender’s SWIFT Payment Instructions for Euros (for transactions in Singapore):


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (SWIFT)

  	
  (Country)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  
	
   

  	
   

  
	
  (FFC Account #)

  	
  (FFC Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


VII.
Lender’s SWIFT Payment Instructions for Australian Dollars (for transactions in
Singapore):


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (SWIFT)

  	
  (Country)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  
	
   

  	
   

  
	
  (FFC Account #)

  	
  (FFC Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


VII.
Lender’s SWIFT Payment Instructions for Canadian Dollars (for transactions in
Singapore):


 


Pay to:


 


	
   

  	
   

  
	
  (Bank Name)

  	
   

  



 


E-2-5

















 


ADMINISTRATIVE DETAILS
REPLY FORM


CONFIDENTIAL


 


	
  (SWIFT)

  	
  (Country)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  
	
   

  	
   

  
	
  (FFC Account #)

  	
  (FFC Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


VII.
Lender’s SWIFT Payment Instructions for Singaporean Dollars (for transactions
in Singapore):


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (SWIFT)

  	
  (Country)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  
	
   

  	
   

  
	
  (FFC Account #)

  	
  (FFC Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


VII.
Lender’s SWIFT Payment Instructions for Pounds Sterling (for transactions in
Singapore):


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (SWIFT)

  	
  (Country)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  
	
   

  	
   

  
	
  (FFC Account #)

  	
  (FFC Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


VII.
Lender’s SWIFT Payment Instructions for US Dollars (for transactions in
Singapore):


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (SWIFT)

  	
  (Country)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  
	
   

  	
   

  
	
  (FFC Account #)

  	
  (FFC Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


E-2-6

















 


ADMINISTRATIVE DETAILS
REPLY FORM


CONFIDENTIAL


 


VIII.
Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’
Acceptance Fed Wire Payment Instructions (if applicable):


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (ABA #)

  	
   

  
	
   

  	
   

  
	
  (Account #)

  	
   

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


IX. Lender’s
Fed Wire Payment Instructions:


 


Pay to:


 


	
  (Bank Name)

  	
   

  
	
   

  	
   

  
	
  (ABA #)

  	
  (City/State)

  
	
   

  	
   

  
	
  (Account #)

  	
  (Account Name)

  
	
   

  	
   

  
	
  (Attention)

  	
   

  



 


X.
Organizational Structure and Tax Status


 


Please
refer to the enclosed withholding tax instructions below and then complete this
section accordingly:


 


	
  Lender
  Taxpayer Identification Number (TIN):

  	
   

  



 


Tax Withholding Form Delivered
to Bank of America*:


 


	
  o

  	
  W-9

  
	
   

  	
   

  
	
  o

  	
  W-8BEN

  
	
   

  	
   

  
	
  o

  	
  W-8ECI

  
	
   

  	
   

  
	
  o

  	
  W-8EXP

  
	
   

  	
   

  
	
  o

  	
  W-8IMY

  



 


Tax
Contact


 


	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  E Mail
  Address:

  	
   

  	
   

  



 


E-2-7
















 


ADMINISTRATIVE DETAILS REPLY FORM


CONFIDENTIAL


 


NON–U.S. LENDER INSTITUTIONS


 


1. Corporations:


 


If your institution is incorporated outside
of the United States for U.S. federal income tax purposes, and is the
beneficial owner of the interest and other income it receives, you must
complete one of the following three tax forms, as applicable to your
institution: a.) Form W-8BEN (Certificate of Foreign Status of Beneficial
Owner), b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade or
Business), or c.) Form W-8EXP (Certificate of Foreign Government or
Governmental Agency).


 


A U.S. taxpayer identification number is
required for any institution submitting a Form W-8 ECI.  It is also required on Form W-8BEN for
certain institutions claiming the benefits of a tax treaty with the U.S.  Please refer to the instructions when
completing the form applicable to your institution.  In addition, please be advised that U.S. tax
regulations do not permit the acceptance of faxed forms.  An original tax form must
be submitted.


 


2. Flow-Through Entities


 


If your institution is organized outside the
U.S., and is classified for U.S. federal income tax purposes as either a
Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S.
flow-through entity, an original Form W-8IMY (Certificate of Foreign
Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches for United
States Tax Withholding) must be completed by the intermediary together with a
withholding statement.  Flow-through
entities other than Qualified Intermediaries are required to include tax forms
for each of the underlying beneficial owners.


 


Please refer to the instructions when
completing this form.  In addition,
please be advised that U.S. tax regulations do not permit the acceptance of
faxed forms.  Original tax
form(s) must be submitted.


 


U.S. LENDER INSTITUTIONS:


 


If your institution is incorporated or
organized within the United States, you must complete and return Form W-9
(Request for Taxpayer Identification Number and Certification).  Please be advised that we
require an original form W-9.


 


Pursuant to the language contained in the tax
section of the Credit Agreement, the applicable tax form for your institution
must be completed and returned on or prior to the date on which your
institution becomes a lender under this Credit Agreement.  Failure to provide the proper tax form when
requested will subject your institution to U.S. tax withholding.


 


E-2-8

















 


ADMINISTRATIVE DETAILS REPLY FORM


CONFIDENTIAL


 


XI. Bank of America Payment Instructions for
transactions in the US:


 


Pay to:


 


	
  US Dollar:

  	
   

  
	
  Bank of America, NA

  	
   

  
	
  ABA# 

  	
   

  
	
  Account name: Large Corporate
  Loan Servicing

  	
   

  
	
  Account #: 

  	
   

  
	
  Reference: Valmont Industries

  	
   

  
	
  Attention – Mary Porter

  	
   

  
	
   

  	
   

  
	
  Euros

  	
   

  
	
  Bank of America London

  	
   

  
	
  Swift Address  

  	
   

  
	
  Account # 

  	
   

  
	
   

  	
   

  
	
  Australian
  Dollars

  	
   

  
	
  Bank of America Sydney

  	
   

  
	
  Swift Address 

  	
   

  
	
  Account #  

  	
   

  
	
   

  	
   

  
	
  Canadian
  Dollars

  	
   

  
	
  Bank of America Canada

  	
   

  
	
  Swift Address 

  	
   

  
	
  Account #  

  	
   

  
	
   

  	
   

  
	
  Singaporean
  Dollars

  	
   

  
	
  Bank of America Singapore

  	
   

  
	
  Swift Address 

  	
   

  
	
  Account # 

  	
   

  
	
   

  	
   

  
	
  Pound
  Sterling

  	
   

  
	
  Bank of America London

  	
   

  
	
  Swift Address  

  	
   

  
	
  Account # 

  	
   

  
	
  Sort Code 

  	
   

  
	
   

  	
   

  
	
  XI. Bank of America Payment Instructions
  for transactions in Singapore:

  
	
   

  	
   

  
	
  Pay to:

  	
   

  
	
   

  	
   

  
	
  US Dollar

  	
   

  
	
  Bank
  of America, N.A.

  	
   

  
	
  New
  York

  	
   

  
	
  (SWIFT
  ID:    )

  	
   

  
	
  A/C
  no. 

  	
   

  
	
  CHIPS
  UID 

  
	
   

  	
   

  
	
  Euros

  	
   

  
	
  Bank of
  America, London Branch (Swift ID:    )

  
	
  for credit
  to Bank of America, Singapore Branch (Swift ID:     )

  
	
  Account
  number: 

  	
   

  



 


	
  Australian
  Dollars

  	
   

  
	
  Bank of
  America, Sydney Branch (Swift ID:     )

  
	
  for credit
  to Bank of America, Singapore Branch (Swift ID:     )

  
	
  Account
  number:

  



 


E-2-9

















 


ADMINISTRATIVE DETAILS REPLY FORM


CONFIDENTIAL


 


	
  Canadian
  Dollars

  	
   

  
	
  Bank of
  America, Canada (Treasury) (Swift ID:     )

  
	
  for credit
  to Bank of America, Singapore Branch (Swift ID:     )

  
	
  Account
  number: 

  
	
   

  	
   

  
	
  Singapore
  Dollars

  	
   

  
	
  MAS Account
  No. 

  	
   

  
	
   

  	
   

  
	
  Pounds
  Sterling

  	
   

  
	
  Bank of
  America, London Branch (Swift ID:     )

  	
   

  
	
  for credit
  to Bank of America, Singapore Branch (Swift ID:     )

  
	
  Account
  Number: 

  



 


E-2-10

















 


EXHIBIT F


 


FORM OF
DESIGNATED BORROWER 

REQUEST AND ASSUMPTION AGREEMENT


 


Date: 
                      ,           


 


To:          Bank
of America, N.A., as Administrative Agent


 


Ladies and Gentlemen:


 


This Designated Borrower Request and Assumption
Agreement is made and delivered pursuant to Section 2.14 of that
certain Credit Agreement, dated as of October 16, 2008 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the “Credit Agreement”), among Valmont Industries, Inc., a
Delaware corporation  (the “Company”),
the Designated Borrowers from time to time party thereto, the Lenders from time
to time party thereto, Banc of America Securities Asia Limited, as Singapore
Loan Agent, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender, and reference is made thereto for full particulars of the
matters described therein.  All capitalized
terms used in this Designated Borrower Request and Assumption Agreement and not
otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement.


 


Each of
                                            
(the “Designated Borrower”) and the Company hereby confirms, represents
and warrants to the Administrative Agent and the Lenders that the Designated
Borrower is a Subsidiary of the Company.


 


The documents required to be delivered to the
Administrative Agent under Section 2.14 of the Credit Agreement
will be furnished to the Administrative Agent in accordance with the
requirements of the Credit Agreement.


 


Complete if the
Designated Borrower is a Domestic Subsidiary:  The true and correct U.S. taxpayer
identification number of the Designated Borrower is
                                      .


 


Complete if the
Designated Borrower is a Foreign Subsidiary:  The true and correct unique identification
number that has been issued to the Designated Borrower by its jurisdiction of
organization and the name of such jurisdiction are set forth below:


 


	
  Identification Number

  	
   

  	
  Jurisdiction of Organization

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


The parties hereto hereby confirm that with effect
from the date of the Designated Borrower Notice for the Designated Borrower,
the Designated Borrower shall have obligations, duties and liabilities toward
each of the other parties to the Credit Agreement identical to those which the
Designated Borrower would have had if the Designated Borrower had been an
original 


 


F-1

















 


party to the Credit
Agreement as a Borrower.  Effective as of
the date of the Designated Borrower Notice for the Designated Borrower, the
Designated Borrower confirms its acceptance of, and consents to, all representations
and warranties, covenants, and other terms and provisions of the Credit
Agreement.


 


The parties hereto hereby request that the Designated
Borrower be entitled to receive Loans under the Credit Agreement, and
understand, acknowledge and agree that neither the Designated Borrower nor the
Company on its behalf shall have any right to request any Loans for its account
unless and until the date five Business Days after the effective date
designated by the Administrative Agent in a Designated Borrower Notice delivered
to the Company and the Lenders pursuant to Section 2.14 of the
Credit Agreement.


 


This Designated Borrower Request and Assumption
Agreement shall constitute a Loan Document under the Credit Agreement.


 


THIS DESIGNATED BORROWER REQUEST AND ASSUMPTION
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.


 


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


 


	
   

  	
  [DESIGNATED
  BORROWER]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VALMONT
  INDUSTRIES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


F-2

















 


EXHIBIT G


 


FORM OF
DESIGNATED BORROWER NOTICE


 


Date: 
                      ,         


 


To:          Valmont Industries, Inc.


 


The Lenders party to the
Credit Agreement referred to below


 


Ladies and Gentlemen:


 


This Designated Borrower Notice is made and delivered
pursuant to Section 2.14 of that certain Credit Agreement, dated as
of October 16, 2008  (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the “Credit Agreement”), among Valmont Industries, Inc., a
Delaware corporation  (the “Company”),
the Designated Borrowers from time to time party thereto, the Lenders from time
to time party thereto, Banc of America Securities Asia Limited, as Singapore
Loan Agent, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender, and reference is made thereto for full particulars of the
matters described therein.  All
capitalized terms used in this Designated Borrower Notice and not otherwise
defined herein shall have the meanings assigned to them in the Credit
Agreement.


 


The Administrative Agent hereby notifies Company and
the Lenders that effective as of the date hereof
[                                ]
shall be a Designated Borrower and may receive Loans for its account on the
terms and conditions set forth in the Credit Agreement.


 


This Designated Borrower Notice shall constitute a
Loan Document under the Credit Agreement.


 


	
   

  	
  BANK OF
  AMERICA, N.A.,

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


G-1

















 


EXHIBIT H


 


OPINION


 


See attached.


 


H-1

















 


October 16, 2008


 


BANK
OF AMERICA, N.A., AS ADMINISTRATIVE AGENT,


SWING
LINE LENDER, L/C ISSUER AND ALTERNATIVE


CURRENCY
FUNDING FRONTING LENDER, BANC OF


AMERICA
SECURITIES ASIA LIMITED, AS SINGAPORE


LOAN
AGENT, BANK OF AMERICA, N.A. SINGAPORE


BRANCH,
AS SINGAPORE BORROWING FUNDING


FRONTING
LENDER, AND THE OTHER LENDERS PARTY


TO
THE CREDIT AGREEMENT DESCRIBED BELOW


 


Ladies and Gentlemen:


 


We
have acted as counsel for Valmont Industries, Inc., a Delaware corporation
(the “Company”), and PiRod, Inc., a Delaware corporation (“PiRod”),
Valmont Coatings, Inc., a Delaware corporation (“Coatings”), and Valmont
Newmark, Inc., a Delaware corporation (“Newmark”) (PiRod, Coatings and
Newmark are individually referred to herein as a “Subsidiary Guarantor” and
collectively as the “Subsidiary Guarantors”), in connection with the Credit
Agreement, dated as of October 16, 2008, by and among the Company, the
Designated Borrowers party thereto, Bank of America, N.A., as Administrative
Agent, Swing Line Lender, L/C Issuer and Alternative Currency Funding Fronting
Lender, Banc of America Securities Asia Limited, as Singapore Loan Agent, Bank
of America, N.A. Singapore Branch, as Singapore Borrowing Funding Fronting
Lender, and the other Lenders party thereto (the “Agreement”).  All capitalized terms used in this opinion
shall have the meanings attributed to them in the Agreement.


 


In
connection with this opinion, we have examined originals, or copies certified
or otherwise identified to our satisfaction, of the Organization Documents of
the Company and the Subsidiary Guarantors, Certificates of Good Standing for
the Company and the Subsidiary Guarantors issued by the Secretary of State of
Delaware and a Certificate of Good Standing for the Company issued by the
Secretary of State of Nebraska, and such resolutions, statutes and other
documents as we have deemed necessary and appropriate for the purpose
hereof.  For purposes of such
examinations, we have assumed the legal capacity of all natural persons, the
genuineness of all signatures (other than those on behalf of the Company and
the Subsidiary Guarantors on the Loan Documents) and the authenticity of all
documents submitted to us as 


 


H-2

















 


originals
and the conformity to original documents of all documents submitted to us as
certified copies or photocopies.  We have
also relied as to questions of fact on the representations and warranties of
the Company contained in the Loan Documents and certificates delivered to you
and us in connection therewith.


 


For
purposes of the opinions expressed herein, we have, with your approval, assumed
that each party (other than the Company and the Subsidiary Guarantors) to the
Loan Documents and to all other documents, agreements and instruments examined
by us has all requisite power and authority and has taken all necessary action
to enter into and perform all of its obligations under the Loan Documents or
such other documents, agreements and instruments to which it is a party, and
that the Loan Documents and each such other document, agreement and instrument
has been duly executed and is and will be the valid, binding and enforceable
obligation of each party thereto (other than the Company and the Subsidiary
Guarantors) and that such parties have fully performed all obligations
thereunder required to be performed. 
Based upon the foregoing, it is our opinion that:


 


1.        The Company and each Subsidiary Guarantor is duly organized,
validly existing and in good standing under the laws of the State of
Delaware.  The Company has all requisite
power and authority to own its Property and to carry on its business as now
conducted, and is in good standing and qualified to do business in each
jurisdiction in which the nature of the business conducted therein or the
Property owned by it therein makes such qualification necessary, except where
such failure to qualify could not reasonably be expected to have a Material
Adverse Effect.


 


2.        The Company and each Subsidiary Guarantor has full legal
power and authority to enter into, execute, deliver and perform the terms of
the Loan Documents to which it is a party, all of which have been duly
authorized by all proper and necessary corporate action and are in full
compliance with its Organizational Documents. 
The Company and each Subsidiary Guarantor has duly executed and
delivered the Loan Documents to which it is a party.


 


3.        The Loan Documents constitute the valid and legally binding
obligations of the Company and each Subsidiary Guarantor to the extent they are
parties thereto, enforceable in accordance with their respective terms.


 


4.        No consent, authorization or approval of, filing with, notice
to, or exemption by, stockholders or holders of any other equity interest, any
Governmental Authority or, to our knowledge, any other Person, which has not
already been obtained or made, is required to authorize, or is required in
connection with the execution, delivery or performance of, the Loan Documents
to which the Company is a party, or is required as a condition to the validity
or enforceability of the Loan Documents to which it is a party.


 


5.        The execution, delivery
and performance of the Loan Documents by the Company and the Subsidiary
Guarantors will not result in a breach or violation of, or constitute a default
under, any statute, rule or regulation of any Governmental Authority,
except where such breach, violation or default could not reasonably be expected
to have a Material Adverse Effect.


 


6.        Neither the Company nor
any Subsidiary Guarantor is an “investment company” or a company “controlled by”
an “investment company” within the meaning of the Investment Company Act of
1940, as amended.


 


The opinions set forth above
are subject to the following qualifications and exceptions:


 


1.        The opinions as to legality, validity and enforceability are
subject to all applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and similar laws 


 


H-3

















 


from time to time in effect
affecting creditors’ rights generally, by general principles of equity
(including, without limitation equitable remedies), regardless of whether
enforcement, interpretation, or declaration of same is sought in a proceeding in
equity or at law, and to the extent enforcement, interpretation, or declaration
of same may be limited, with respect to equitable principles, by the discretion
of the court or other tribunal before which an application for such remedy is
brought or pending.  In addition, the
enforceability of certain remedial provisions may be limited by applicable law,
which limitations, however, in our judgment do not make the remedies provided
for therein (taken as a whole) inadequate for the practical realization of the
benefits afforded thereby.


 


2.        We express no opinion on the enforceability of any provisions
awarding or providing for attorneys’ fees, or any provisions to be agreed to by
the parties after execution of the Loan Documents.


 


3.        We express no opinion on
the enforceability of any provision designating choice law or choice of forum,
or waiving rights to jury trial.


 


4.        We are members of the bar of the State of Nebraska and we do
not purport to be experts on the laws of any jurisdiction other than the laws of
the State of Nebraska, the General Corporation Laws of the State of Delaware
and the Federal laws of the United States. 
In rendering the foregoing opinions, we assume that the laws of the
State of New York are identical to the laws of the State of Nebraska and we do
not render any opinions as to any laws other than the laws of the State of
Nebraska, the General Corporation Laws of the State of Delaware and the Federal
laws of the United States.


 


This
opinion letter is limited to the matters stated herein, and no opinion is
implied or may be incurred beyond the matters expressly stated hereon.  We assume no obligation to inform you or any
of your assignees of any events or changes to any laws occurring subsequent to
the date hereof.


 


This
opinion is furnished to you pursuant to Section 4.01(a)(v) of the
Agreement.  This opinion is rendered
solely for your benefit in connection with the transactions contemplated by the
Agreement and, without our prior written consent, this opinion letter may not
be:


 


(i)         used or relied upon by any other party or for any other
purpose; or


 


(ii)        circulated, quoted in whole or in part, or
otherwise referred to in any reported document.


 


Notwithstanding the
foregoing, this opinion may be furnished to (but not relied upon by): (i) any
Lender’s auditors and attorneys; (ii) any governmental agency or authority
having regulatory jurisdiction over any Lender; and (iii) any particular
recipient as explicitly required by court order or subpoena.


 


	
   

  	
  Yours very truly,

  
	
   

  	
   

  
	
   

  	
  McGRATH NORTH MULLIN &
  KRATZ, PC LLO

  



 


H-4
















 


EXHIBIT I-1


 


FORM OF
COMPANY GUARANTY


 


See attached.


 


I-1-1

















 


GUARANTY AGREEMENT


 


THIS
AGREEMENT dated as of October 16, 2008 (this “Guaranty
Agreement”), is being entered into among VALMONT
INDUSTRIES, INC., a Delaware corporation  (the “Guarantor”), and BANK OF
AMERICA, N.A. and BANC OF AMERICA SECURITIES
ASIA LIMITED, each as Administrative Agent (in such capacities,
respectively and as the case may be, collectively the “Administrative Agent”)
for each of the Lenders (as defined below). 
All capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to such terms in the Credit Agreement.  All singular references to the Administrative
Agent shall mean any Administrative Agent, either Administrative Agent, the
Administrative Agent for the applicable Borrower (as defined below), or all
Administrative Agents, as the context may require.


 


RECITALS:


 


A.        Pursuant to a Credit Agreement dated as
of October 16, 2008 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among the
Guarantor, Valmont Industries Holland BV, a company organized under the laws of
The Netherlands and a Foreign Subsidiary of the Guarantor (“Valmont Holland”),
Valmont Singapore Pte. Ltd., a private limited company organized under the laws
of the Republic of Singapore and a Foreign Subsidiary of the Guarantor (“Valmont
Singapore”, and together with Valmont Holland, collectively the “Designated
Borrowers” and each a “Designated Borrower”), certain other
Subsidiaries of the Guarantor now or hereafter party thereto, as co-borrowers
(together with the Guarantor and the Designated Borrowers, collectively the “Borrowers”),
Bank of America, N.A., as Administrative Agent, Banc of America Securities Asia
Limited, as Singapore Loan Agent, and the lenders now or hereafter party
thereto (the “Lenders”), the Lenders have agreed to provide to the
Borrowers a revolving credit facility with a letter of credit sublimit and
swing line facility and with a multi-currency sublimit.


 


B.         It is a condition precedent to the
Lenders’ obligations to make and maintain such extensions of credit that the
Guarantor shall have executed and delivered this Guaranty Agreement to the
Administrative Agent.


 


In order to induce the Lenders
to from time to time make and maintain extensions of credit under the Credit
Agreement, the parties hereto agree as follows:


 


1.         Guaranty.  The Guarantor hereby unconditionally,
absolutely, continually and irrevocably guarantees to the Administrative Agent
for the benefit of the Lenders the payment and performance in full of the
Guaranteed Liabilities (as defined below). 
For all purposes of this Guaranty Agreement, “Guaranteed Liabilities”
means:  (a) each Designated Borrower’s
prompt payment in full, when due or declared due and at all such times, of all
Obligations and all other amounts pursuant to the terms of the Credit
Agreement, the Notes, and all other Loan Documents heretofore, now or at any
time or times hereafter owing, arising, due or payable from any Designated
Borrower to any one or more of the Lenders, including principal, interest,
premiums and fees (including all fees and expenses of counsel (collectively, “Attorneys’
Costs”); and (b) each Designated Borrower’s prompt, full and faithful
performance, observance and discharge of 


 


I-1-2

















 


each and every agreement, undertaking,
covenant and provision to be performed, observed or discharged by any
Designated Borrower under the Credit Agreement, the Notes and all other Loan
Documents.  The Guarantor’s obligations
to the Lenders under this Guaranty Agreement are hereinafter collectively
referred to as the “Guarantor’s Obligations”.  Notwithstanding the foregoing, the liability
of the Guarantor with respect to its Guarantor’s Obligations shall be limited
to an aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any applicable state
law.


 


The Guarantor agrees that it is
directly and primarily liable (subject to the limitation in the immediately
preceding sentence) for the Guaranteed Liabilities.


 


2.        Payment.  If any Designated Borrower shall default in
payment or performance of any of the Guaranteed Liabilities, whether principal,
interest, premium, fees (including, but not limited to, Attorneys’ Costs), or
otherwise, when and as the same shall become due, and after expiration of any
applicable grace period, whether according to the terms of the Credit
Agreement, by acceleration, or otherwise, or upon the occurrence and during the
continuance of any Event of Default under the Credit Agreement, then the
Guarantor will, upon demand thereof by the Administrative Agent, fully pay to
the Administrative Agent, for the benefit of the Lenders, subject to any
restriction on the Guarantor’s Obligations set forth in Section 1
hereof, an amount equal to all the Guaranteed Liabilities then due and owing.


 


3.        Absolute Rights and Obligations.  This is a guaranty of payment and not of
collection.  The Guarantor’s Obligations
under this Guaranty Agreement shall be absolute and unconditional irrespective
of, and the Guarantor hereby expressly waives, to the extent permitted by law,
any defense to its obligations under this Guaranty Agreement and all Loan Documents  to
which it is a party by reason of:


 


(a)        any lack of legality,
validity or enforceability of the Credit Agreement, of any of the Notes, of any
other Loan Document, or of any other agreement or instrument creating,
providing security for, or otherwise relating to any of the Guarantor’s
Obligations, any of the Guaranteed Liabilities, or any other guaranty of any of
the Guaranteed Liabilities (the Loan Documents and all such other agreements
and instruments being collectively referred to as the “Related Agreements”);


 


(b)        any action taken under
any of the Related Agreements, any exercise of any right or power therein
conferred, any failure or omission to enforce any right conferred thereby, or
any waiver of any covenant or condition therein provided;


 


(c)        any acceleration of the
maturity of any of the Guaranteed Liabilities, or of any other obligations or
liabilities of any Person under any of the Related Agreements;


 


(d)        any release, exchange,
non-perfection, lapse in perfection, disposal, deterioration in value, or
impairment of any security for any of the Guaranteed Liabilities or for any
other obligations or liabilities of any Person under any of the Related
Agreements;


 


I-1-3

















 


(e)        any dissolution of any
Designated Borrower or the Guarantor or any other party to a Related Agreement,
or the combination or consolidation of any Designated Borrower or the Guarantor
or any other party to a Related Agreement into or with another entity or any
transfer or disposition of any assets of any Designated Borrower or the
Guarantor or any other party to a Related Agreement;


 


(f)         any extension
(including without limitation extensions of time for payment), renewal,
amendment, restructuring or restatement of, any acceptance of late or partial
payments under, or any change in the amount of any borrowings or any credit
facilities available under, the Credit Agreement, any of the Notes or any other
Loan Document or any other Related Agreement, in whole or in part;


 


(g)        the existence,
addition, modification, termination, reduction or impairment of value, or
release of any other guaranty (or security therefor) of the Guaranteed
Liabilities (including without limitation the Guarantor’s Obligations and
obligations arising under any other guaranty now or hereafter in effect);


 


(h)        any waiver of,
forbearance or indulgence under, or other consent to any change in or departure
from any term or provision contained in the Credit Agreement, any other Loan
Document or any other Related Agreement, including without limitation any term
pertaining to the payment or performance of any of the Guaranteed Liabilities
or any of the obligations or liabilities of any party to any other Related
Agreement; or


 


(i)         any other circumstance
whatsoever (with or without notice to or knowledge of the Guarantor) which may
or might in any manner or to any extent vary the risks of the Guarantor, or
might otherwise constitute a legal or equitable defense available to, or
discharge of, a surety or a guarantor, including without limitation any right
to require or claim that resort be had to any Designated Borrower or any other
Loan Party or to any collateral in respect of the Guaranteed Liabilities or
Guarantor’s Obligations.


 


It is the express purpose and intent of the
parties hereto that this Guaranty Agreement and the Guarantor’s Obligations
hereunder shall be absolute and unconditional under any and all circumstances
and shall not be discharged except by payment as herein provided.


 


4.        Currency and Funds of Payment.  All Guarantor’s Obligations will be paid in
lawful currency of the United States of America and in immediately available
funds, regardless of any law, regulation or decree now or hereafter in effect
that might in any manner affect the Guaranteed Liabilities, or the rights of
any Lender with respect thereto as against any Designated Borrower, or cause or
permit to be invoked any alteration in the time, amount or manner of payment by
any Designated Borrower of any or all of the Guaranteed Liabilities.


 


5.        Events of Default.  Without limiting the provisions of Section 2
hereof, in the event that there shall occur and be continuing an Event of
Default, then notwithstanding any collateral or other security or credit
support for the Guaranteed Liabilities, at the Administrative 


 


I-1-4

















 


Agent’s election and without
notice thereof or demand therefor, the Guarantor’s Obligations shall
immediately be and become due and payable.


 


6.        Subordination.  Until this Guaranty Agreement is terminated
in accordance with Section 22 hereof, the Guarantor hereby
unconditionally subordinates all present and future debts, liabilities or
obligations now or hereafter owing to the Guarantor (a) of any Designated
Borrower, to the payment in full of the Guaranteed Liabilities and (b) of
each other Person now or hereafter constituting a Loan Party, to the payment in
full of the obligations of such Loan Party owing to any Lender and arising
under the Loan Documents.  All amounts
due under such subordinated debts, liabilities, or obligations shall, upon the
occurrence and during the continuance of an Event of Default, be collected and,
upon request by the Administrative Agent, paid over forthwith to the
Administrative Agent for the benefit of the Lenders on account of the
Guaranteed Liabilities, the Guarantor’s Obligations, or such other obligations,
as applicable, and, after such request and pending such payment, shall be held
by the Guarantor as agent and bailee of the Lenders separate and apart from all
other funds, property and accounts of the Guarantor.


 


7.        Suits.  The Guarantor from time to time shall pay to
the Administrative Agent for the benefit of the Lenders, on demand, at the
Administrative Agent’s Office or such other address as the Administrative Agent
shall give notice of to the Guarantor, the Guarantor’s Obligations as they
become or are declared due, and in the event such payment is not made
forthwith, the Administrative Agent may proceed to suit against the
Guarantor.  At the Administrative Agent’s
election, one or more and successive or concurrent suits may be brought hereon
by the Administrative Agent against the Guarantor, whether or not suit has been
commenced against any Designated Borrower or any other Person and whether or
not the Lenders have taken or failed to take any other action to collect all or
any portion of the Guaranteed Liabilities or have taken or failed to take any
actions against any collateral securing payment or performance of all or any
portion of the Guaranteed Liabilities, and irrespective of any event,
occurrence, or condition described in Section 3 hereof.


 


8.        Set-Off and Waiver.  The Guarantor waives any right to assert
against any Lender as a defense, counterclaim, set-off, recoupment or cross
claim in respect of its Guarantor’s Obligations, any defense (legal or
equitable) or other claim which the Guarantor may now or at any time hereafter
have against any Designated Borrower or any or all of the Lenders without
waiving any additional defenses, set-offs, counterclaims or other claims
otherwise available to the Guarantor. 
The Guarantor agrees that each Lender shall have a lien for all the
Guarantor’s Obligations upon all deposits or deposit accounts, of any kind, or
any interest in any deposits or deposit accounts, now or hereafter pledged,
mortgaged, transferred or assigned to such Lender or otherwise in the
possession or control of such Lender for any purpose (other than solely for
safekeeping) for the account or benefit of the Guarantor, including any balance
of any deposit account or of any credit of the Guarantor with the Lender,
whether now existing or hereafter established, and hereby authorizes each
Lender from and after the occurrence of an Event of Default at any time or
times with or without prior notice to apply such balances or any part thereof
to such of the Guarantor’s Obligations to the Lenders then due and in such
amounts as provided for in the Credit Agreement or otherwise as they may
elect.  For the purposes of this Section 8,
all remittances and property shall be deemed to be in the possession of a
Lender as soon as the same may be put in transit to it by mail or carrier or by
other bailee.


 


I-1-5

















 


9.        Waiver of Notice; Subrogation.


 


(a)        The Guarantor hereby
waives to the extent permitted by law notice of the following events or
occurrences:  (i) acceptance of this
Guaranty Agreement; (ii) the Lenders’ heretofore, now or from time to time
hereafter making Loans and issuing Letters of Credit and otherwise loaning
monies or giving or extending credit to or for the benefit of any Designated
Borrower or any other Loan Party, or otherwise entering into arrangements with
any Loan Party giving rise to Guaranteed Liabilities, whether pursuant to the
Credit Agreement or the Notes or any other Loan Document or Related Agreement
or any amendments, modifications, or supplements thereto, or replacements or
extensions thereof; (iii) presentment, demand, default, non-payment,
partial payment and protest; and (iv) any other event, condition, or
occurrence described in Section 3 hereof.  The Guarantor agrees that each Lender may
heretofore, now or at any time hereafter do any or all of the foregoing in such
manner, upon such terms and at such times as each Lender, in its sole and
absolute discretion, deems advisable, without in any way or respect impairing,
affecting, reducing or releasing the Guarantor from its Guarantor’s
Obligations, and the Guarantor hereby consents to each and all of the foregoing
events or occurrences.


 


(b)        The Guarantor hereby
agrees that payment or performance by the Guarantor of its Guarantor’s
Obligations under this Guaranty Agreement may be enforced by the Administrative
Agent on behalf of the Lenders upon demand by the Administrative Agent to the
Guarantor without the Administrative Agent being required, the Guarantor
expressly waiving to the extent permitted by law any right it may have to
require the Administrative Agent, to (i) prosecute collection or seek to
enforce or resort to any remedies against any Designated Borrower or any other
guarantor of the Guaranteed Liabilities, or (ii) seek to enforce or resort
to any remedies with respect to any security interests, Liens or encumbrances
granted to the Administrative Agent or any Lender or other party to a Related
Agreement by any Designated Borrower or any other Person on account of the
Guaranteed Liabilities or any guaranty thereof, IT BEING
EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY THE GUARANTOR THAT DEMAND
UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE ADMINISTRATIVE AGENT, AND
THE PROVISIONS HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT, EFFECTIVE AS OF THE
FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT
AGREEMENT.


 


(c)        The Guarantor further
agrees with respect to this Guaranty Agreement that it shall have no right of
subrogation, reimbursement, contribution or indemnity, nor any right of recourse
to security for the Guaranteed Liabilities unless and until 93 days immediately
following the Facility Termination Date (as such term is defined below) shall
have elapsed without the filing or commencement, by or against any Loan Party,
of any state or federal action, suit, petition or proceeding seeking any
reorganization, liquidation or other relief or arrangement in respect of
creditors of, or the appointment of a receiver, liquidator, trustee or
conservator in respect to, such Loan Party or its assets.  


 


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This waiver is expressly
intended to prevent the existence of any claim in respect to such subrogation,
reimbursement, contribution or indemnity by the Guarantor against the estate of
any other Loan Party within the meaning of Section 101 of the Bankruptcy
Code, in the event of a subsequent case involving any other Loan Party.  If an amount shall be paid to the Guarantor
on account of such rights at any time prior to termination of this Guaranty
Agreement in accordance with the provisions of Section 22 hereof,
such amount shall be held in trust for the benefit of the Lenders and shall
forthwith be paid to the Administrative Agent, for the benefit of the Lenders,
to be credited and applied upon the Guarantor’s Obligations, whether matured or
unmatured, in accordance with the terms of the Credit Agreement or otherwise as
the Lenders may elect.  The agreements in
this subsection shall survive repayment of all of the Guarantor’s Obligations,
the termination or expiration of this Guaranty Agreement in any manner,
including but not limited to termination in accordance with Section 22
hereof, and occurrence of the Facility Termination Date.  For purposes of this Guaranty Agreement, “Facility
Termination Date” means the date as of which all of the following shall
have occurred:  (a) the Aggregate
Commitments have terminated,  (b) all
Obligations have been paid in full (other than contingent indemnification
obligations),  and (c) all Letters of
Credit have terminated or expired (other than Letters of Credit as to which
other arrangements with respect thereto satisfactory to the Administrative
Agent and the L/C Issuer shall have been made).


 


10.      Effectiveness; Enforceability.  This Guaranty Agreement shall be effective as
of the date first above written and shall continue in full force and effect
until termination in accordance with Section 22 hereof.  Any claim or claims that the Lenders may at
any time hereafter have against the Guarantor under this Guaranty Agreement may
be asserted by the Administrative Agent on behalf of the Lenders by written
notice directed to the Guarantor in accordance with Section 24
hereof.


 


11.      Representations and Warranties.  The Guarantor warrants and represents to the
Administrative Agent, for the benefit of the Lenders, that it is duly
authorized to execute and deliver this Guaranty Agreement, and to perform its
obligations under this Guaranty Agreement, that this Guaranty Agreement has
been duly executed and delivered on behalf of the Guarantor by its duly
authorized representatives; that this Guaranty Agreement is legal, valid,
binding and enforceable against the Guarantor in accordance with its terms
except as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights
generally and by general equitable principles; and that the Guarantor’s
execution, delivery and performance of this Guaranty Agreement do not violate
or constitute a breach of any of its Organization Documents, any agreement or
instrument to which the Guarantor is a party, or any law, order, regulation,
decree or award of any governmental authority or arbitral body to which it or
its properties or operations is subject.


 


12.      Expenses.  The Guarantor agrees to be liable for the
payment of all reasonable fees and expenses, including Attorneys’ Costs,
incurred by any Lender in connection with the enforcement of this Guaranty
Agreement, whether or not suit be brought.


 


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13.      Reinstatement.  The Guarantor agrees that this Guaranty
Agreement shall continue to be effective or be reinstated, as the case may be,
at any time payment received by any Lender in respect of any Guaranteed Liabilities
is rescinded or must be restored for any reason, or is repaid by any Lender in
whole or in part in good faith settlement of any pending or threatened
avoidance claim.


 


14.      Attorney-in-Fact.  To the extent permitted by law, the Guarantor
hereby appoints the Administrative Agent, for the benefit of the Lenders, as
the Guarantor’s attorney-in-fact for the purposes of carrying out the
provisions of this Guaranty Agreement and taking any action and executing any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment is coupled with an interest
and is irrevocable; provided, that the Administrative Agent shall have
and may exercise rights under this power of attorney only upon the occurrence
and during the continuance of an Event of Default.


 


15.      Reliance.  The Guarantor represents and warrants to the
Administrative Agent, for the benefit of the Lenders, that:  (a) the Guarantor has adequate means to
obtain on a continuing basis (i) from each Designated Borrower,
information concerning each such Designated Borrower and such Designated
Borrower’s financial condition and affairs and (ii) from other reliable
sources, such other information as it deems material in deciding to provide
this Guaranty Agreement (“Other Information”), and has full and complete
access to each Designated Borrower’s books and records and to such Other
Information; (b) the Guarantor is not relying on any Lender or its or
their employees, directors, agents or other representatives or Affiliates, to
provide any such information, now or in the future; (c) the Guarantor has
been furnished with and reviewed the terms of the Credit Agreement and such
other Loan Documents and Related Agreements as it has requested, is executing this
Guaranty Agreement freely and deliberately, and understands the obligations and
financial risk undertaken by providing this Guaranty Agreement; (d) the
Guarantor has relied solely on the Guarantor’s own independent investigation,
appraisal and analysis of each Designated Borrower, each Designated Borrower’s
financial condition and affairs, the Other Information, and such other matters
as it deems material in deciding to provide this Guaranty Agreement and is
fully aware of the same; and (e) the Guarantor has not depended or relied
on any Lender or its or their employees, directors, agents or other
representatives or Affiliates, for any information whatsoever concerning any
Designated Borrower or any Designated Borrower’s financial condition and
affairs or any other matters material to the Guarantor’s decision to provide
this Guaranty Agreement, or for any counseling, guidance, or special
consideration or any promise therefor with respect to such decision.  The Guarantor agrees that no Lender has any
duty or responsibility whatsoever, now or in the future, to provide to the
Guarantor any information concerning any Designated Borrower or any Designated
Borrower’s financial condition and affairs, or any Other Information, other
than as expressly provided herein, and that, if the Guarantor receives any such
information from any Lender or its or their employees, directors, agents or
other representatives or Affiliates, the Guarantor will independently verify
the information and will not rely on any Lender or its or their employees,
directors, agents or other representatives or Affiliates, with respect to such
information.


 


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16.      Rules of Interpretation.  The rules of interpretation contained in
Article I of the Credit Agreement shall be applicable to this
Guaranty Agreement and are hereby incorporated by reference.  All representations and warranties contained
herein shall survive the delivery of documents and any extension of credit
referred to herein or guaranteed hereby.


 


17.      Entire Agreement.  This Guaranty Agreement, together with the
Credit Agreement and other Loan Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior negotiations, agreements, understandings,
inducements, commitments or conditions, express or implied, oral or written,
except as herein contained.  The express
terms hereof control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof.  Except as provided in Section 22,
neither this Guaranty Agreement nor any portion or provision hereof or thereof
may be changed, altered, modified, supplemented, discharged, canceled,
terminated, or amended orally or in any manner other than as provided in the
Credit Agreement.


 


18.      Binding Agreement; Assignment.  This Guaranty Agreement and the terms,
covenants and conditions hereof and thereof, shall be binding upon and inure to
the benefit of the parties hereto and thereto, and to their respective heirs,
legal representatives, successors and assigns; provided, however,
that the Guarantor shall not be permitted to assign any of its rights, powers,
duties or obligations under this Guaranty Agreement or any other interest
herein or therein without the prior written consent of the Administrative
Agent.  Without limiting the generality
of the foregoing sentence of this Section 18, any Lender may assign
to one or more Persons, or grant to one or more Persons participations in or
to, all or any part of its rights and obligations under the Credit Agreement
(to the extent permitted by the Credit Agreement); and to the extent of any
such assignment or participation such other Person shall, to the fullest extent
permitted by law, thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, subject however, to the
provisions of the Credit Agreement, including Article IX thereof
(concerning the Administrative Agent) and Section 10.06 thereof
concerning assignments and participations. 
All references herein to the Administrative Agent shall include any
successor thereof.


 


19.    Reserved.


 


20.      Severability.  The provisions of this Guaranty Agreement are
independent of and separable from each other. 
If any provision hereof shall for any reason be held invalid or
unenforceable, such invalidity or unenforceability shall not affect the
validity or enforceability of any other provision hereof, but this Guaranty
Agreement shall be construed as if such invalid or unenforceable provision had
never been contained herein.


 


21.      Counterparts.  This Guaranty Agreement may be executed in
any number of counterparts each of which when so executed and delivered shall
be deemed an original, and it shall not be necessary in making proof of this
Guaranty Agreement to produce or account for more than one such counterpart
executed by the Guarantor against whom enforcement is sought.  Without limiting the foregoing provisions of
this Section 21, the provisions of Section 10.10 of the
Credit Agreement shall be applicable to this Guaranty Agreement.


 


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22.                               Termination.  Subject to reinstatement pursuant to Section 13
hereof, this Guaranty Agreement and all of the Guarantor’s Obligations
hereunder (excluding those Guarantor’s Obligations relating to Guaranteed
Liabilities that expressly survive such termination) shall terminate on the
Facility Termination Date.


 


23.                               Remedies
Cumulative; Late Payments.  All
remedies hereunder are cumulative and are not exclusive of any other rights and
remedies of the Administrative Agent or any other Lender provided by law or
under the Credit Agreement, the other Loan Documents or other applicable
agreements or instruments.  The making of
the Loans and other credit extensions pursuant to the Credit Agreement and
other Related Agreements shall be conclusively presumed to have been made or
extended, respectively, in reliance upon the Guarantor’s guaranty of the
Guaranteed Liabilities pursuant to the terms hereof.  Any amounts not paid when due under this
Guaranty Agreement shall bear interest at the Default Rate.


 


24.                               Notices.  Any notice required or permitted hereunder
shall be given, (a) with respect to the Guarantor, at the address of the
Guarantor indicated in Schedule 10.02 of the Credit Agreement  and (b) with respect to the Administrative Agent or
any other Lender, at the Administrative Agent’s address indicated in Schedule
10.02 of the Credit Agreement.  All
such addresses may be modified, and all such notices shall be given and shall
be effective, as provided in Section 10.02 of the Credit Agreement
for the giving and effectiveness of notices and modifications of addresses
thereunder.


 


25.                               Governing
Law; Venue; Waiver of Jury Trial.


 


(a)                                  THIS
GUARANTY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.


 


(b)                                  THE
GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND CONSENTS THAT ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF NEW YORK, STATE OF NEW YORK,
UNITED STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS GUARANTY
AGREEMENT, THE GUARANTOR EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION
OVER IT AND ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING, AND THE GUARANTOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION
OR PROCEEDING.


 


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(c)                                  THE
GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY PERSONAL SERVICE
OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT,
ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO
THE ADDRESS FOR NOTICES TO THE GUARANTOR IN EFFECT PURSUANT TO SECTION 24
HEREOF, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE
LAWS IN EFFECT IN THE STATE OF NEW YORK.


 


(d)                                  NOTHING
CONTAINED IN SUBSECTIONS (b) or (c) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE THE GUARANTOR OR ANY OF THE
GUARANTOR’S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.  TO THE EXTENT PERMITTED BY THE APPLICABLE
LAWS OF ANY SUCH JURISDICTION, THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH
SUIT, ACTION OR PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT
AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE
AVAILABLE UNDER APPLICABLE LAW.


 


(e)                                  IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER OR
RELATED TO THIS GUARANTY AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION
THEREWITH, THE GUARANTOR AND THE ADMINISTRATIVE AGENT ON BEHALF OF THE LENDERS
HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION,
SUIT OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND
HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
ANY SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR
PROCEEDING.


 


(f)                                    THE
GUARANTOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY HAVE THAT ANY COURT
TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO THE TERMS HEREOF IS AN
INCONVENIENT FORUM.


 


[Signature page follows.]


 


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IN WITNESS WHEREOF,
the parties hereto have duly executed and delivered this Guaranty Agreement as
of the day and year first written above.


 


	
   

  	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  VALMONT INDUSTRIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ADMINISTRATIVE AGENT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK OF AMERICA, N.A., as Administrative

  
	
   

  	
   

  	
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael
  B. Delaney

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANC OF
  AMERICA SECURITIES ASIA LIMITED,

  as Singapore Loan Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
							



 


I-1-12

















 


EXHIBIT I-2


 


FORM OF SUBSIDIARY GUARANTY


 


See attached.


 


I-2-1

















 


SUBSIDIARY GUARANTY AGREEMENT


 


THIS SUBSIDIARY GUARANTY AGREEMENT,
dated as of October 16, 2008 (this “Guaranty Agreement”), is being
entered into among EACH OF THE UNDERSIGNED
AND EACH OTHER PERSON WHO SHALL BECOME A
PARTY HERETO BY EXECUTION OF A SUBSIDIARY GUARANTY JOINDER AGREEMENT (each
a “Guarantor” and collectively the “Guarantors”), and BANK OF AMERICA, N.A., as Administrative Agent (in such
capacity, the “Administrative Agent”) for each of the Lenders (as
defined below).  All capitalized terms
used but not otherwise defined herein shall have the meanings ascribed to such
terms in the Credit Agreement.


 


RECITALS:


 


A.                                   Pursuant
to a Credit Agreement dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Valmont industries, Inc., a Delaware corporation (the “Company”),
Valmont Industries Holland BV, a company organized under the laws of The
Netherlands and a Foreign Subsidiary of the Guarantor (“Valmont Holland”),
Valmont Singapore Pte. Ltd., a private limited company organized under the laws
of the Republic of Singapore and a Foreign Subsidiary of the Guarantor (“Valmont
Singapore”), certain other Domestic Subsidiaries of the Company now or hereafter
party thereto, as co-borrowers (such other Domestic Subsidiaries together with
the Company, collectively the “Borrowers” and each a “Borrower”),
Banc of America Securities Asia Limited, as Singapore Loan Agent, the
Administrative Agent, Bank of America, N.A., as L/C Issuer, and the lenders now
or hereafter party thereto (the “Lenders”), the Lenders have agreed to
provide to the Borrowers and the Designated Borrowers (as defined in the Credit
Agreement) a revolving credit facility with a letter of credit sublimit and
swing line facility with a multi-currency sublimit.


 


B.                                     It
is a condition precedent to the Lenders’ obligations to make and maintain such
extensions of credit that the Guarantors shall have executed and delivered this
Guaranty Agreement to the Administrative Agent.


 


C.                                     Each
Guarantor is, directly or indirectly, a wholly owned Subsidiary of the Company
and will materially benefit from such extensions of credit.


 


In order to induce the Lenders to from time to time make and maintain
extensions of credit under the Credit Agreement, the parties hereto agree as
follows:


 


1.                                      Guaranty.  Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably guarantees to the
Administrative Agent for the benefit of the Lenders the payment and performance
in full of the Guaranteed Liabilities (as defined below).  For all purposes of this Guaranty Agreement, “Guaranteed
Liabilities” means:  (a) each
Borrower’s prompt payment in full, when due or declared due and at all such times,
of all Obligations and all other amounts pursuant to the terms of the Credit
Agreement, the Notes, and all other Loan Documents heretofore, now or at any
time or times hereafter owing, arising, due 


 


I-2-2

















 


or payable from any Borrower to any one or more of the Lenders,
including principal, interest, premiums and fees (including all fees and
expenses of counsel (collectively, “Attorneys’ Costs”); and (b) each
Borrower’s prompt, full and faithful performance, observance and discharge of
each and every agreement, undertaking, covenant and provision to be performed,
observed or discharged by any Borrower under the Credit Agreement, the Notes
and all other Loan Documents.  The
Guarantors’ obligations to the Lenders under this Guaranty Agreement are
hereinafter collectively referred to as the “Guarantors’ Obligations”
and, with respect to each Guarantor individually, the “Guarantor’s
Obligations”.  Notwithstanding the
foregoing, the liability of each Guarantor individually with respect to its
Guarantor’s Obligations shall be limited to an aggregate amount equal to the
largest amount that would not render its obligations hereunder subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any applicable state law.


 


Each Guarantor agrees that it is jointly and severally, directly and
primarily liable (subject to the limitation in the immediately preceding
sentence) for the Guaranteed Liabilities.


 


2.                                      Payment.  If
any Borrower shall default in payment or performance of any of the Guaranteed
Liabilities, whether principal, interest, premium, fees (including, but not
limited to, Attorneys’ Costs), or otherwise, when and as the same shall become
due, and after expiration of any applicable grace period, whether according to
the terms of the Credit Agreement, by acceleration, or otherwise, or upon the
occurrence and during the continuance of any Event of Default under the Credit
Agreement, then any or all of the Guarantors will, upon demand thereof by the
Administrative Agent, fully pay to the Administrative Agent, for the benefit of
the Lenders, subject to any restriction on each Guarantor’s Obligations set
forth in Section 1 hereof, an amount equal to all the Guaranteed
Liabilities then due and owing.


 


3.                                      Absolute
Rights and Obligations.  This is
a guaranty of payment and not of collection. 
The Guarantors’ Obligations under this Guaranty Agreement shall be joint
and several, absolute and unconditional irrespective of, and each Guarantor
hereby expressly waives, to the extent permitted by law, any defense to its
obligations under this Guaranty Agreement and all Loan Documents  to
which it is a party by reason of:


 


(a)                                  any lack of legality,
validity or enforceability of the Credit Agreement, of any of the Notes, of any
other Loan Document, or of any other agreement or instrument creating,
providing security for, or otherwise relating to any of the Guarantors’
Obligations, any of the Guaranteed Liabilities, or any other guaranty of any of
the Guaranteed Liabilities (the Loan Documents and all such other agreements
and instruments being collectively referred to as the “Related Agreements”);


 


(b)                                 any action taken under
any of the Related Agreements, any exercise of any right or power therein
conferred, any failure or omission to enforce any right conferred thereby, or
any waiver of any covenant or condition therein provided;


 


(c)                                  any acceleration of
the maturity of any of the Guaranteed Liabilities, of the Guarantor’s
Obligations of any other Guarantor, or of any other obligations or liabilities
of any Person under any of the Related Agreements;


 


I-2-3

















 


(d)                                 any release, exchange,
non-perfection, lapse in perfection, disposal, deterioration in value, or
impairment of any security for any of the Guaranteed Liabilities, for any of
the Guarantor’s Obligations of any Guarantor, or for any other obligations or
liabilities of any Person under any of the Related Agreements;


 


(e)                                  any dissolution of
any Borrower or any Guarantor or any other party to a Related Agreement, or the
combination or consolidation of any Borrower or any Guarantor or any other
party to a Related Agreement into or with another entity or any transfer or
disposition of any assets of any Borrower or any Guarantor or any other party
to a Related Agreement;


 


(f)                                    any extension
(including without limitation extensions of time for payment), renewal,
amendment, restructuring or restatement of, any acceptance of late or partial
payments under, or any change in the amount of any borrowings or any credit
facilities available under, the Credit Agreement, any of the Notes or any other
Loan Document or any other Related Agreement, in whole or in part;


 


(g)                                 the existence,
addition, modification, termination, reduction or impairment of value, or
release of any other guaranty (or security therefor) of the Guaranteed
Liabilities (including without limitation the Guarantor’s Obligations of any
other Guarantor and obligations arising under any other Guaranty now or
hereafter in effect);


 


(h)                                 any waiver of,
forbearance or indulgence under, or other consent to any change in or departure
from any term or provision contained in the Credit Agreement, any other Loan
Document or any other Related Agreement, including without limitation any term
pertaining to the payment or performance of any of the Guaranteed Liabilities,
any of the Guarantor’s Obligations of any other Guarantor, or any of the
obligations or liabilities of any party to any other Related Agreement; or


 


(i)                                     any other
circumstance whatsoever (with or without notice to or knowledge of any
Guarantor) which may or might in any manner or to any extent vary the risks of
such Guarantor, or might otherwise constitute a legal or equitable defense available
to, or discharge of, a surety or a guarantor, including without limitation any
right to require or claim that resort be had to any Borrower or any other Loan
Party or to any collateral in respect of the Guaranteed Liabilities or
Guarantors’ Obligations.


 


It is the express purpose and intent of the parties hereto that this
Guaranty Agreement and the Guarantors’ Obligations hereunder and under each
Subsidiary Guaranty Joinder Agreement shall be absolute and unconditional under
any and all circumstances and shall not be discharged except by payment as
herein provided.


 


4.                                      Currency
and Funds of Payment.  All
Guarantors’ Obligations will be paid in lawful currency of the United States of
America and in immediately available funds, regardless of any law, regulation
or decree now or hereafter in effect that might in any manner affect the
Guaranteed Liabilities, or the rights of any Lender with respect thereto as
against any Borrower, 


 


I-2-4

















 


or cause or permit to be invoked any alteration in the time, amount or
manner of payment by any Borrower of any or all of the Guaranteed Liabilities.


 


5.                                      Events
of Default.  Without limiting the
provisions of Section 2 hereof, in the event that there shall occur
and be continuing an Event of Default, then notwithstanding any collateral or
other security or credit support for the Guaranteed Liabilities, at the
Administrative Agent’s election and without notice thereof or demand therefor,
the Guarantors’ Obligations shall immediately be and become due and payable.


 


6.                                      Subordination.  Until this Guaranty Agreement is terminated
in accordance with Section 22 hereof, each Guarantor hereby
unconditionally subordinates all present and future debts, liabilities or
obligations now or hereafter owing to such Guarantor (a) of any Borrower,
to the payment in full of the Guaranteed Liabilities, (b) of every other
Guarantor (an “obligated guarantor”), to the payment in full of the Guarantors’
Obligations of such obligated guarantor, and (c) of each other Person now
or hereafter constituting a Loan Party, to the payment in full of the
obligations of such Loan Party owing to any Lender and arising under the Loan
Documents.  All amounts due under such
subordinated debts, liabilities, or obligations shall, upon the occurrence and
during the continuance of an Event of Default, be collected and, upon request
by the Administrative Agent, paid over forthwith to the Administrative Agent
for the benefit of the Lenders on account of the Guaranteed Liabilities, the
Guarantors’ Obligations, or such other obligations, as applicable, and, after
such request and pending such payment, shall be held by such Guarantor as agent
and bailee of the Lenders separate and apart from all other funds, property and
accounts of such Guarantor.


 


7.                                      Suits.  Each Guarantor from time to time shall pay to
the Administrative Agent for the benefit of the Lenders, on demand, at the
Administrative Agent’s Office or such other address as the Administrative Agent
shall give notice of to such Guarantor, the Guarantors’ Obligations as they
become or are declared due, and in the event such payment is not made
forthwith, the Administrative Agent may proceed to suit against any one or more
or all of the Guarantors.  At the
Administrative Agent’s election, one or more and successive or concurrent suits
may be brought hereon by the Administrative Agent against any one or more or
all of the Guarantors, whether or not suit has been commenced against any
Borrower, any other Guarantor, or any other Person and whether or not the
Lenders have taken or failed to take any other action to collect all or any
portion of the Guaranteed Liabilities or have taken or failed to take any
actions against any collateral securing payment or performance of all or any
portion of the Guaranteed Liabilities, and irrespective of any event,
occurrence, or condition described in Section 3 hereof.


 


8.                                      Set-Off
and Waiver.  Each Guarantor
waives any right to assert against any Lender as a defense, counterclaim,
set-off, recoupment or cross claim in respect of its Guarantor’s Obligations,
any defense (legal or equitable) or other claim which such Guarantor may now or
at any time hereafter have against any Borrower or any or all of the Lenders
without waiving any additional defenses, set-offs, counterclaims or other
claims otherwise available to such Guarantor. 
Each Guarantor agrees that each Lender shall have a lien for all the
Guarantor’s Obligations upon all deposits or deposit accounts, of any kind, or
any interest in any deposits or deposit accounts, now or hereafter pledged,
mortgaged, transferred or assigned to such Lender or 


 


I-2-5

















 


otherwise in the possession or control of such Lender for any purpose
(other than solely for safekeeping) for the account or benefit of such
Guarantor, including any balance of any deposit account or of any credit of
such Guarantor with the Lender, whether now existing or hereafter established,
and hereby authorizes each Lender from and after the occurrence of an Event of
Default at any time or times with or without prior notice to apply such
balances or any part thereof to such of the Guarantor’s Obligations to the
Lenders then due and in such amounts as provided for in the Credit Agreement or
otherwise as they may elect.  For the
purposes of this Section 8, all remittances and property shall be
deemed to be in the possession of a Lender as soon as the same may be put in
transit to it by mail or carrier or by other bailee.


 


9.                                      Waiver
of Notice; Subrogation.


 


(a)                                  Each Guarantor hereby
waives to the extent permitted by law notice of the following events or
occurrences:  (i) acceptance of this
Guaranty Agreement; (ii) the Lenders’ heretofore, now or from time to time
hereafter making Loans and issuing Letters of Credit and otherwise loaning
monies or giving or extending credit to or for the benefit of any Borrower or
any other Loan Party, or otherwise entering into arrangements with any Loan
Party giving rise to Guaranteed Liabilities, whether pursuant to the Credit
Agreement or the Notes or any other Loan Document or Related Agreement or any
amendments, modifications, or supplements thereto, or replacements or
extensions thereof; (iii) presentment, demand, default, non-payment,
partial payment and protest; and (iv) any other event, condition, or
occurrence described in Section 3 hereof.  Each Guarantor agrees that each Lender may
heretofore, now or at any time hereafter do any or all of the foregoing in such
manner, upon such terms and at such times as each Lender, in its sole and
absolute discretion, deems advisable, without in any way or respect impairing,
affecting, reducing or releasing such Guarantor from its Guarantor’s
Obligations, and each Guarantor hereby consents to each and all of the foregoing
events or occurrences.


 


(b)                                 Each Guarantor hereby
agrees that payment or performance by such Guarantor of its Guarantor’s
Obligations under this Guaranty Agreement may be enforced by the Administrative
Agent on behalf of the Lenders upon demand by the Administrative Agent to such
Guarantor without the Administrative Agent being required, such Guarantor
expressly waiving to the extent permitted by law any right it may have to
require the Administrative Agent, to (i) prosecute collection or seek to
enforce or resort to any remedies against any Borrower or any other Guarantor
or any other guarantor of the Guaranteed Liabilities, or (ii) seek to
enforce or resort to any remedies with respect to any security interests, Liens
or encumbrances granted to the Administrative Agent or any Lender or other
party to a Related Agreement by any Borrower, any other Guarantor or any other
Person on account of the Guaranteed Liabilities or any guaranty thereof, IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH
GUARANTOR THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE
ADMINISTRATIVE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE ADMINISTRATIVE
AGENT, EFFECTIVE AS OF THE FIRST DATE


 


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ANY EVENT
OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT AGREEMENT.


 


(c)                                  Each
Guarantor further agrees with respect to this Guaranty Agreement that it shall
have no right of subrogation, reimbursement, contribution or indemnity, nor any
right of recourse to security for the Guaranteed Liabilities unless and until
93 days immediately following the Facility Termination Date shall have elapsed
without the filing or commencement, by or against any Loan Party, of any state
or federal action, suit, petition or proceeding seeking any reorganization,
liquidation or other relief or arrangement in respect of creditors of, or the
appointment of a receiver, liquidator, trustee or conservator in respect to,
such Loan Party or its assets.  This
waiver is expressly intended to prevent the existence of any claim in respect
to such subrogation, reimbursement, contribution or indemnity by any Guarantor
against the estate of any other Loan Party within the meaning of Section 101
of the Bankruptcy Code, in the event of a subsequent case involving any other
Loan Party.  If an amount shall be paid
to any Guarantor on account of such rights at any time prior to termination of
this Guaranty Agreement in accordance with the provisions of Section 22
hereof, such amount shall be held in trust for the benefit of the Lenders and
shall forthwith be paid to the Administrative Agent, for the benefit of the
Lenders, to be credited and applied upon the Guarantors’ Obligations, whether
matured or unmatured, in accordance with the terms of the Credit Agreement or
otherwise as the Lenders may elect.  The
agreements in this subsection shall survive repayment of all of the Guarantors’
Obligations, the termination or expiration of this Guaranty Agreement in any
manner, including but not limited to termination in accordance with Section 22
hereof, and occurrence of the Facility Termination Date.  For purposes of this Guaranty Agreement, “Facility
Termination Date” means the date as of which all of the following shall
have occurred:  (a) the Aggregate
Commitments have terminated,  (b) all
Obligations have been paid in full (other than contingent indemnification
obligations),  and (c) all Letters of
Credit have terminated or expired (other than Letters of Credit as to which
other arrangements with respect thereto satisfactory to the Administrative
Agent and the L/C Issuer shall have been made).


 


10.                               Effectiveness;
Enforceability.  This Guaranty
Agreement shall be effective as of the date first above written and shall
continue in full force and effect until termination in accordance with Section 22
hereof.  Any claim or claims that the
Lenders may at any time hereafter have against a Guarantor under this Guaranty
Agreement may be asserted by the Administrative Agent on behalf of the Lenders
by written notice directed to such Guarantor in accordance with Section 24
hereof.


 


11.                               Representations
and Warranties.  Each Guarantor
warrants and represents to the Administrative Agent, for the benefit of the
Lenders, that it is duly authorized to execute and deliver this Guaranty
Agreement (or the Subsidiary Guaranty Joinder Agreement to which it is a party,
as applicable), and to perform its obligations under this Guaranty Agreement,
that this Guaranty Agreement (or the Subsidiary Guaranty Joinder Agreement to
which it is a party, as applicable) has been duly executed and delivered on
behalf of such Guarantor by its duly authorized representatives; that this
Guaranty Agreement (and any Subsidiary Guaranty Joinder 


 


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Agreement to which such Guarantor is a party)
is legal, valid, binding and enforceable against such Guarantor in accordance
with its terms except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles;
and that such Guarantor’s execution, delivery and performance of this Guaranty
Agreement (and any Subsidiary Guaranty Joinder Agreement to which such
Guarantor is a party) do not violate or constitute a breach of any of its
Organization Documents, any agreement or instrument to which such Guarantor is
a party, or any law, order, regulation, decree or award of any governmental
authority or arbitral body to which it or its properties or operations is
subject.


 


12.                               Expenses.  Each Guarantor agrees to be jointly and
severally liable for the payment of all reasonable fees and expenses, including
Attorneys’ Costs, incurred by any Lender in connection with the enforcement of
this Guaranty Agreement, whether or not suit be brought.


 


13.                               Reinstatement.  Each Guarantor agrees that this Guaranty
Agreement shall continue to be effective or be reinstated, as the case may be,
at any time payment received by any Lender in respect of any Guaranteed
Liabilities is rescinded or must be restored for any reason, or is repaid by
any Lender in whole or in part in good faith settlement of any pending or
threatened avoidance claim.


 


14.                               Attorney-in-Fact.  To the extent permitted by law, each
Guarantor hereby appoints the Administrative Agent, for the benefit of the
Lenders, as such Guarantor’s attorney-in-fact for the purposes of carrying out
the provisions of this Guaranty Agreement and taking any action and executing
any instrument which the Administrative Agent may deem necessary or advisable
to accomplish the purposes hereof, which appointment is coupled with an
interest and is irrevocable; provided, that the Administrative Agent
shall have and may exercise rights under this power of attorney only upon the
occurrence and during the continuance of an Event of Default.


 


15.                               Reliance.  Each Guarantor represents and warrants to the
Administrative Agent, for the benefit of the Lenders, that:  (a) such Guarantor has adequate means to
obtain on a continuing basis (i) from the Company, information concerning
the Loan Parties and the Loan Parties’ financial condition and affairs and (ii) from
other reliable sources, such other information as it deems material in deciding
to provide this Guaranty Agreement and any Subsidiary Guaranty Joinder
Agreement (“Other Information”), and has full and complete access to the
Loan Parties’ books and records and to such Other Information; (b) such
Guarantor is not relying on any Lender or its or their employees, directors,
agents or other representatives or Affiliates, to provide any such information,
now or in the future; (c) such Guarantor has been furnished with and
reviewed the terms of the Credit Agreement and such other Loan Documents and
Related Agreements as it has requested, is executing this Guaranty Agreement
(or the Subsidiary Guaranty Joinder Agreement to which it is a party, as
applicable) freely and deliberately, and understands the obligations and
financial risk undertaken by providing this Guaranty Agreement (and any
Subsidiary Guaranty Joinder Agreement); (d) such Guarantor has relied
solely on the Guarantor’s own independent investigation, appraisal and analysis
of each Borrower, each Borrower’s financial condition and affairs, the Other
Information, and such other matters as it deems material in deciding to provide
this Guaranty Agreement (and any Subsidiary 


 


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Guaranty Joinder Agreement) and is fully
aware of the same; and (e) such Guarantor has not depended or relied on
any Lender or its or their employees, directors, agents or other
representatives or Affiliates, for any information whatsoever concerning any
Borrower or any Borrower’s financial condition and affairs or any other matters
material to such Guarantor’s decision to provide this Guaranty Agreement (and
any Subsidiary Guaranty Joinder Agreement), or for any counseling, guidance, or
special consideration or any promise therefor with respect to such
decision.  Each Guarantor agrees that no
Lender has any duty or responsibility whatsoever, now or in the future, to
provide to such Guarantor any information concerning any Borrower or any
Borrower’s financial condition and affairs, or any Other Information, other
than as expressly provided herein, and that, if such Guarantor receives any
such information from any Lender or its or their employees, directors, agents
or other representatives or Affiliates, such Guarantor will independently
verify the information and will not rely on any Lender or its or their
employees, directors, agents or other representatives or Affiliates, with
respect to such information.


 


16.                               Rules of
Interpretation.  The rules of
interpretation contained in Article I of the Credit Agreement shall
be applicable to this Guaranty Agreement and each Subsidiary Guaranty Joinder
Agreement and are hereby incorporated by reference.  All representations and warranties contained
herein shall survive the delivery of documents and any extension of credit
referred to herein or guaranteed hereby.


 


                                                17.                               Entire
Agreement.  This Guaranty
Agreement and each Subsidiary Guaranty Joinder Agreement, together with the
Credit Agreement and other Loan Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior negotiations, agreements, understandings,
inducements, commitments or conditions, express or implied, oral or written,
except as herein contained.  The express terms
hereof control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof. 
Except as provided in Section 22, neither this Guaranty
Agreement nor any Subsidiary Guaranty Joinder Agreement nor any portion or
provision hereof or thereof may be changed, altered, modified, supplemented,
discharged, canceled, terminated, or amended orally or in any manner other than
as provided in the Credit Agreement.


 


18.                               Binding
Agreement; Assignment.  This
Guaranty Agreement, each Subsidiary Guaranty Joinder Agreement and the terms,
covenants and conditions hereof and thereof, shall be binding upon and inure to
the benefit of the parties hereto and thereto, and to their respective heirs,
legal representatives, successors and assigns; provided, however,
that no Guarantor shall be permitted to assign any of its rights, powers,
duties or obligations under this Guaranty Agreement, any Subsidiary Guaranty
Joinder Agreement or any other interest herein or therein without the prior
written consent of the Administrative Agent. 
Without limiting the generality of the foregoing sentence of this Section 18,
any Lender may assign to one or more Persons, or grant to one or more Persons
participations in or to, all or any part of its rights and obligations under
the Credit Agreement (to the extent permitted by the Credit Agreement); and to
the extent of any such assignment or participation such other Person shall, to
the fullest extent permitted by law, thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise, subject
however, to the provisions of the Credit Agreement, including Article IX
thereof (concerning the Administrative Agent) and Section 10.06
thereof concerning 


 


I-2-9

















 


assignments and participations.  All references herein to the Administrative
Agent shall include any successor thereof.


 


19.       [Intentionally
Left Blank].


 


20.                               Severability.  The provisions of this Guaranty Agreement are
independent of and separable from each other. 
If any provision hereof shall for any reason be held invalid or
unenforceable, such invalidity or unenforceability shall not affect the
validity or enforceability of any other provision hereof, but this Guaranty
Agreement shall be construed as if such invalid or unenforceable provision had
never been contained herein.


 


21.                               Counterparts.  This Guaranty Agreement may be executed in
any number of counterparts each of which when so executed and delivered shall
be deemed an original, and it shall not be necessary in making proof of this
Guaranty Agreement to produce or account for more than one such counterpart
executed by the Guarantors against whom enforcement is sought.  Without limiting the foregoing provisions of this
Section 21, the provisions of Section 10.10 of the
Credit Agreement shall be applicable to this Guaranty Agreement.


 


22.                               Termination.  Subject to reinstatement pursuant to Section 13
hereof, this Guaranty Agreement and each Subsidiary Guaranty Joinder Agreement,
and all of the Guarantors’ Obligations hereunder (excluding those Guarantors’
obligations relating to Guaranteed Liabilities that expressly survive such
termination) shall terminate on the Facility Termination Date.


 


23.                               Remedies
Cumulative; Late Payments.  All
remedies hereunder are cumulative and are not exclusive of any other rights and
remedies of the Administrative Agent or any other Lender provided by law or
under the Credit Agreement, the other Loan Documents or other applicable
agreements or instruments.  The making of
the Loans and other credit extensions pursuant to the Credit Agreement and
other Related Agreements shall be conclusively presumed to have been made or
extended, respectively, in reliance upon each Guarantor’s guaranty of the
Guaranteed Liabilities pursuant to the terms hereof.  Any amounts not paid when due under this
Guaranty Agreement shall bear interest at the Default Rate.


 


24.                               Notices.  Any notice required or permitted hereunder or
under any Subsidiary Guaranty Joinder Agreement shall be given, (a) with
respect to each Guarantor, at the address of the Company indicated in Schedule
10.02 of the Credit Agreement  and (b) with
respect to the Administrative Agent or any other Lender, at the Administrative
Agent’s address indicated in Schedule 10.02 of the Credit Agreement.  All such addresses may be modified, and all
such notices shall be given and shall be effective, as provided in Section 10.02
of the Credit Agreement for the giving and effectiveness of notices and
modifications of addresses thereunder.


 


25.                               Joinder.  Each Person that shall at any time
execute and deliver to the Administrative Agent a Subsidiary Guaranty Joinder
Agreement substantially in the form attached as Exhibit A hereto
shall thereupon irrevocably, absolutely and unconditionally become a party
hereto and obligated hereunder as a Guarantor, and all references herein and in
the other


 


I-2-10

















 


Loan Documents to the Guarantors or to the
parties to this Guaranty Agreement shall be deemed to include such Person as a
Guarantor hereunder.


 


26.                               Governing
Law; Venue; Waiver of Jury Trial.


 


(a)                                  THIS
GUARANTY AGREEMENT AND EACH SUBSIDIARY GUARANTY JOINDER AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.


 


(b)                                  EACH
GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND CONSENTS THAT ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR
ANY SUBSIDIARY GUARANTY JOINDER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREIN OR THEREIN MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING
IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA AND, BY
THE EXECUTION AND DELIVERY OF THIS GUARANTY AGREEMENT OR A SUBSIDIARY GUARANTY
JOINDER AGREEMENT, SUCH GUARANTOR EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION
OVER IT AND ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING, AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION
OR PROCEEDING.


 


(c)                                  EACH
GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY PERSONAL SERVICE
OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT,
ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO
THE ADDRESS FOR NOTICES TO SUCH GUARANTOR IN EFFECT PURSUANT TO SECTION 24
HEREOF, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE
LAWS IN EFFECT IN THE STATE OF NEW YORK.


 


(d)                                  NOTHING
CONTAINED IN SUBSECTIONS (b) or (c) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR ANY SUBSIDIARY
GUARANTY JOINDER AGREEMENT OR ANY OTHER LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE ANY GUARANTOR OR ANY OF SUCH GUARANTOR’S PROPERTY OR ASSETS MAY BE
FOUND OR LOCATED.  TO THE EXTENT PERMITTED
BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH GUARANTOR HEREBY
IRREVOCABLY SUBMITS


 


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TO THE
JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH
SUIT, ACTION OR PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT
AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE
AVAILABLE UNDER APPLICABLE LAW.


 


(e)                                  IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER OR
RELATED TO THIS GUARANTY AGREEMENT OR ANY SUBSIDIARY GUARANTY JOINDER AGREEMENT
OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, EACH GUARANTOR AND THE
ADMINISTRATIVE AGENT ON BEHALF OF THE SECURED PARTIES HEREBY AGREE, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT ANY SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.


 


(f)                                    EACH
GUARANTOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY HAVE THAT ANY COURT
TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO THE TERMS HEREOF IS AN
INCONVENIENT FORUM.


 


[Signature pages follow.]


 


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IN WITNESS
WHEREOF, the parties hereto have duly executed and
delivered this Subsidiary Guaranty Agreement as of the day and year first
written above.


 


	
   

  	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PIROD, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  VALMONT COATINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  VALMONT NEWMARK, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


Signature Page


 


I-2-13

















 


	
   

  	
   

  	
  ADMINISTRATIVE AGENT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael B. Delaney

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


Signature Page


 


I-2-14

















 


EXHIBIT A


 


Form of Subsidiary Guaranty Joinder
Agreement


 


SUBSIDIARY GUARANTY JOINDER AGREEMENT


 


THIS
SUBSIDIARY GUARANTY JOINDER AGREEMENT, dated as of
                          ,
20     (this “Subsidiary Guaranty Joinder Agreement”),
is made by                                                               ,
a
                                
(the “Joining Guarantor”), in favor of BANK
OF AMERICA, N.A., in its capacity as Administrative Agent for the
Lenders (as such terms are defined in the Guaranty Agreement referenced below;
all capitalized terms used but not defined herein shall have the meanings given
to such terms in such Guaranty Agreement).


 


RECITALS:


 


A.                                   Certain
Subsidiaries of Valmont Industries, Inc., a Delaware corporation (the “Company”),
are party to a Subsidiary Guaranty Agreement dated as of October 16, 2008
(as in effect on the date hereof, the “Guaranty Agreement”).


 


B.                                     The
Joining Guarantor is a Subsidiary of the Borrower and is required by the terms
of the Credit Agreement to be joined as a party to the Guaranty Agreement as a
Guarantor.


 


C.                                     The
Joining Guarantor will materially benefit directly and indirectly from the
making and maintenance of the extensions of credit made from time to time under
the Credit Agreement.


 


In order to induce the Lenders to from
time to time make and maintain extensions of credit under the Credit Agreement,
the Joining Guarantor hereby agrees as follows:


 


1.                                      Joinder.  The Joining Guarantor hereby irrevocably,
absolutely and unconditionally becomes a party to the Guaranty Agreement as a
Guarantor and bound by all the terms, conditions, obligations, liabilities and
undertakings of each Guarantor or to which each Guarantor is subject
thereunder, including without limitation the joint and several, unconditional,
absolute, continuing and irrevocable guarantee to the Administrative Agent for
the benefit of the Lenders of the payment and performance in full of the
Guaranteed Liabilities (as defined in the Guaranty Agreement) whether now
existing or hereafter arising, all with the same force and effect as if the
Joining Guarantor were a signatory to the Guaranty Agreement.


 


2.                                      Affirmations.  The Joining Guarantor hereby acknowledges and
reaffirms as of the date hereof with respect to itself, its properties and its
affairs each of the waivers, representations, warranties, acknowledgements and
certifications applicable to any Guarantor contained in the Guaranty Agreement.


 


I-2-15

















 


3.                                      Severability.  The provisions of this Subsidiary Guaranty
Joinder Agreement are independent of and separable from each other.  If any provision hereof shall for any reason
be held invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity or enforceability of any other provision hereof, but this
Subsidiary Guaranty Joinder Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.


 


4.                                      Counterparts.  This Subsidiary Guaranty Joinder Agreement
may be executed in any number of counterparts each of which when so executed
and delivered shall be deemed an original, and it shall not be necessary in
making proof of this Subsidiary Guaranty Joinder Agreement to produce or
account for more than one such counterpart executed by the Joining Guarantor.  Without limiting the foregoing provisions of
this Section 4, the provisions of Section 10.10 of the
Credit Agreement shall be applicable to this Subsidiary Guaranty Joinder
Agreement.


 


5.                                      Delivery.  The Joining
Guarantor hereby irrevocably waives notice of acceptance of this Subsidiary Guaranty
Joinder Agreement and acknowledges that the Guaranteed Liabilities are and
shall be deemed to be incurred, and credit extensions under the Loan Documents
made and maintained, in reliance on this Subsidiary Guaranty Joinder Agreement
and the Joining Guarantor’s joinder as a party to the Guaranty Agreement as
herein provided.


 


6.                                      Governing Law; Venue; Waiver of Jury Trial.  The provisions of Section 26
of the Guaranty Agreement are hereby incorporated by reference as if fully set
forth herein.


 


[Signature page follows.]


 


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IN WITNESS
WHEREOF, the Joining Guarantor has duly executed and
delivered this Subsidiary Guaranty Joinder Agreement as of the day and year
first written above.


 


	
   

  	
   

  	
  JOINING GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


I-2-17