EX-10.01






EXHIBIT 10.01




$325,000,000




SECOND AMENDED AND RESTATED CREDIT AGREEMENT




dated as of

October 24, 2008




among




MARTIN MARIETTA MATERIALS, INC.,




The LENDERS Listed Herein,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,




and




BANK OF AMERICA, N.A.,

BRANCH BANKING AND TRUST COMPANY,

WACHOVIA BANK, NATIONAL ASSOCIATION

and

WELLS FARGO BANK, N.A.,




as Co-Syndication Agents




 






J.P. Morgan Securities Inc.,

Lead Arranger and Sole Bookrunner




 









 





TABLE OF CONTENTS




 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1

	Definitions

	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Accounting Terms and Determinations
	 	 	14	 
	Section 1.03. Types of Borrowings
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 2

	The Loans

	 
	 	 	 	 
	Section 2.01. Commitments to Lend; Extensions
	 	 	14	 
	Section 2.02. Notice of Committed Borrowing
	 	 	16	 
	Section 2.03. Competitive Bid Borrowings
	 	 	16	 
	Section 2.04. Notice to Lenders; Funding of Loans
	 	 	20	 
	Section 2.05. Registry; Notes
	 	 	21	 
	Section 2.06. Maturity of Loans
	 	 	21	 
	Section 2.07. Interest Rates
	 	 	22	 
	Section 2.08. Mandatory Termination of Commitment
	 	 	23	 
	Section 2.09. Optional Prepayments
	 	 	23	 
	Section 2.10. General Provisions as to Payments
	 	 	24	 
	Section 2.11. Fees
	 	 	25	 
	Section 2.12. Reduction or Termination of Commitments
	 	 	25	 
	Section 2.13. Method of Electing Interest Rates
	 	 	25	 
	Section 2.14. Funding Losses
	 	 	27	 
	Section 2.15. Computation of Interest and Fees
	 	 	27	 
	Section 2.16. Letters of Credit
	 	 	27	 
	Section 2.17. Increased Commitments; Additional Lenders
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 3

	Conditions

	 
	 	 	 	 
	Section 3.01. Effectiveness
	 	 	33	 
	Section 3.02. Borrowings and Issuances of Letters of Credit
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 4

	Representations and Warranties

	 
	 	 	 	 
	Section 4.01. Corporate Existence and Power
	 	 	34	 
	Section 4.02. Corporate Authorization; No Contravention
	 	 	35	 
	Section 4.03. Binding Effect
	 	 	35	 
	Section 4.04. Financial Information
	 	 	35	 






 









 






	 	 	 	 	 
	 	 	Page	 
	Section 4.05. Litigation
	 	 	36	 
	Section 4.06. Taxes
	 	 	36	 
	Section 4.07. Margin Regulations
	 	 	36	 
	Section 4.08. Compliance with Laws
	 	 	36	 
	Section 4.09. Governmental Approvals
	 	 	36	 
	Section 4.10. Pari Passu Obligations
	 	 	36	 
	Section 4.11. No Defaults
	 	 	36	 
	Section 4.12. Full Disclosure
	 	 	36	 
	Section 4.13. ERISA
	 	 	37	 
	Section 4.14. Environmental Matters
	 	 	37	 
	Section 4.15. Regulatory Restrictions on Borrowing
	 	 	37	 
	 
	 	 	 	 
	ARTICLE 5

	Covenants

	 
	 	 	 	 
	Section 5.01. Information
	 	 	38	 
	Section 5.02. Payment of Obligations
	 	 	39	 
	Section 5.03. Insurance
	 	 	39	 
	Section 5.04. Maintenance of Existence
	 	 	39	 
	Section 5.05. Maintenance of Properties
	 	 	40	 
	Section 5.06. Compliance with Laws
	 	 	40	 
	Section 5.07. Mergers, Consolidations and Sales of Assets
	 	 	40	 
	Section 5.08. Negative Pledge
	 	 	41	 
	Section 5.09. Leverage Ratio
	 	 	42	 
	Section 5.10. Use of Loans
	 	 	43	 
	Section 5.11. Investments
	 	 	43	 
	Section 5.12. Transactions with Affiliates
	 	 	44	 
	 
	 	 	 	 
	ARTICLE 6

	Defaults

	 
	 	 	 	 
	Section 6.01. Event of Default
	 	 	44	 
	Section 6.02. Cash Cover
	 	 	46	 
	 
	 	 	 	 
	ARTICLE 7

	The Administrative Agent

	 
	 	 	 	 
	Section 7.01. Appointment and Authorization
	 	 	47	 
	Section 7.02. Administrative Agent and Affiliates
	 	 	47	 
	Section 7.03. Action by Administrative Agent
	 	 	47	 
	Section 7.04. Consultation with Experts
	 	 	47	 
	Section 7.05. Liability of Administrative Agent
	 	 	47	 
	Section 7.06. Indemnification
	 	 	48	 
	Section 7.07. Credit Decision
	 	 	48	 
	Section 7.08. Successor Administrative Agents
	 	 	48	 
	Section 7.09. Administrative Agent’s Fees
	 	 	49	 
	Section 7.10. Other Agents
	 	 	49	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 8

	Change in Circumstances

	 
	 	 	 	 
	Section 8.01. Increased Cost and Reduced Return; Capital Adequacy
	 	 	49	 
	Section 8.02. Substitute Rate
	 	 	51	 
	Section 8.03. Illegality
	 	 	51	 
	Section 8.04. Taxes on Payments
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 9

	Miscellaneous

	 
	 	 	 	 
	Section 9.01. Termination of Commitment of a Lender; New Lenders
	 	 	54	 
	Section 9.02. Notices
	 	 	55	 
	Section 9.03. No Waivers
	 	 	55	 
	Section 9.04. Expenses; Indemnification
	 	 	56	 
	Section 9.05. Pro Rata Treatment
	 	 	56	 
	Section 9.06. Sharing of Set-offs
	 	 	56	 
	Section 9.07. Amendments and Waivers
	 	 	57	 
	Section 9.08. Successors and Assigns; Participations; Novation
	 	 	57	 
	Section 9.09. Visitation
	 	 	60	 
	Section 9.10. Collateral
	 	 	60	 
	Section 9.11. Reference Banks
	 	 	60	 
	Section 9.12. Governing Law; Submission to Jurisdiction
	 	 	61	 
	Section 9.13. Counterparts; Integration
	 	 	61	 
	Section 9.14. WAIVER OF JURY TRIAL
	 	 	61	 
	Section 9.15. Confidentiality
	 	 	61	 
	Section 9.16. USA Patriot Act
	 	 	62	 






iii









 






	 	 	 	 	 
	 
	 	 	 	 
	COMMITMENT SCHEDULE
	 
	 	 	 	 
	SCHEDULE I
	 	–	 	Pricing
	SCHEDULE 5.11(c)
	 	–	 	Investments
	SCHEDULE 5.11(d)
	 	–	 	Related Businesses
	 
	EXHIBIT A
	 	–	 	Note
	EXHIBIT B
	 	–	 	Competitive Bid Quote Request
	EXHIBIT C
	 	–	 	Invitation for Competitive Bid Quotes
	EXHIBIT D
	 	–	 	Competitive Bid Quote
	EXHIBIT E
	 	–	 	[Reserved]
	EXHIBIT F
	 	–	 	[Reserved]
	EXHIBIT G
	 	–	 	Assignment and Assumption Agreement
	EXHIBIT H
	 	–	 	Compliance Certificate
	EXHIBIT I
	 	–	 	Extension Agreement






iv









 






SECOND AMENDED AND RESTATED CREDIT AGREEMENT



AGREEMENT dated as of October 24, 2008 among MARTIN MARIETTA MATERIALS, INC., the LENDERS listed on
the signature pages hereof and JPMORGAN CHASE BANK, N.A., as Administrative Agent, and BANK OF
AMERICA, N.A., BRANCH BANKING AND TRUST COMPANY, WACHOVIA BANK, NATIONAL ASSOCIATION and WELLS
FARGO BANK, N.A., as Co-Syndication Agents.




W I T N
E S S E T H :




     WHEREAS, the parties hereto have heretofore entered into a Five-Year Credit Agreement dated as
of June 30, 2005 (the “Original Agreement”) and an amendment and restatement thereof dated as of
April 10, 2008 (the “Existing Agreement”);



     WHEREAS, the parties hereto desire to amend the Existing Agreement as set forth herein and to
restate the Existing Agreement in its entirety to read as set forth below;



     NOW, THEREFORE, the parties hereto agree as follows:



ARTICLE 1

Definitions




     Section 1.01. Definitions. The following terms, as used herein and in any Exhibit or
Schedule hereto, have the following meanings:



     “Absolute Rate Auction” means a solicitation of Competitive Bid Quotes setting forth
Competitive Bid Absolute Rates pursuant to Section 2.03.



     “Additional Lender” has the meaning set forth in Section 2.17(b).



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



     “Administrative Questionnaire” means, with respect to each Lender, an administrative
questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative
Agent with a copy to the Borrower duly completed by such Lender.




 









 





     “Affiliate” means (i) any Person that directly, or indirectly through one or more
intermediaries, controls the Borrower (a “Controlling
Person”) or (ii) any Person (other than the Borrower or a Subsidiary) which is controlled by or is under common
control with a Controlling Person. As used herein, the term “control” means possession, directly
or indirectly, of the power to vote 10% or more of any class of voting securities of a Person or to
direct or cause the direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.




     “Agents” means the Administrative Agent and the Co-Syndication Agents.



     “Agreement” means the Existing Agreement, as amended by this Amended Agreement, and as the
same may be further amended from time to time after the date hereof.



     “Amended Agreement” means this Second Amended and Restated Credit Agreement dated as of
October 24, 2008.



     “Applicable Lending Office” means, with respect to any Lender, (i) in the case of its Base
Rate Loans, its Domestic Lending Office, (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar
Lending Office and (iii) in the case of its Competitive Bid Loans, its Competitive Bid Lending
Office.



     “Assignee” has the meaning set forth in Section 9.08(c).



     “Assignment and Assumption Agreement” means an agreement, substantially in the form of Exhibit
G hereto, under which an interest of a Lender hereunder is transferred to an Assignee pursuant to
Section 9.08(c) hereof.



     “Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate
in effect on such day, (b) the Federal Funds Rate in effect on such day plus 1/2 of 1% and (c) the
London Interbank Offered Rate for a one month Interest Period on such day (or if such day is not a
Euro-Dollar Business Day, the immediately preceding Euro-Dollar Business Day) plus 1%, provided
that for the avoidance of doubt, such London Interbank Offered Rate for any day shall be based on
the rate appearing on the Reuters BBA Libor Rates Page 3750 (or on any successor or substitute page
of such page) at approximately 11:00 A.M., London time, on such day. Any change in the Base Rate
due to a change in the Prime Rate or the Federal Funds Rate shall be effective from and including
the effective date of such change in the Prime Rate or the Federal Funds Rate, respectively.



     “Base Rate Loan” means a Committed Loan which bears interest at the Base Rate pursuant to the
applicable Notice of Committed Borrowing or Notice of Interest Rate Election or the provisions of
Section 2.16(c)(ii) or Article 8.




2









 





     “Borrower” means Martin Marietta Materials, Inc., a North Carolina corporation.



     “Borrower’s Latest Form 10-Q” means the Borrower’s quarterly report on Form 10-Q for the
quarter ended June 30, 2008, as filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.



     “Change in Law” means, for purposes of Section 8.01 and Section 8.03, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any such authority, central bank or
comparable agency.



     “Commitment” means (i) with respect to each Lender listed on the Commitment Schedule, the
amount set forth opposite the name of such Lender on the Commitment Schedule and (ii) with respect
to each Additional Lender or Assignee which becomes a Lender pursuant to Section 2.17 or 9.08(c),
the amount of the Commitment thereby assumed by it, in each case as such amount may be changed from
time to time pursuant to Section 2.09, 2.17 or 9.08(c).



     “Commitment Schedule” means the Commitment Schedule attached hereto.



     “Committed Loan” means a loan made by a Lender pursuant to Section 2.01; provided that, if any
such loan or loans (or portions thereof) are combined or subdivided pursuant to a Notice of
Interest Rate Election, the term Committed Loan shall refer to the combined principal amount
resulting from such combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.



     “Competitive Bid Absolute Rate” has the meaning set forth in Section 2.03(d).



     “Competitive Bid Absolute Rate Loan” means a loan to be made by a Lender pursuant to an
Absolute Rate Auction.



     “Competitive Bid Lending Office” means, as to each Lender, its Domestic Lending Office or such
other office, branch or affiliate of such Lender as it may hereafter designate as its Competitive
Bid Lending Office by notice to the Borrower and the Administrative Agent; provided that any Lender
may from time to time by notice to the Borrower and the Administrative Agent designate separate
Competitive Bid Lending Offices for its Competitive Bid LIBOR Loans, on the one hand, and its
Competitive Bid Absolute Rate Loans, on the other hand, in which case all references herein to the
Competitive Bid Lending Office of such Lender shall be deemed to refer to either or both of such
offices, as the context may require.



3









 





     “Competitive Bid LIBOR Loan” means a loan to be made by a Lender pursuant to a LIBOR Auction
(including such a loan bearing interest at the Base Rate pursuant to Section 8.03).



     “Competitive Bid Loan” means a Competitive Bid LIBOR Loan or a Competitive Bid Absolute Rate
Loan.



     “Competitive Bid Margin” has the meaning set forth in Section 2.03(d)(ii)(C).



     “Competitive Bid Quote” means an offer by a Lender, in substantially the form of Exhibit D
hereto, to make a Competitive Bid Loan in accordance with Section 2.03.



     “Competitive Bid Quote Request” means the notice, in substantially the form of Exhibit B
hereto, to be delivered by the Borrower in accordance with Section 2.03 in requesting Competitive
Bid Quotes.



     “Consolidated Debt” means at any date the Debt of the Borrower and its Consolidated
Subsidiaries, determined on a consolidated basis as of such date.



     “Consolidated EBITDA” means, for any period, net income (or net loss) (before discontinued
operations) plus the sum of (a) consolidated interest expense, (b) income tax expense, (c)
depreciation expense, (d) amortization expense, (e) depletion expense, (f) stock based compensation
expense and (g) any non-cash losses or expenses from any unusual, extraordinary or otherwise
non-recurring items as reasonably determined by the Borrower, and minus (x) consolidated interest
income and (y) the sum of the amounts for such period of any income tax benefits and any income or
gains from any unusual, extraordinary or otherwise non-recurring items as reasonably determined by
the Borrower, in each case determined on a consolidated basis for the Borrower and its
Subsidiaries in accordance with GAAP and in the case of items (a) through (g) and items (x) and
(y), to the extent such amounts were included in the calculation of net income. For the purpose of
calculating Consolidated EBITDA for any period, if during such period the Borrower or any
Subsidiary shall have made an acquisition or a disposition, Consolidated EBITDA for such period
shall be calculated after giving pro forma effect thereto as if such acquisition or disposition, as
the case may be, occurred on the first day of such period.



     “Consolidated Net Worth” means at any date the consolidated shareholders’ equity of the
Borrower and its Consolidated Subsidiaries which would be reported on the consolidated balance
sheet of the Borrower as total shareholders’ equity, determined as of such date.




4









 





     “Consolidated Subsidiary” means at any date any Subsidiary or other entity the accounts of
which would be consolidated with the Borrower in its consolidated financial statements if such statements were prepared as of such date.




     “Co-Syndication Agents” means Bank of America, N.A., Branch Banking and Trust
Company, Wachovia Bank, National Association and Wells Fargo Bank, N.A., and “Co-Syndication Agent”
means any of them, in their capacity as co-syndication agents in respect of this Agreement.



     “Credit Exposure” means, with respect to any Lender at any time, (i) the amount of its
Commitment (whether used or unused) at such time or (ii) if the Commitments have terminated in
their entirety, the sum of the aggregate principal amount of its Loans at such time plus its Letter
of Credit Liabilities at such time.



     “Debt” of any Person means at any date, without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in accordance with
generally accepted accounting principles, (v) all non-contingent obligations of such Person to
reimburse any bank or other Person in respect of amounts paid under a letter of credit, banker’s
acceptance, bank guarantee or similar instrument which remain unpaid for two Business Days, (vi)
all Debt secured by a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person provided that the amount of such Debt which is not otherwise an
obligation of such Person shall be deemed to be the fair market value of such asset and (vii) all
Debt of others guaranteed by such Person.



     “Default” means any condition or event which constitutes an Event of Default or which with the
giving of notice or lapse of time or both would, unless cured or waived, become an Event of
Default.



     “Derivatives Obligations” of any Person means all obligations of such Person in respect of any
rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any other similar transaction
(including any option with respect to any of the foregoing transactions) or any combination of the
foregoing transactions.



     “Dollars” or “$” means lawful currency of the United States.




5









 





     “Domestic Business Day” means any day except a Saturday, Sunday or other day on which
commercial banks in New York City are authorized by law to close.



     “Domestic Lending Office” means, as to each Lender, its office located at its address set
forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its
Domestic Lending Office) or such other office as such Lender may hereafter designate as its
Domestic Lending Office by notice to the Borrower and the Administrative Agent.



     “Effective Date” means the date this Amended Agreement becomes effective in accordance with
Section 3.01.



     “Eligible Institution” means any commercial bank having total assets in excess of
$3,000,000,000 (or the equivalent amount in the local currency of such bank) as determined by the
Administrative Agent based on its most recent publicly available financial statements of such bank.



     “Environmental Laws” means any and all applicable federal, state and local statutes,
regulations, ordinances, rules, administrative orders, consent decrees, permits, concessions,
grants, franchises, licenses, agreements or other governmental restrictions relating to the
environment or to emissions, discharges or releases of pollutants, contaminants, hazardous
substances, or hazardous wastes into the environment including, without limitation, ambient air,
surface water, ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants,
hazardous substances, or hazardous wastes.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.



     “ERISA Group” means the Borrower and all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control that, together with the
Borrower, are treated as a single employer under Section 4001(a)(14) of ERISA.



     “Euro-Dollar Business Day” means any Domestic Business Day on which commercial banks are open
for international business (including dealings in dollar deposits) in London.



     “Euro-Dollar Loan” means any Committed Loan in respect of which interest is to be computed on
the basis of a Euro-Dollar Rate.



     “Euro-Dollar Lending Office” means, as to each Lender, its office, branch or affiliate located
at its address set forth in its Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice to the Borrower
and the Administrative Agent.



6









 





     “Euro-Dollar Margin” means the percentage determined in accordance with the Pricing Schedule.



     “Euro-Dollar Rate” means a rate of interest determined pursuant to Section 2.07(b) on the
basis of an London Interbank Offered Rate.



     “Event of Default” has the meaning set forth in Section 6.01.



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



     “Existing Agreement” has the meaning set forth in the recitals hereto.



     “Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if necessary, to
the nearest 1/100th of 1%) 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 Domestic Business Day next
succeeding such day, provided that (i) if such day is not a Domestic Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and (ii) if no such rate
is so published on such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.



     “Fixed Rate Loans” means Euro-Dollar Loans or Competitive Bid Loans (excluding Competitive Bid
LIBOR Loans bearing interest at the Base Rate pursuant to Section 8.03) or both.



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any
entity exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.



     “Group of Loans” means at any time a group of Loans consisting of (i) all Committed Loans
which are Base Rate Loans at such time or (ii) all Euro-Dollar Loans having the same Interest
Period at such time, provided that, if a Committed Loan of any particular Lender is converted to or
made as a Base Rate Loan pursuant to Article 8, such Loan shall be included in the same Group or
Groups of Loans from time to time as it would have been in if it had not been so converted or made.




7









 





     “Interest Period” means:



     (1) with respect to each Euro-Dollar Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or on the date specified in the
applicable Notice of Interest Rate Election and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable notice; provided that:




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




     (b) any Interest Period which begins on the last Euro-Dollar 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, subject to the
further proviso below, end on the last Euro-Dollar Business Day of a calendar
month;




     (2) with respect to each Competitive Bid LIBOR Loan, the period commencing on the
date of borrowing specified in the applicable Notice of Borrowing and ending such whole
number of months thereafter as the Borrower may elect in accordance with Section 2.03;
provided that:




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




     (b) any Interest Period which begins on the last Euro-Dollar 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, subject to the
further proviso below, end on the last Euro-Dollar Business Day of a calendar
month;




     (3) with respect to each Competitive Bid Absolute Rate Loan, the period commencing on
the date of borrowing specified in the applicable Notice of Borrowing and ending such
number of days thereafter (but not less than seven days) as the Borrower may elect in
accordance with Section 2.03; provided that any Interest Period which would



8









 





otherwise end
on a day which is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and



provided further that any Interest Period which would otherwise end after the Termination Date
shall end on the Termination Date.




     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, or any successor
statute.



     “Investment” means any investment in any Person, whether by means of share purchase, capital
contribution, loan, guarantee, time deposit or otherwise (but not including any demand deposit).



     “Invitation for Competitive Bid Quotes” means the notice substantially in the form of Exhibit
C hereto to the Lenders in connection with the solicitation by the Borrower of Competitive Bid
Quotes.



     “Issuing Lender” means JPMorgan Chase Bank, N.A. and any other Lender that may agree to issue
letters of credit hereunder pursuant to an instrument in form satisfactory to the Borrower, such
Lender and the Administrative Agent, in each case in its capacity as issuer of a Letter of Credit
hereunder. An Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to
be issued by affiliates of such Issuing Lender, in which case the term “Issuing Lender”
shall include any such affiliate with respect to Letters of Credit issued by such affiliate.



     “Lender” means (i) each Person listed as a Lender on the signature pages hereof, (ii) each
Additional Lender or Assignee that becomes a Lender pursuant to either Section 2.17 or Section
9.08(c), and (iii) their respective successors.



     “Letter of Credit” means a letter of credit to be issued hereunder by the Issuing Lender in
accordance with Section 2.16.



     “Letter of Credit Liabilities” means, for any Lender and at any time, such Lender’s ratable
participation in the sum of (x) the amounts then owing by the Borrower in respect of amounts drawn
under Letters of Credit and (y) the aggregate amount then available for drawing under all Letters
of Credit.



     “Letter of Credit Termination Date” means the tenth day preceding the Termination Date.



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




9









 





     “LIBOR Auction” means a solicitation of Competitive Bid Quotes setting forth the Competitive
Bid Margins based on the London Interbank Offered Rate pursuant to Section 2.03.



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind. For the purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.



     “Loan” and “Loans” mean and include each and every loan made by a Lender under this Agreement.



     “London Interbank Offered Rate” has the meaning set forth in Section 2.07(b).



     “Material Adverse Effect” means a material adverse effect on (a) the ability of the Borrower
to perform its obligations under this Agreement or any of the Notes, (b) the validity or
enforceability of this Agreement or any of the Notes, (c) the rights and remedies of any Lender or
the Administrative Agent under this Agreement or any of the Notes, or (d) the timely payment of the
principal of or interest on the Loans or other amounts payable in connection therewith.



     “Material Debt” means Debt (other than the Loans) of the Borrower and/or one or more of its
Subsidiaries, arising in one or more related or unrelated transactions, in an aggregate principal
or face amount exceeding $50,000,000.



     “Material Financial Obligations” means a principal or face amount of Debt and/or payment or
collateralization obligations in respect of Derivatives Obligations of the Borrower and/or one or
more of its Restricted Subsidiaries, arising in one or more related or unrelated transactions,
exceeding in the aggregate $50,000,000.



     “Material Plan” means at any time a Plan or Plans having aggregate Unfunded Liabilities in
excess of $50,000,000.



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



     “Notes” means promissory notes of the Borrower, substantially in the form of Exhibit A hereto,
evidencing the obligation of the Borrower to repay the Loans, and “Note” means any one of such
promissory notes issued hereunder.




10









 





     “Notice of Borrowing” means a Notice of Committed Borrowing (as defined in Section 2.02) or a
Notice of Competitive Bid Borrowing (as defined in Section 2.03(f).



     “Notice of Interest Rate Election” has the meaning set forth in Section 2.13.


     “Notice of Issuance” has the meaning set forth in Section 2.16(b).



     “Officer’s Certificate” means a certificate signed by an officer of the Borrower.



     “Other Taxes” has the meaning set forth in Section 8.04.



     “Outstanding Committed Amount” means, as to any Lender at any time, the sum of (i) the
aggregate principal amount of Committed Loans made by it which are outstanding at such time plus
(ii) the aggregate amount of its Letter of Credit Liabilities at such time.



     “Parent” means, with respect to any Lender, any Person controlling such Lender.



     “Participant” has the meaning set forth in Section 9.08(b).



     “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all
of its functions under ERISA.



     “Person” means any individual, firm, company, corporation, joint venture, joint-stock company,
limited liability company or partnership, trust, unincorporated organization, government or state
entity, or any association or partnership (whether or not having separate legal personality) of two
or more of the foregoing.



     “Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan)
which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Internal Revenue Code and is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group.



     “Pricing Schedule” means the Schedule attached hereto identified as such.



     “Prime Rate” means the rate of interest publicly announced by JPMorgan Chase Bank, N.A. in New
York City from time to time as its Prime Rate.



     “Principal Property” means, at any time, any manufacturing facility that is located in the
United States, is owned by the Borrower or any of its Subsidiaries, and has a book value, net of
any depreciation or amortization,



11









 





pursuant to the then most recently delivered financial
statements, in excess of 2.5% of the consolidated total assets of the Borrower and its Consolidated
Subsidiaries, taken as a whole.



     “Quarterly Date” means the last day of March, June, September and December in each year,
commencing June 30, 2008.



     “Reference Banks” means the principal London offices of Wachovia Bank, N.A., Bank of America,
N.A. and JPMorgan Chase Bank, N.A. “Reference Bank” means any one of such Reference Banks.



     “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as
in effect from time to time.



     “Reimbursement Obligation” has the meaning set forth in Section 2.16(c).



     “Required Lenders” means at any time Lenders with more than 50% of the aggregate amount of the
Credit Exposures at such time.



     “Restricted Subsidiary” means (x) any Significant Subsidiary, (y) any Subsidiary that has
substantially all of its property located in the United States and that owns a Principal Property
and (z) other Subsidiaries from time to time designated, by the Borrower by notice to the
Administrative Agent, as Restricted Subsidiaries as necessary such that at all times, based on the
most recent financial statements delivered pursuant hereto, at the end of any fiscal quarter the
book value of the aggregate total assets, net of depreciation and amortization and after
intercompany eliminations, of the Borrower and all of its Restricted Subsidiaries is not less than
85% of the consolidated total assets, net of depreciation and amortization and after intercompany
eliminations, of the Borrower and its Consolidated Subsidiaries, taken as a whole.



     “Retiring Lender” has the meaning set forth in Section 9.01(a).



     “Revolving Credit Period” means the period from and including the Effective Date to but not
including the Termination Date.



     “Significant Subsidiary” means a Subsidiary with a book value of total assets, net of
depreciation and amortization and after intercompany eliminations, equal to or greater than 5% of
the consolidated total assets of the Borrower and its Consolidated Subsidiaries, taken as a whole.



     “Subsidiary” means, as to any Person, any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly or indirectly
owned by such Person; unless otherwise specified, “Subsidiary” means a Subsidiary of the Borrower.



12









 






     “Taxes” has the meaning set forth in Section 8.04.



     “Temporary Cash Investment” means any Investment in (i) direct obligations of the United
States or any agency thereof, or obligations guaranteed by the United States or any agency thereof,
(ii) commercial paper rated at least A-1 by Standard & Poor’s (a division of The McGraw-Hill
Companies, Inc.) and P-1 by Moody’s Investors Service, Inc., (iii) time deposits with, including certificates of
deposit issued by, any office located in the United States of any bank or trust company which is
organized under the laws of the United States or any state thereof and has capital, surplus and
undivided profits aggregating at least $1,000,000,000, (iv) obligations of a municipality or its
agency that are supported by a letter of credit from an office of a bank or trust company meeting
the criteria set forth in clause (iii) above provided the holder of such obligations may compel the
repurchase or resale of such obligations within a one month period or (v) repurchase agreements
with respect to securities described in clause (i) above entered into with an office of a bank or
trust company meeting the criteria specified in clause (iii) above, provided in each case that such
Investment matures within one year from the date of acquisition thereof by the Borrower or a
Subsidiary.




     “Termination Date” means (i) June 6, 2012, or (ii) such later day to which the Termination
Date may be extended pursuant to Section 2.01(d), but if such day is not a Euro-Dollar Business
Day, then the Termination Date shall be the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the Termination Date shall
be the next preceding Euro-Dollar Business Day.



     “Total Commitments” means, at the time for any determination thereof, the aggregate of the
Commitments of the Lenders.



     “Total Outstanding Amount” means, at any time, the aggregate principal amount of all Loans
outstanding at such time plus the aggregate amount of the Letter of Credit Liabilities of all
Lenders at such time.



     “Transferee” has the meaning set forth in Section 9.08(e).



     “United States” means the United States of America, including the States and the District of
Columbia, but excluding the Commonwealths, territories and possessions of the United States.



     “Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by
which (i) the present value of all benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits (excluding any accrued but unpaid contributions), all
determined as of the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member of the ERISA Group to the PBGC or an
appointed trustee under Title IV of ERISA.




13









 





     Section 1.02. Accounting Terms and Determinations. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with generally accepted accounting principles
as in effect from time to time applied on a basis consistent (except for changes concurred in by the Borrower’s
independent public accountants) with the most recent audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries delivered to the Lenders; provided that, if the
Borrower notifies the Administrative Agent that the Borrower wishes to amend any covenant contained
in Article 5 to eliminate the effect of any change after the date hereof in generally accepted
accounting principles (which, for purposes of this proviso shall include the generally accepted
application or interpretation thereof) on the operation of such covenant (or if the Administrative
Agent notifies the Borrower that the Required Lenders wish to amend any such covenant for such
purpose), then the Borrower’s compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the relevant change in
generally accepted accounting principles is adopted by the Borrower, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Required
Lenders.




     Section 1.03. Types of Borrowings. The term “Borrowing” denotes the aggregation of Loans of
one or more Lenders to be made to the Borrower pursuant to Article 2 on the same date, all of which
Loans are of the same type (subject to Article 8) and, except in the case of Base Rate Loans, have
the same initial Interest Period. Borrowings are classified for purposes of this Agreement either
by reference to the pricing of Loans comprising such Borrowing (e.g., a “Fixed Rate Borrowing” is a
Euro-Dollar Borrowing or a Competitive Bid Borrowing (excluding any such Borrowing consisting of
Competitive Bid LIBOR Loans bearing interest at the Base Rate pursuant to Section 8.03), and a
“Euro-Dollar Borrowing” is a Borrowing comprised of Euro-Dollar Loans) or by reference to the
provisions of Article 2 under which participation therein is determined (i.e., a “Committed
Borrowing” is a Borrowing under Section 2.01 in which all Lenders participate in proportion to
their Commitments, while a “Competitive Bid Borrowing” is a Borrowing under Section 2.03 in which
the Lender participants are determined on the basis of their bids in accordance therewith).



ARTICLE 2

The Loans




     Section 2.01. Commitments to Lend; Extensions. (a) Commitments. During the
Revolving Credit Period, each Lender severally agrees, on the terms and conditions set forth in
this Agreement, to make loans to the Borrower pursuant to this Section from time to time in amounts
such that (i) such Lender’s



14









 





Outstanding Committed Amount shall not exceed its Commitment and (ii)
the Total Outstanding Amount shall not exceed the Total Commitments.



     (b) Revolving Commitments;Borrowing Multiples. Within the foregoing limits, the
Borrower may borrow under this Section, prepay Loans to the extent permitted by Section 2.09 and reborrow at any time during the Revolving Credit Period under
this Section. Each Borrowing under this Section shall be in an aggregate principal amount of
$5,000,000 or any larger multiple of $1,000,000 (except that any such Borrowing may be in the
aggregate amount available in accordance with Section 3.02) and shall be made from the several
Lenders ratably in proportion to their respective Commitments.




     (c) Extensions. The Termination Date may be extended in the manner set forth in this
subsection (c) for a period of one year from the Termination Date then in effect provided that (i)
no Default or Event of Default shall have occurred and be continuing; and (ii) the representations
and warranties contained in this Agreement are true and correct as of the effective date of such
extension. If the Borrower wishes to request an extension of the Termination Date, the Borrower
shall give written notice to that effect to the Administrative Agent not less than 45 nor more than
60 days prior to each anniversary of the Effective Date, whereupon the Administrative Agent shall
promptly notify each of the Lenders of such request. Each Lender will use its best efforts to
respond to such request, whether affirmatively or negatively, as it may elect in its sole and
absolute discretion, within 15 days of such notice to the Administrative Agent. Any Lender not
responding to such request within such time period shall be deemed to have responded negatively to
such request and only the Commitments of those Lenders which have responded affirmatively shall be
extended, subject to receipt by the Administrative Agent of counterparts of an Extension Agreement
in substantially the form of Exhibit I hereto (the “Extension Agreement”) duly completed and signed
by the Borrower, the Administrative Agent and all of the Lenders which have responded
affirmatively. No extension of the Commitments pursuant to this Section 2.01(c) shall be legally
binding on any party hereto unless and until such Extension Agreement is so executed and delivered
by Lenders having at least 66 2/3% of the aggregate amount of the Commitments.



     (d) Non-Extending Lenders. If any Lender rejects, or is deemed to have rejected, the
Borrower’s proposal to extend its Commitment, (A) this Agreement shall terminate on the Termination
Date then in effect with respect to such Lender, (B) the Borrower shall pay to such Lender on such
Termination Date any amounts due and payable to such Lender on such date and (C) the Borrower may,
if it so elects, designate a Person not theretofore a Lender and acceptable to the Administrative
Agent to become a Lender, or agree with an existing Lender that such Lender’s Commitment shall be
increased, provided that any designation or agreement may not increase the aggregate amount of the
Commitments. Upon execution and delivery by the Borrower and such replacement Lender or other
Person of an instrument of assumption in form and amount satisfactory to the Administrative Agent
and execution and delivery of the Extension Agreement



15









 




pursuant to Section 2.01(c), such existing
Lender shall have a Commitment as therein set forth or such other Person shall become a Lender with
a Commitment as therein set forth and all the rights and obligations of a Lender with such a
Commitment hereunder. On the date of termination of any Lender’s
Commitment as contemplated by this subsection (d), the respective participations of the other Lenders in
all outstanding Letters of Credit shall be redetermined on the basis of their respective
Commitments after giving effect to such termination, and the participation therein of the Lender
whose Commitment is terminated shall terminate; provided that the Borrower shall, if and to the
extent necessary to permit such redetermination of participations in Letters of Credit within the
limits of the Commitments which are not terminated, prepay on such date a portion of the
outstanding Loans, and such redetermination and termination of participations in outstanding
Letters of Credit shall be conditioned upon its having done so.




     Section 2.02. Notice of Committed Borrowing. The Borrower shall give the Administrative
Agent notice (a “Notice of Committed Borrowing”) not later than 12:00 Noon (New York City time) on
(x) the date of each Base Rate Borrowing and (y) the third Euro-Dollar Business Day before each
Euro-Dollar Borrowing, specifying:




     (i) the date of such Borrowing, which shall be a Domestic Business Day in the case of
a Base Rate Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing;




     (ii) the aggregate amount of such Borrowing;




     (iii) whether the Loans comprising such Borrowing are to bear interest initially at
the Base Rate or a Euro-Dollar Rate; and




     (iv) in the case of a Euro-Dollar Borrowing, the duration of the initial Interest
Period applicable thereto, subject to the provisions of the definition of Interest Period.



     Section 2.03. Competitive Bid Borrowings. (a) The Competitive Bid Option. In addition to
Committed Borrowings pursuant to Section 2.01, the Borrower may, as set forth in this Section,
request the Lenders during the Revolving Credit Period to make offers to make Competitive Bid Loans
to the Borrower. The Lenders may, but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in
this Section.



     (b) Competitive Bid Quote Request. When the Borrower wishes to request offers to make
Competitive Bid Loans under this Section, it shall transmit to the Administrative Agent by telex or
facsimile transmission a Competitive Bid Quote Request substantially in the form of Exhibit B
hereto so as to be received not later than 12:00 Noon (New York City time) on (x) the fifth
Euro-Dollar Business Day prior to the date of Borrowing proposed therein, in the case of a



16









 





LIBOR
Auction or (y) the Domestic Business Day next preceding the date of Borrowing proposed therein, in
the case of an Absolute Rate Auction (or, in either case, such other time or date as the Borrower
and the Administrative Agent shall have mutually agreed and shall have notified to the Lenders not
later than the date of the Competitive Bid Quote Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective) specifying:





     (i) the proposed date of Borrowing, which shall be a Euro-Dollar Business Day in the
case of a LIBOR Auction or a Domestic Business Day in the case of an Absolute Rate
Auction,




     (ii) the aggregate amount of such Borrowing, which shall be $5,000,000 or a larger
multiple of $1,000,000,




     (iii) the duration of the Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period, and




     (iv) whether the Competitive Bid Quotes requested are to set forth a Competitive Bid
Margin or a Competitive Bid Absolute Rate.



     The Borrower may request offers to make Competitive Bid Loans for more than one Interest
Period in a single Competitive Bid Quote Request.



     (c) Invitation for Competitive Bid Quotes. Promptly upon receipt of a Competitive Bid Quote
Request, the Administrative Agent shall send to the Lenders by telex or facsimile transmission an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit C hereto, which shall
constitute an invitation by the Borrower to each Lender to submit Competitive Bid Quotes offering
to make the Competitive Bid Loans to which such Competitive Bid Quote Request relates in accordance
with this Section.



     (d) Submission and Contents of Competitive Bid Quotes. (i) Each Lender may submit a
Competitive Bid Quote containing an offer or offers to make Competitive Bid Loans in response to
any Invitation for Competitive Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this Section 2.03(d) and must be submitted to the Administrative Agent by telex or
facsimile transmission at its offices specified in or pursuant to Section 9.02 not later than (x)
2:00 P.M. (New York City time) on the fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M. (New York City time) on the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Administrative Agent shall have mutually agreed and shall have
notified to the Lenders not later than the date of the Competitive Bid Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be effective); provided that
Competitive Bid Quotes submitted by the Administrative Agent (or any affiliate of the
Administrative Agent) in the capacity of a Lender may be submitted, and may only be submitted, if
the



17









 




Administrative Agent or such affiliate notifies the Borrower of the terms of the offer or
offers contained therein not later than (x) one hour prior to the deadline for the other Lenders,
in the case of a LIBOR Auction or (y) 15 minutes prior to the deadline for the other Lenders, in
the case of an Absolute Rate Auction. Subject to Article 3 and 6, any Competitive Bid Quote so made shall be irrevocable except with
the written consent of the Administrative Agent given on the instructions of the Borrower.





     (ii) Each Competitive Bid Quote shall be in substantially the form of Exhibit D
hereto and shall in any case specify:




     (A) the proposed date of Borrowing,




     (B) the principal amount of the Competitive Bid Loan for which each such
offer is being made, which principal amount (w) may be greater than or less than
the Commitment of the quoting Lender, (x) must be $5,000,000 or a larger
multiple of $1,000,000, (y) may not exceed the principal amount of Competitive
Bid Loans for which offers were requested and (z) may be subject to an aggregate
limitation as to the principal amount of Competitive Bid Loans for which offers
being made by such quoting Lender may be accepted,




     (C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the “Competitive Bid Margin”) offered
for each such Competitive Bid Loan, expressed as a percentage (specified to the
nearest 1/10,000th of 1%) to be added to or subtracted from such base rate,




     (D) in the case of an Absolute Rate Auction, the rate of interest per annum
(specified to the nearest 1/10,000th of 1%) (the “Competitive Bid Absolute
Rate”) offered for each such Competitive Bid Loan, and




     (E) the identity of the quoting Lender.




A Competitive Bid Quote may set forth up to five separate offers by the quoting
Lender with respect to each Interest Period specified in the related Invitation
for Competitive Bid Quotes.




     (iii) Any Competitive Bid Quote shall be disregarded if it:




     (A) is not substantially in conformity with Exhibit D hereto or does not
specify all of the information required by subsection (d)(ii) above;





18









 





     (B) contains qualifying, conditional or similar language;



     (C) proposes terms other than or in addition to those set forth in the
applicable Invitation for Competitive Bid Quotes; or




     (D) arrives after the time set forth in subsection (d)(i).



     (e) Notice to Borrower. The Administrative Agent shall promptly notify the Borrower of the
terms (x) of any Competitive Bid Quote submitted by a Lender that is in accordance with subsection
(d) and (y) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by the
Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a
manifest error in such former Competitive Bid Quote. The Administrative Agent’s notice to the
Borrower shall specify (A) the aggregate principal amount of Competitive Bid Loans for which offers
have been received for each Interest Period specified in the related Competitive Bid Quote Request,
(B) the respective principal amounts and Competitive Bid Margins or Competitive Bid Absolute Rates,
as the case may be, so offered and (C) if applicable, limitations on the aggregate principal amount
of Competitive Bid Loans for which offers in any single Competitive Bid Quote may be accepted.



     (f) Acceptance and Notice by Borrower. Not later than 10:30 A.M. (New York City time) on (x)
the third Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) the proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date of the Competitive
Bid Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to
be effective), the Borrower shall notify the Administrative Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection (e). In the case of
acceptance, such notice (a “Notice of Competitive Bid Borrowing”) shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The Borrower may accept any
Competitive Bid Quote in whole or in part; provided that:




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




     (ii) the principal amount of each Competitive Bid Borrowing must be $5,000,000 or a
larger multiple of $1,000,000;





19









 





     (iii) acceptance of offers may only be made on the basis of ascending Competitive Bid
Margins or Competitive Bid Absolute Rates, as the case may be; and



     (iv) the Borrower may not accept any offer that is described in subsection (d)(iii)
or that otherwise fails to comply with the requirements of this Agreement.



     (g) Allocation by Administrative Agent. If offers are made by two or more Lenders with the
same Competitive Bid Margins or Competitive Bid Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which such offers are accepted for the
related Interest Period, the principal amount of Competitive Bid Loans in respect of which such
offers are accepted shall be allocated by the Administrative Agent among such Lenders as nearly as
possible (in multiples of $1,000,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. Determinations by the Administrative
Agent of the amounts of Competitive Bid Loans shall be conclusive in the absence of manifest error.



     Section 2.04. Notice to Lenders; Funding of Loans. (a) Upon receipt of a Notice of
Borrowing, the Administrative Agent shall give each Lender prompt notice of the contents thereof
and of such Lender’s share (if any) of such Borrowing and such Notice of Borrowing shall not
thereafter be revocable by Borrower.



     (b) Not later than 2:00 P.M. (New York City time) on the date of each Borrowing, each Lender
participating therein shall make available its share of such Borrowing in Federal or other funds
immediately available in New York City, to the Administrative Agent at its address referred to in
Section 9.02. Unless the Administrative Agent determines that any applicable condition specified
in Article 3 has not been satisfied, the Administrative Agent will make the funds so received from
the Lenders available to the Borrower at the Administrative Agent’s aforesaid address.



     (c) Unless the Administrative Agent shall have received notice from a Lender prior to the date
of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s
share of such Borrowing, the Administrative Agent may assume that such Lender has made such share
available to the Administrative Agent on the date of such Borrowing in accordance with subsections
(b) and (c) of this Section and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such share available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Administrative Agent, at the
Federal Funds Rate. If such



20









 





Lender shall repay to the Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Lender’s Loan included in such Borrowing for
purposes of this Agreement.


     (d) The failure of any Lender to make a Loan required to be made by it as part of any
Borrowing hereunder shall not relieve any other Lender of its obligation, if any, hereunder to make
its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender on the date of the Borrowing.



     Section 2.05. Registry; Notes. (a) The Administrative Agent shall maintain a register (the
“Register”) on which it will record the Commitment of each Lender, each Loan made by such Lender
and each repayment of any Loan made by such Lender. Any such recordation by the Administrative
Agent on the Register shall be presumptively correct, absent manifest error. Failure to make any
such recordation, or any error in such recordation, shall not affect the Borrower’s obligations
hereunder.



     (b) The Borrower hereby agrees that, promptly upon the request of any Lender at any time, the
Borrower shall deliver to such Lender a single Note, in substantially the form of Exhibit A hereto,
duly executed by the Borrower and payable to the order of such Lender and representing the
obligation of the Borrower to pay the unpaid principal amount of all Loans made to the Borrower by
such Lender, with interest as provided herein on the unpaid principal amount from time to time
outstanding.



     (c) Each Lender shall record the date, amount and maturity of each Loan made by it and the
date and amount of each payment of principal made by the Borrower with respect thereto, and each
Lender receiving a Note pursuant to this Section, if such Lender so elects in connection with any
transfer or enforcement of any Note, may endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to each such Loan then outstanding;
provided that neither the failure of such Lender to make any such recordation or endorsement nor
any error therein shall affect the obligations of the Borrower hereunder or under the Notes. Such
Lender is hereby irrevocably authorized by the Borrower so to endorse any Note and to attach to and
make a part of any Note a continuation of any such schedule as and when required.



     Section 2.06. Maturity of Loans. (a) Each Committed Loan shall mature, and the principal
amount thereof shall be due and payable, on the Termination Date.



     (b) Each Competitive Bid Loan included in any Competitive Bid Borrowing shall mature, and the
principal amount thereof shall be due and payable, on the last day of the Interest Period
applicable to such Borrowing.




21









 





     Section 2.07. Interest Rates. (a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it becomes due, at a
rate per annum equal to the Base Rate for such day. Such interest, including with respect to the
principal amount of any Base Rate Loan converted to a Euro-Dollar Loan, shall be payable at maturity, quarterly in arrears
on each Quarterly Date prior to maturity. Any overdue principal of or interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a rate per annum equal to
the sum of 2% plus the rate otherwise applicable to Base Rate Loans for such day.




     (b) Each Euro-Dollar Loan shall bear interest on the outstanding principal amount thereof, for
each day during each Interest Period applicable thereto, at a rate per annum equal to the sum of
the Euro-Dollar Margin for such day plus the London Interbank Offered Rate applicable to such
Interest Period. Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three months after the
first day thereof.



     The “London Interbank Offered Rate” applicable to any Interest Period means the rate appearing
on Reuters BBA Libor Rates Page 3750 (or on any successor or substitute page of such page)
providing rate quotations comparable to those currently provided on such page of such page, as
determined by the Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00
A.M., London time, two Euro-Dollar Business Days prior to the commencement of such Interest Period,
as the rate for Dollar deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the “London Interbank Offered
Rate” for such Interest Period shall be the average (rounded upward, if necessary, to the next
higher 1/100 of 1%) of the respective rates per annum at which deposits in dollars are offered by
each of the Reference Banks in the London interbank market at approximately 11:00 A.M. (London
time) two Euro-Dollar Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Euro-Dollar Loan of such Reference Bank to which
such Interest Period is to apply and for a period of time comparable to such Interest Period.



     (c) Any overdue principal of or interest on any Euro-Dollar Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the higher of (i) the sum of 2%
plus the Euro-Dollar Margin for such day plus the average (rounded upward, if necessary, to the
next higher 1/100 of 1%) of the respective rates per annum at which one day (or, if such amount due
remains unpaid more than three Euro-Dollar Business Days, then for such other period of time not
longer than three months as the Administrative Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each of the Reference Banks are offered by such
Reference Bank in the London interbank market for the applicable period determined as provided
above



22









 





and (ii) the sum of 2% plus the Euro-Dollar Margin for such day plus the London Interbank
Offered Rate applicable to such Loan at the date such payment was due.



     (d) Subject to Section 8.01, each Competitive Bid LIBOR Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per
annum equal to the sum of the London Interbank Offered Rate for such Interest Period (determined in
accordance with Section 2.07(b) as if the related Competitive Bid LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Competitive Bid Margin quoted by the Lender making such
Loan in accordance with Section 2.07(b). Each Competitive Bid Absolute Rate Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period applicable thereto,
at a rate per annum equal to the Competitive Bid Absolute Rate quoted by the Lender making such
Loan in accordance with Section 2.03. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three months, at intervals of
three months after the first day thereof. Any overdue principal of or interest on any Competitive
Bid Loan shall bear interest, payable on demand, for each day until paid at a rate per annum equal
to the sum of 2% plus the Base Rate for such day.



     (e) The Administrative Agent shall determine each interest rate applicable to the Loans
hereunder. The Administrative Agent shall give prompt notice to the Borrower and the participating
Lenders of each rate of interest so determined, and its determination thereof shall be conclusive
in the absence of manifest error.



     (f) Each Reference Bank agrees to use its best efforts to furnish quotations to the
Administrative Agent as contemplated by this Section. If any Reference Bank does not furnish a
timely quotation, the Administrative Agent shall determine the relevant interest rate on the basis
of the quotation or quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01 shall apply.



     Section 2.08. Mandatory Termination of Commitment. The Commitments shall terminate on the
Termination Date.



     Section 2.09. Optional Prepayments. (a) Subject in the case of any Euro-Dollar Borrowing to
Section 2.14, the Borrower may, upon notice to the Administrative Agent not later than 11:30 A.M.
(New York City time) on the date of such prepayment, prepay any Group of Base Rate Loans (or any
Competitive Bid Borrowing bearing interest at the Base Rate pursuant to Section 8.01 or upon at
least three Euro-Dollar Business Days’ notice to the Administrative Agent, prepay any Group of
Euro-Dollar Loans, in each case in whole at any time, or from time to time in part in amounts
aggregating $5,000,000 or any larger multiple of $1,000,000 by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment. Each such optional




23









 





prepayment shall be applied to prepay ratably the Loans of the several Lenders included in such
Group (or Borrowing).



     (b) Except as provided in subsection (a) above the Borrower may not prepay all or any portion
of the principal amount of any Competitive Bid Loan prior to the maturity thereof.



     (c) Upon receipt of a notice of prepayment pursuant to this Section, the Administrative Agent
shall promptly notify each Lender of the contents thereof and of such Lender’s ratable share (if
any) of such prepayment and such notice shall not thereafter be revocable by the Borrower.



     Section 2.10. General Provisions as to Payments. (a) The Borrower shall make each payment of
principal of, and interest on, the Loans, of Letter of Credit Liabilities and of fees hereunder,
not later than 2:00 P.M. (New York City time) on the date when due, in funds immediately available
in New York City, to the Administrative Agent at its address referred to in Section 9.02. If a
Fed-Wire reference or tracer number has been received, from the Borrower or otherwise, by the
Administrative Agent by that time the Borrower will not be penalized for a payment received after
2:00 P.M. (New York City time). The Administrative Agent will promptly distribute to each Lender
its ratable share of each such payment received by the Administrative Agent for the account of the
Lenders. Whenever any payment of principal of, or interest on, the Base Rate Loans or Letter of
Credit Liabilities or of fees shall be due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-Dollar Business Day.
Whenever any payment of principal of, or interest on, the Competitive Bid Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such extended time.



     (b) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Lenders hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent that the Borrower shall not have so made such
payment, each Lender shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the date such amount
is



24









 





distributed to such Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.



     Section 2.11. Fees. (a) The Borrower shall pay to the Administrative Agent for the account
of the Lenders ratably a facility fee at the Facility Fee Rate (determined daily in accordance with
the Pricing Schedule) on the daily aggregate amount of the Credit Exposures. Such facility fee
shall accrue from and including the Effective Date to but excluding the date that the Credit
Exposures are reduced to zero.



     (b) The Borrower shall pay to the Administrative Agent (i) for the account of the Lenders
ratably a letter of credit fee accruing daily on the aggregate amount available for drawing under
all outstanding Letters of Credit at the Letter of Credit Fee Rate (determined daily in accordance
with the Pricing Schedule) and (ii) for the account of each Issuing Lender a letter of credit
fronting fee accruing daily on the aggregate amount of all Letters of Credit issued by such Issuing
Lender at a rate per annum mutually agreed from time to time by the Borrower and such Issuing
Lender.



     (c) Accrued fees under this Section shall be payable quarterly in arrears on each Quarterly
Date and on the date of termination of the Commitments in their entirety (and, if later, the date
the Credit Exposures are reduced to zero).



     Section 2.12. Reduction or Termination of Commitments. During the Revolving Credit Period,
the Borrower may, upon at least three Domestic Business Days’ notice to the Administrative Agent,
(i) terminate the Commitments at any time, if no Loans are outstanding at such time or (ii) ratably
reduce from time to time by an aggregate amount of $5,000,000 or a larger multiple of $1,000,000,
the aggregate amount of the Commitments in excess of the Total Outstanding Amount.



     Section 2.13. Method of Electing Interest Rates. (a) The Loans included in each Committed
Borrowing shall bear interest initially at the type of rate specified by the Borrower in the
applicable Notice of Committed Borrowing. Thereafter, the Borrower may from time to time elect to
change or continue the type of interest rate borne by each Group of Loans (subject in each case to
the provisions of Article 8 and the last sentence of this subsection(a)), as follows:




     (i) if such Loans are Base Rate Loans, the Borrower may elect to convert such Loans
to Euro-Dollar Loans as of any Euro-Dollar Business Day and




     (ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to convert such
Loans to Base Rate Loans or elect to continue such Loans as Euro-Dollar Loans for an
additional Interest Period, subject to Section 2.14 in the case of any such conversion or
continuation effective



25









 





on any day other than the last day of the then current Interest
Period applicable to such Loans.



     Each such election shall be made by delivering a notice (a “Notice of Interest Rate Election”)
to the Administrative Agent not later than 12:00 noon. (New York City time) on the third
Euro-Dollar Business Day before the conversion or continuation selected in such notice is to be
effective. A Notice of Interest Rate Election may, if it so specifies, apply to only a portion of
the aggregate principal amount of the relevant Group of Loans; provided that (i) such portion is
allocated ratably among the Loans comprising such Group and (ii) the portion to which such Notice
applies, and the remaining portion to which it does not apply, are each $5,000,000 or any larger
multiple of $1,000,000. If no such notice is timely received prior to the end of an Interest
Period, the Borrower shall be deemed to have elected that all Loans having such Interest Period be
converted to Base Rate Loans at the end of such Interest Period.



     (b) Each Notice of Interest Rate Election shall specify:




     (i) the Group of Loans (or portion thereof) to which such notice applies;




     (ii) the date on which the conversion or continuation selected in such notice is to
be effective, which shall comply with the applicable clause of subsection (a) above;




     (iii) if the Loans comprising such Group are to be converted, the new type of Loans
and, if the Loans being converted are to be Euro-Dollar Loans, the duration of the next
succeeding Interest Period applicable thereto; and




     (iv) if such Loans are to be continued as Euro-Dollar Loans for an additional
Interest Period, the duration of such additional Interest Period.



     Each Interest Period specified in a Notice of Interest Rate Election shall comply with the
provisions of the definition of Interest Period.



     (c) Upon receipt of a Notice of Interest Rate Election from the Borrower pursuant to
subsection (a) above, the Administrative Agent shall promptly notify each Lender of the contents
thereof and such notice shall not thereafter be revocable by the Borrower.



     (d) An election by the Borrower to change or continue the rate of interest applicable to any
Group of Loans pursuant to this Section shall not constitute a “Borrowing” subject to the
provisions of Section 3.02.




26









 





     Section 2.14. Funding Losses. If the Borrower makes any payment of principal with respect to
any Fixed Rate Loan or any Fixed Rate Loan is converted (pursuant to Article 2, 6 or 8 or
otherwise) on any day other than the last day of an Interest Period applicable thereto, or the last
day of an applicable period fixed pursuant to Section 2.07(c), or if the Borrower fails to borrow, prepay, convert
or continue any Fixed Rate Loans after notice has been given to any Lender in accordance with
Section 2.04(a), 2.09 or 2.13 the Borrower shall reimburse each Lender within 30 days after demand
for any resulting loss or expense incurred by it, including (without limitation) any loss incurred
in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin
for the period after any such payment or conversion or failure to borrow, prepay, convert or
continue, provided that such Lender shall have delivered to the Borrower a certificate as to the
amount of such loss or expense, which certificate shall be conclusive in the absence of manifest
error.




     Section 2.15. Computation of Interest and Fees. The facility fee paid pursuant to Section
2.11 and interest based on the Prime Rate hereunder shall be computed on the basis of a year of 365
days (or 366 days in a leap year) and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and fees shall be computed on the basis
of a year of 360 days and paid for the actual number of days elapsed (including the first day but
excluding the last day).



     Section 2.16. Letters of Credit.



     (a) Commitment to Issue Letters of Credit. Subject to the terms and conditions hereof, each
Issuing Lender agrees to issue Letters of Credit from time to time before the Letter of Credit
Termination Date upon the request of the Borrower; provided that, immediately after each Letter of
Credit is issued (i) the Total Outstanding Amount shall not exceed the aggregate amount of the
Commitments and (ii) the aggregate amount of the Letter of Credit Liabilities shall not exceed
$50,000,000. Upon the date of issuance by an Issuing Lender of a Letter of Credit, the Issuing
Lender shall be deemed, without further action by any party hereto, to have sold to each Lender,
and each Lender shall be deemed, without further action by any party hereto, to have purchased from
the Issuing Lender, a participation in such Letter of Credit and the related Letter of Credit
Liabilities in the proportion its respective Commitment bears to the aggregate Commitments.



     (b) Method for Issuance; Terms; Extensions.




     (i) The Borrower shall give the Issuing Lender notice at least three Domestic
Business Days (or such shorter notice as may be acceptable to the Issuing Lender in its
discretion) prior to the requested issuance of a Letter of Credit (or, in the case of
renewal or extension, prior to the Issuing Lender’s deadline for notice of nonextension)
specifying the date such Letter of Credit is to be issued, and describing the terms of
such



27









 






Letter of Credit and the nature of the transactions to be supported thereby (such
notice, including any such notice given in connection with the extension of a Letter of
Credit, a “Notice of Issuance”). Upon receipt of a Notice of Issuance, the Issuing Lender
shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Lender
of the contents thereof and of the amount of such Lender’s participation in such Letter of
Credit.




     (ii) The obligation of the Issuing Lender to issue each Letter of Credit shall, in
addition to the conditions precedent set forth in Article 3 be subject to the conditions
precedent that such Letter of Credit shall be in such form and contain such terms as shall
be reasonably satisfactory to the Issuing Lender and that the Borrower shall have executed
and delivered such other customary instruments and agreements relating to such Letter of
Credit as the Issuing Lender shall have reasonably requested; provided, however, that each
Issuing Lender agrees that in the event of any inconsistency between such instruments and
agreements and this Agreement the provisions of this Agreement shall prevail. The
Borrower shall also pay to the Issuing Lender for its own account issuance, drawing,
amendment, settlement and extension charges, if any, in the amounts and at the times as
agreed between the Borrower and the Issuing Lender.




     (iii) The extension or renewal of any Letter of Credit shall be deemed to be an
issuance of such Letter of Credit, and if any Letter of Credit contains a provision
pursuant to which it is deemed to be extended unless notice of termination is given by the
Issuing Lender, the Issuing Lender shall timely give such notice of termination unless it
has theretofore timely received a Notice of Issuance and the other conditions to issuance
of a Letter of Credit have also theretofore been met with respect to such extension. Each
Letter of Credit shall expire at or before the close of business on the date that is one
year after such Letter of Credit is issued (or, in the case of any renewal or extension
thereof, one year after such renewal or extension); provided that (i) a Letter of Credit
may contain a provision pursuant to which it is deemed to be extended on an annual basis
unless notice of termination is given by the Issuing Lender and (ii) in no event will a
Letter of Credit expire (including pursuant to a renewal or extension thereof) on a date
later than the Letter of Credit Termination Date.



     (c) Payments; Reimbursement Obligations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the Issuing Lender shall notify the Administrative
Agent and the Administrative Agent shall promptly notify the Borrower and each other
Lender as to the amount to be paid as a result of such demand or drawing and the date such
payment is to be made by the Issuing Lender (the “Payment Date”). The Borrower



28









 






shall be
irrevocably and unconditionally obligated to reimburse the Issuing Lender for any amounts
paid by the Issuing Lender upon any drawing under any Letter of Credit, without
presentment, demand, protest or other formalities of any kind. Such reimbursement shall
be due on the Payment Date; provided that no such payment shall be due from the Borrower any earlier than
the date of receipt by it of notice of its obligation to make such payment (or, if such
notice is received by the Borrower after 11:00 A.M. (New York City time) on any date, on
the next succeeding Domestic Business Day); and provided further that if and to the extent
any such reimbursement is not made by the Borrower in accordance with this clause (i) or
clause (ii) below on the Payment Date, then (irrespective of when notice thereof is
received by the Borrower), such reimbursement obligation shall bear interest, payable on
demand, for each day from and including the Payment Date to but not including the date
such reimbursement obligation is paid in full at a rate per annum equal to the rate
applicable to Base Rate Loans for such day.




     (ii) If the Commitments remain in effect on the Payment Date, all such amounts paid
by the Issuing Lender and remaining unpaid by the Borrower after the date and time
required by Section 2.16(c)(i) (a “Reimbursement Obligation”) shall, if and to the extent
that the amount of such Reimbursement Obligation would be permitted as a Borrowing of
Committed Loans pursuant to Section 3.02, and unless the Borrower otherwise instructs the
Administrative Agent by not less than one Domestic Business Day’s prior notice, convert
automatically to Base Rate Loans on the date such Reimbursement Obligation arises. The
Administrative Agent shall, on behalf of the Borrower (which hereby irrevocably directs
the Administrative Agent so to act on its behalf), give notice no later than 12:00 Noon
(New York City time) on such date requesting each Lender to make, and each Lender hereby
agrees to make, a Base Rate Loan, in an amount equal to such Lender’s ratable share of the
Reimbursement Obligation with respect to which such notice relates. Each Lender shall
make such Loan available to the Administrative Agent at its address referred to in Section
9.02 in immediately available funds, not later than 2:00 P.M. (New York City time), on the
date specified in such notice. The Administrative Agent shall pay the proceeds of such
Loans to the Issuing Lender, which shall immediately apply such proceeds to repay the
Reimbursement Obligation.




     (iii) To the extent the Reimbursement Obligation is not refunded by a Lender pursuant
to clause (ii) above, such Lender will pay to the Administrative Agent, for the account of
the Issuing Lender, immediately upon the Issuing Lender’s demand at any time during the
period commencing after such Reimbursement Obligation arises until reimbursement therefor
in full by the Borrower, an amount equal to such Lender’s ratable share of such
Reimbursement Obligation, together with


29









 






interest on such amount for each day from the date
of the Issuing Lender’s demand for such payment (or, if such demand is made after 1:00
P.M. (New York City time) on such date, from the next succeeding Domestic Business Day) to
the date of payment by such Lender of such amount at a rate of interest per annum equal to the Federal Funds Rate for the first three
Domestic Business Days after the date of such demand and thereafter at a rate per annum
equal to the Base Rate for each additional day. The Issuing Lender will pay to each
Lender ratably all amounts received from the Borrower for application in payment of its
Reimbursement Obligations in respect of any Letter of Credit, but only to the extent such
Lender has made payment to the Issuing Lender in respect of such Letter of Credit pursuant
hereto; provided that in the event such payment received by the Issuing Lender is required
to be returned, such Lender will return to the Issuing Lender any portion thereof
previously distributed to it by the Issuing Lender.



     (d) Obligations Absolute. The obligations of the Borrower and each Lender under subsection
(c) above shall be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement, under all circumstances whatsoever, including without
limitation the following circumstances:




     (i) any lack of validity or enforceability of this Agreement or any Letter of Credit
or any document related hereto or thereto;




     (ii) any amendment or waiver of or any consent to departure from all or any of the
provisions of this Agreement or any Letter of Credit or any document related hereto or
thereto, provided by any party affected thereby;




     (iii) the use which may be made of the Letter of Credit by, or any acts or omission
of, a beneficiary of a Letter of Credit (or any Person for whom the beneficiary may be
acting);




     (iv) the existence of any claim, set-off, defense or other rights that the Borrower
may have at any time against a beneficiary of a Letter of Credit (or any Person for whom
the beneficiary may be acting), any Lender (including the Issuing Lender) or any other
Person, whether in connection with this Agreement or the Letter of Credit or any document
related hereto or thereto or any unrelated transaction;




     (v) any statement or any other document presented under a Letter of Credit proving to
be forged, fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;





30









 





     (vi) payment under a Letter of Credit against presentation to the Issuing Lender of
documents that do not comply with the terms of such Letter of Credit;



     (vii) any termination of the Commitments prior to, on or after the Payment Date for
any Letter of Credit, whether at the scheduled termination thereof, by operation of
Section 6.01 or otherwise; or




     (viii) any other act or omission to act or delay of any kind by any Lender (including
the Issuing Lender), the Administrative Agent or any other Person or any other event or
circumstance whatsoever that might, but for the provisions of this subsection (viii),
constitute a legal or equitable discharge of or defense to the Borrower’s or the Lender’s
obligations hereunder;


provided, that this Section 2.16(d) shall not limit the rights of the Borrower under Section
2.16(e)(ii)




     (e) Indemnification; Expenses.




     (i) The Borrower hereby indemnifies and holds harmless each Lender (including each
Issuing Lender) and the Administrative Agent from and against any and all claims, damages,
losses, liabilities, costs or expenses which it may reasonably incur in connection with a
Letter of Credit issued pursuant to this Section 2.16; provided that the Borrower shall
not be required to indemnify any Lender, or the Administrative Agent, for any claims,
damages, losses, liabilities, costs or expenses, to the extent found by a court of
competent jurisdiction to have been caused by the gross negligence or willful misconduct
of such Person.




     (ii) None of the Lenders (including, subject to subsection (g) below, an Issuing
Lender) nor the Administrative Agent nor any of their officers or directors or employees
or agents shall be liable or responsible, by reason of or in connection with the execution
and delivery or transfer of or payment or failure to pay under any Letter of Credit,
including without limitation any of the circumstances enumerated in subsection (d) above;
provided that, notwithstanding Section 2.16(d) , the Borrower shall have a claim for
direct (but not consequential) damage suffered by it, to the extent finally determined by
a court of competent jurisdiction to have been caused by (x) the Issuing Lender’s gross
negligence or willful misconduct in determining whether documents presented under any
Letter of Credit complied with the terms of such Letter of Credit or (y) the Issuing
Lender’s failure to pay under any Letter of Credit after the presentation to it of
documents strictly complying with the terms and conditions of the Letter of Credit. The
parties agree that, with respect to documents presented which appear on their face to be
in substantial compliance with the terms of a Letter of Credit, the Issuing Lender may,



31









 






in
its discretion, either accept and make payment upon such documents without responsibility
for further investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such
Letter of Credit.




     (iii) Nothing in this subsection (e) is intended to limit the obligations of the
Borrower under any other provision of this Agreement. To the extent the Borrower does not
indemnify an Issuing Lender as required by this subsection, the Lenders agree to do so
ratably in accordance with their Commitments.



     (f) Stop Issuance Notice. If the Required Lenders reasonably determine at any time that the
conditions set forth in Section 3.02 would not be satisfied in respect of a Borrowing at such time,
then the Required Lenders may request that the Administrative Agent issue a “Stop Issuance Notice”,
and the Administrative Agent shall issue such notice to each Issuing Lender. Such Stop Issuance
Notice shall be withdrawn upon a determination by the Required Lenders that the circumstances
giving rise thereto no longer exist. No Letter of Credit shall be issued while a Stop Issuance
Notice is in effect. The Required Lenders may request issuance of a Stop Issuance Notice only if
there is a reasonable basis therefor, and shall consider reasonably and in good faith a request
from the Borrower for withdrawal of the same on the basis that the conditions in Section 3.02 are
satisfied, provided that the Administrative Agent and the Issuing Lenders may and shall
conclusively rely upon any Stop Issuance Notice while it remains in effect.



     Section 2.17. Increased Commitments; Additional Lenders. (a) Subsequent to the Effective
Date, the Borrower may, upon at least 30 days’ notice to the Administrative Agent (which shall
promptly provide a copy of such notice to the Lenders), propose to increase the aggregate amount of
the Commitments by an amount not to exceed $75,000,000 (the amount of any such increase, the
“Increased Commitments”). Each Lender party to this Agreement at such time shall have the right
(but no obligation), for a period of 15 days following receipt of such notice, to elect by notice
to the Borrower and the Administrative Agent to increase its Commitment by a principal amount which
bears the same ratio to the Increased Commitments as its then Commitment bears to the aggregate
Commitments then existing.



     (b) If any Lender party to this Agreement shall not elect to increase its Commitment pursuant
to subsection (a) of this Section, the Borrower may designate another bank or other banks (which
may be, but need not be, one or more of the existing Lenders) which at the time agree to (i) in the
case of any such bank that is an existing Lender, increase its Commitment and (ii) in the case of
any other such bank (an “Additional Lender”), become a party to this Agreement. The sum of the
increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the
Commitments of the Additional Lenders



32









 





shall not in the aggregate exceed the unsubscribed amount of
the Increased Commitments.



     (c) An increase in the aggregate amount of the Commitments pursuant to this Section 2.17 shall
become effective upon the receipt by the Administrative Agent of an agreement in form and substance
satisfactory to the Administrative Agent signed by the Borrower, by each Additional Lender and by
each other Lender whose Commitment is to be increased, setting forth the new Commitments of such
Lenders and setting forth the agreement of each Additional Lender to become a party to this
Agreement and to be bound by all the terms and provisions hereof, together with such evidence of
appropriate corporate authorization on the part of the Borrower with respect to the Increased
Commitments and such opinions of counsel for the Borrower with respect to the Increased Commitments
as the Administrative Agent may reasonably request.



     (d) Upon any increase in the aggregate amount of the Commitments pursuant to this Section 2.17
that is not pro rata among all Lenders, (i) the respective Letter of Credit Liabilities of the
Lenders shall be redetermined as of the effective date of such increase and (ii) within five
Domestic Business Days, in the case of any Group of Base Rate Loans then outstanding, and at the
end of the then current Interest Period with respect thereto, in the case of any Group of
Euro-Dollar Loans then outstanding, the Borrower shall prepay such Group in its entirety and, to
the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the
Borrower shall reborrow Committed Loans from the Lenders in proportion to their respective
Commitments after giving effect to such increase, until such time as all outstanding Committed
Loans are held by the Lenders in such proportion.



ARTICLE 3

Conditions




     Section 3.01. Effectiveness. This Amended Agreement shall become effective as of the date
hereof, subject to receipt by the Administrative Agent of:



     (a) counterparts hereof signed by the Borrower and Lenders comprising the Required Lenders
under the Existing Agreement (or other written confirmation in form satisfactory to the
Administrative Agent that each such party has signed a counterpart hereof); and



     (b) payment of a work fee for the account of each Lender who has signed this Agreement on or
before the Effective Date in an amount equal to 0.10% of the Commitment of such Lender;



provided that this Amended Agreement shall not become effective or be binding on any party hereto
unless all of the foregoing conditions are satisfied or waived in accordance with Section 9.07 not
later than October 24, 2008. The



33









 




Administrative Agent shall promptly notify the Borrower and the
Lenders of the Effective Date, and such notice shall be conclusive
and binding on all parties hereto. On the Effective Date, the Existing Agreement shall be automatically amended and restated
in its entirety to read as this Amended Agreement.




     Section 3.02. Borrowings and Issuances of Letters of Credit. The obligation of any Lender to
make a Loan and the obligation of the Issuing Lender to issue (or renew or extend the term of) any
Letter of Credit is subject to the satisfaction of the following conditions;



     (a) receipt (or deemed receipt pursuant to Section 2.16(d) by the Administrative Agent of a
Notice of Borrowing as required by Section 2.02 or receipt by the Issuing Lender of a Notice of
Issuance as required by Section 2.16, as the case may be;



     (b) the fact that immediately after such Borrowing or issuance of such Letter of Credit the
Total Outstanding Amount will not exceed the Total Commitments, and the aggregate amount of Letter
of Credit Liabilities will not exceed $50,000,000;



     (c) the fact that, immediately before and after such Borrowing or issuance of such Letter of
Credit, no Default shall have occurred and be continuing; and



     (d) the fact that, except as otherwise described by the Borrower in a writing to the
Administrative Agent and waived by the Required Lenders, the representations and warranties of the
Borrower contained in this Agreement (except, in the case of any Borrowing or issuance subsequent
to the Closing Date, the representations and warranties set forth in Sections 4.04(b), 4.05, 4.06,
4.08, 4.13 and 4.14) shall be true on and as of the date of such Borrowing or issuance, except to
the extent they expressly relate to an earlier date in which case they shall be correct as of such
earlier date.



     Each Borrowing and issuance of a Letter of Credit hereunder shall be deemed to be a representation
and warranty by the Borrower on the date of such Borrowing or issuance as to the facts specified in
clauses 3.02(c) and 3.02(d).



ARTICLE 4

Representations and Warranties




     The Borrower represents and warrants that:



     Section 4.01. Corporate Existence and Power. Each of the Borrower and its Restricted
Subsidiaries is a corporation duly organized and validly existing under the laws of the state of
its incorporation without limitation on the duration of its existence, is in good standing therein,
and is duly qualified to transact



34









 





business in all jurisdictions where such qualification is
necessary, except for such jurisdictions where the failure to be so qualified or licensed will not
be reasonably likely to have a Material Adverse Effect; the Borrower has corporate power to enter into and
perform this Agreement; and the Borrower has the corporate power to borrow and issue Notes as
contemplated by this Agreement.




     Section 4.02. Corporate Authorization; No Contravention. The execution, delivery and
performance by the Borrower of this Agreement and the Notes are within the corporate powers of the
Borrower, have been duly authorized by all necessary corporate action and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of the certificate of
incorporation or by-laws of the Borrower or of any agreement, judgment, injunction, order, decree
or other instrument binding upon the Borrower or any of its Subsidiaries or result in the creation
or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries which would be
reasonably likely to have a Material Adverse Effect.



     Section 4.03. Binding Effect. This Agreement and any Notes constitute valid and binding
agreements of the Borrower enforceable against the Borrower in accordance with their respective
terms, except to the extent limited by bankruptcy, reorganization, insolvency, moratorium and other
similar laws of general application relating to or affecting the enforcement of creditors’ rights
or by general equitable principles.



     Section 4.04. Financial Information. (a) The consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of December 31, 2007 and the related consolidated statements of
earnings and cash flows for the fiscal year then ended, reported on by Ernst & Young LLP and set
forth in the Borrower’s 2007 Form 10-K, a copy of which has been delivered to each of the Lenders,
fairly present, in conformity with generally accepted accounting principles, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal year.



     (b) The unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as of June 30, 2008 and the related unaudited consolidated statements of income and cash flows for
the six months then ended, set forth in the Borrower’s Latest Form 10-Q, a copy of which has been
delivered to each of the Lenders, fairly present, in conformity with generally accepted accounting
principles (“GAAP”), the consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and its consolidated results of operations and cash flows for such
six-month period (subject to year-end audit adjustments).



     (c) Since December 31, 2007, there has been no change in the consolidated financial condition
of the Borrower and its Consolidated Subsidiaries which would be reasonably likely to have a
Material Adverse Effect.




35











 





     Section 4.05. Litigation. There are no suits, actions or proceedings pending, or to the
knowledge of any member of the Borrower’s legal department threatened or against the Borrower or
any Subsidiary, the adverse determination of which is reasonably likely to occur, and if so
adversely determined would be reasonably likely to have a Material Adverse Effect.



     Section 4.06. Taxes. The Borrower and each Subsidiary have filed all material tax returns
which to the knowledge of any member of the Borrower’s tax department were required to be filed and
have paid or have adequately provided for all taxes shown thereon to be due, including interest and
penalties, except for (i) those not yet delinquent, (ii) those the nonpayment of which would not be
reasonably likely to have a Material Adverse Effect and (iii) those being contested in good faith.



     Section 4.07. Margin Regulations. No part of the proceeds of any Loan will be used in a
manner which would violate, or result in a violation of, Regulation U.



     Section 4.08. Compliance with Laws. The Borrower and its Restricted Subsidiaries are in
compliance in all material respects with all applicable laws, rules and regulations, other than
such laws, rules and regulations (i) the validity or applicability or which the Borrower or such
Subsidiary is contesting in good faith or (ii) failure to comply with which would not be reasonably
likely to have a Material Adverse Effect.



     Section 4.09. Governmental Approvals. No consent, approval, authorization, permit or license
from, or registration or filing with, any Governmental Authority is required in connection with the
making of this Agreement, with the exception of routine periodic filings made under the Exchange
Act.



     Section 4.10. Pari Passu Obligations. Under applicable United States laws (including state
and local laws) in force at the date hereof, the claims and rights of the Lenders and the
Administrative Agent against the Borrower under this Agreement and the Notes will not be
subordinate to, and will rank at least pari passu with, the claims and rights of any other
unsecured creditors of the Borrower (except to the extent provided by bankruptcy, reorganization,
insolvency, moratorium or other similar laws of general application relating to or affecting the
enforcement of creditors’ rights and by general principles of equity).



     Section 4.11. No Defaults. The payment obligations of the Borrower and its Subsidiaries in
respect of any Material Debt are not overdue.



     Section 4.12. Full Disclosure. All information furnished to the Lenders in writing prior to
the date hereof in connection with the transactions contemplated hereby does not, collectively,
contain any misstatement of a material fact or omit to state a fact necessary to make the
statements contained



36









 




therein, in the light of the circumstances under which they were made, not misleading in any
material respect on and as of the date hereof.




     Section 4.13. ERISA. Each member of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect to each Plan and is
in substantial compliance in all material respects with the presently applicable material
provisions of ERISA and the Internal Revenue Code with respect to each Plan. No member of the
ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any contribution or payment to
any Plan or Multiemployer Plan or made any amendment to any Plan which, in either case has resulted
or could result in the imposition of a material Lien or the posting of a material bond or other
material security under ERISA or the Internal Revenue Code or (iii) incurred any material liability
under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA.



     Section 4.14. Environmental Matters. Environmental Matters. The Financial Statements
described in Section 4.04(a) provide certain information regarding environmental matters related to
properties currently owned by the Borrower or its Restricted Subsidiaries, previously owned
properties, and other properties. Since December 31, 2004, environmental matters have not caused
any material adverse change in the consolidated financial condition of the Borrower and the
Consolidated Subsidiaries from that shown by such Financial Statements.



     In the ordinary course of business, the ongoing operations of the Borrower and its Restricted
Subsidiaries are reviewed from time to time to determine compliance with applicable Environmental
Laws. Based on these reviews, to the knowledge of the Borrower, ongoing operations at the
Principal Properties are currently being conducted in substantial compliance with applicable
Environmental Laws except to the extent that noncompliance would not be reasonably likely to have a
Material Adverse Effect.



     Section 4.15. Regulatory Restrictions on Borrowing. The Borrower is not an “investment
company” within the meaning of the Investment Company Act of 1940, as amended, or otherwise subject
to any regulatory scheme which restricts its ability to incur debt.



ARTICLE 5

Covenants




     From the Closing Date and so long as any Lender has any Credit Exposure hereunder, the
Borrower agrees that, unless the Required Lenders shall otherwise consent in writing:



37









 





     Section 5.01. Information. The Borrower will deliver to the Administrative Agent which will
deliver to each of the Lenders:



     (a) as soon as available and in any event within 60 days after the end of each of its first
three quarterly accounting periods in each fiscal year, consolidated statements of earnings and
cash flows of the Borrower and the Consolidated Subsidiaries for the period from the beginning of
such fiscal year to the end of such fiscal period and the related consolidated balance sheet of the
Borrower and the Consolidated Subsidiaries as at the end of such fiscal period, all in reasonable
detail (it being understood that delivery of such statements as filed with the Securities and
Exchange Commission shall be deemed to satisfy the requirements of this subsection) and accompanied
by a certificate in the form attached hereto as Exhibit H signed by a financial officer of the
Borrower stating that such consolidated financial statements fairly present the consolidated
financial condition and results of operations of the Borrower and the Consolidated Subsidiaries as
of the end of such period and for the period involved, subject, however, to year-end audit
adjustments, and that such officer has no knowledge, except as specifically stated, of any Default;



     (b) as soon as available and in any event within 120 days after the end of each fiscal year,
consolidated statements of earnings and cash flows of the Borrower and the Consolidated
Subsidiaries for such year and the related consolidated balance sheets of the Borrower and the
Consolidated Subsidiaries as at the end of such year, all in reasonable detail and accompanied by
(i) an opinion of independent public accountants of recognized standing selected by the Borrower
as to such consolidated financial statements (it being understood that delivery of such statements
as filed with the Securities and Exchange Commission shall be deemed to satisfy the requirements of
this subsection), and (ii) a certificate in the form attached hereto as Exhibit H signed by a
financial officer of the Borrower stating that such consolidated financial statements fairly
present the consolidated financial condition and results of operations of the Borrower and the
Consolidated Subsidiaries as of the end of such year and for the year involved and that such
officer has no knowledge, except as specifically stated, of any Default;



     (c) promptly after their becoming available:




     (i) copies of all financial statements, stockholder reports and proxy statements that
the Borrower shall have sent to its stockholders generally; and




     (ii) copies of all registration statements filed by the Borrower under the Securities
Act of 1933, as amended (other than registration statements on Form S-8 or any
registration statement filed in connection with a dividend reinvestment plan), and regular
and periodic reports, if any, which the Borrower shall have filed with the Securities and
Exchange Commission (or any governmental agency or agencies substituted therefor) under
Section 13 or Section 15(d) of the Exchange Act, or with



38









 






any national or international securities exchange (other than those on Form 11-K or
any successor form);



     (d) from time to time, with reasonable promptness, such further information regarding the
business and financial condition of the Borrower and its Subsidiaries as any Lender may reasonably
request through the Administrative Agent;



     (e) prompt notice of the occurrence of any Default; and



     (f) prompt notice of all litigation and of all proceedings before any governmental or
regulatory agency pending (or, to the knowledge of the General Counsel of the Borrower, threatened)
and affecting the Borrower or any Restricted Subsidiary, except litigation or proceedings which, if
adversely determined, would not be reasonably likely to have a Material Adverse Effect.



     Each set of financial statements delivered pursuant to Section 5.01(a) or 5.01(b) shall be
accompanied by or include the computations showing, in the form attached hereto as Exhibit H,
whether the Borrower was, at the end of the relevant fiscal period, in compliance with the
provisions of Section 5.09.



     Section 5.02. Payment of Obligations. The Borrower will pay and discharge, and will cause
each Restricted Subsidiary to pay and discharge, all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon any property belonging to
it, prior to the date on which penalties attach thereto, and all lawful material claims which, if
unpaid, might become a Lien upon the property of the Borrower or such Restricted Subsidiary;
provided that neither the Borrower nor any such Restricted Subsidiary shall be required to pay any
such tax, assessment, charge, levy or claim (i) the payment of which is being contested in good
faith and by proper proceedings, (ii) not yet delinquent or (iii) the non-payment of which, if
taken in the aggregate, would not be reasonably likely to have a Material Adverse Effect.



     Section 5.03. Insurance. The Borrower will maintain, and will cause each Restricted
Subsidiary to maintain, insurance from responsible companies in such amounts and against such risks
as is reasonable, taking into consideration the practices of businesses in the same line of
business or of similar size as the Borrower or such Restricted Subsidiary, or, to a reasonable
extent, self-insurance.



     Section 5.04. Maintenance of Existence. The Borrower will preserve and maintain, and will
cause each Restricted Subsidiary to preserve and maintain, its corporate existence and all of its
rights, privileges and franchises necessary or desirable in the normal conduct of its business, and
conduct its business in an orderly, efficient and regular manner. Nothing herein contained shall
prevent the termination of the business or corporate existence of any Restricted Subsidiary which
in the judgment of the Borrower is no longer necessary or desirable, a merger or consolidation of a
Restricted Subsidiary into or with the Borrower (if



39









 




the Borrower is the surviving corporation) or another Subsidiary or any merger, consolidation
or transfer of assets permitted by Section 5.07, as long as immediately after giving effect to any
such transaction, no Default shall have occurred and be continuing.




     Section 5.05. Maintenance of Properties. The Borrower will keep, and will cause each
Restricted Subsidiary to keep, all of its properties necessary, in the judgment of the Borrower, in
its business in good working order and condition, ordinary wear and tear excepted. Nothing in this
Section 5.05 shall prevent the Borrower or any Restricted Subsidiary from discontinuing the
operation or maintenance, or both the operation and maintenance, of any properties of the Borrower
or any such Restricted Subsidiary if such discontinuance is, in the judgment of the Borrower (or
such Restricted Subsidiary), desirable in the conduct of its business.



     Section 5.06. Compliance with Laws. The Borrower will comply, and will cause each Restricted
Subsidiary to comply, with the requirements of all applicable laws, rules, regulations, and orders
of any Governmental Authority (including Environmental Laws and ERISA), a breach of which would be
reasonably likely to have a Material Adverse Effect, except where contested in good faith and by
proper proceedings.



     Section 5.07. Mergers, Consolidations and Sales of Assets. (a) The Borrower will not
consolidate with or merge into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:




     (i) the Borrower or a Consolidated Subsidiary that is incorporated under the laws of
the United States, any state thereof or the District of Columbia is the surviving
corporation of any such consolidation or merger or is the Person that acquires by
conveyance or transfer the properties and assets of the Borrower substantially as an
entirety;




     (ii) if a Consolidated Subsidiary is the surviving corporation or is the Person that
acquires the property and assets of the Borrower substantially as an entirety, it shall
expressly assume the performance of every covenant of this Agreement and of the Notes on
the part of the Borrower to be performed or observed;




     (iii) immediately after giving effect to such transaction, no Default shall have
occurred and be continuing; and




     (iv) if the Borrower is not the surviving corporation, the Borrower has delivered to
the Administrative Agent an Officer’s Certificate and a legal opinion of its General
Counsel, Associate General Counsel or Assistant General Counsel, upon the express
instruction of the Borrower for the benefit of the Administrative Agent and the Lenders,



40









 






each stating that such transaction complies with this Section and that all conditions
precedent herein provided for relating to such transaction have been complied with.



     (b) Upon any consolidation by the Borrower with, or merger by the Borrower into, a
Consolidated Subsidiary or any conveyance or transfer of the properties and assets of the Borrower
substantially as an entirety to a Consolidated Subsidiary, the Consolidated Subsidiary into which
the Borrower is merged or consolidated or to which such conveyance or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Borrower, as the
case may be, under this Agreement with the same effect as if such Consolidated Subsidiary had been
named as the Borrower, as the case may be, herein, and thereafter, in the case of a transfer or
conveyance permitted by Section 5.07(a), the Borrower shall be relieved of all obligations and
covenants under this Agreement and the Notes.



     Section 5.08. Negative Pledge. Neither the Borrower nor any Restricted Subsidiary will
create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:



     (a) Liens existing on the date of this Agreement;



     (b) Liens securing Debt of a Restricted Subsidiary owing to the Borrower or to another
Restricted Subsidiary;



     (c) any Lien existing on any asset of any person at the time such person becomes a Subsidiary
and not created in contemplation of such event;



     (d) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all
or any part of the cost of acquiring such asset (and/or, in the case of the acquisition of a
business, any Lien on the equity and/or assets of the acquired entity), provided that such Lien
attaches to such asset concurrently with or within 180 days after the acquisition thereof;



     (e) any Lien on any asset of any person existing at the time such person is merged or
consolidated with or into the Borrower or a Restricted Subsidiary and not created in contemplation
of such event;



     (f) any Lien existing on any asset prior to the acquisition thereof by the Borrower or a
Subsidiary and not created in contemplation of such acquisition;



     (g) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt
secured by any Lien permitted by any of the foregoing clauses of this Section, provided that such
Debt is not increased and is not secured by any additional assets;



41









 





     (h) Liens in favor of any customer (including any Governmental Authority) to secure partial,
progress, advance or other payments or performance pursuant to any contract or statute or to secure
any related indebtedness or to secure Debt guaranteed by a Governmental Authority;



     (i) Liens incurred in the ordinary course of business not securing Debt which do not impair in
any material respect the usefulness in the business of the Borrower and its Restricted Subsidiaries
of the assets to which such Liens attach; materialmen’s, suppliers’, tax or other similar Liens
arising in the ordinary course of business securing obligations which are not overdue or are being
contested in good faith by appropriate proceedings; Liens arising by operation of law in favor of
any lender to the Borrower or any Restricted Subsidiary in the ordinary course of business
constituting a banker’s lien or right of offset in moneys of the Borrower or a Restricted
Subsidiary deposited with such lender in the ordinary course of business; and appeal bonds in
respect of appeals being prosecuted in good faith;



     (j) Liens on cash and cash equivalents securing Derivatives Obligations, provided that the
aggregate amount of cash and cash equivalents subject to such Liens may at no time exceed
$50,000,000;



     (k) Liens securing Debt equally and ratably securing the Loans and such Debt; provided that
the Required Lenders may, in their sole discretion, refuse to take any Lien on any asset (which
refusal will not limit the Borrower’s or any Restricted Subsidiary’s ability to incur a Lien
otherwise permitted by this Section 5.08(k)); such Lien may equally and ratably secure the Loans
and any other obligation of the Borrower or any of its Subsidiaries, other than an obligation that
is subordinated to the Loans;



     (l) Liens securing contingent obligations in an aggregate principal amount not to exceed
$25,000,000; and



     (m) Liens not otherwise permitted by the foregoing clauses of this Section securing
obligations in an aggregate principal or face amount at any date not to exceed at the time of
incurrence the greater of 12.5% of Consolidated Net Worth or $75,000,000.



     For the avoidance of doubt, the creation of a security interest arising solely as a result of,
or the filing of UCC financing statements in connection with, any sale by the Borrower or any of
its Subsidiaries of accounts receivable not prohibited by Section 5.07 shall not constitute a Lien
prohibited by this covenant.



     Section 5.09. Leverage Ratio. The Leverage Ratio shall not exceed 3.25 to 1.00 as of the end
of any fiscal quarter; provided that if (i) Consolidated Debt has increased in connection with a
Specified Acquisition, (ii) as a consequence of such Specified Acquisition, the rating of long-term
unsecured debt of the Borrower has not been suspended, withdrawn or fallen below BBB by Standard &



42









 




Poor’s (a division of The McGraw-Hill Companies, Inc.) or Baa2 by Moody’s Investors Service,
Inc. and (iii) the Administrative Agent has received a Specified Acquisition Notice within 10 days
of consummation of such Specified Acquisition, then, for a period of 180 consecutive days following
the consummation of such Specified Acquisition, the additional Consolidated Debt in connection with
such Specified Acquisition shall be excluded from Consolidated Debt for purposes of calculating the
Leverage Ratio, but only if the Leverage Ratio calculated without such exclusion at no time exceeds
3.50 to 1.00.





For purposes of this Section 5.09,




     (i) a “Specified Acquisition” means any single acquisition by the Borrower
or a Subsidiary of the Borrower of any Person (the “Target”) that (x) is in the
same line or lines of business as the Borrower or in the judgment of the Borrower
is related to such line or lines of business and (y) such Target’s board of
directors have not objected to such acquisition; and




     (ii) a “Specified Acquisition Notice” means a notice delivered by the
Borrower notifying the Administrative Agent of the Specified Acquisition and
stating that the conditions in clauses (i) and (ii) to the proviso to the
Leverage Ratio above have been satisfied.



     Section 5.10. Use of Loans. The Borrower will use the proceeds of the Loans for any lawful
corporate purposes.



     Section 5.11. Investments. Neither the Borrower nor any Subsidiary will hold, make or
acquire any Investment in any Person other than:



     (a) Investments in Temporary Cash Investments and other Investments in cash or cash
equivalents from time to time approved by the Board of Directors of the Borrower;



     (b) Investments comprised of debt consideration received in connection with the sale of assets
(including any extensions, renewals and modifications thereof);



     (c) Investments existing on the date of the Original Agreement or which the Borrower or any
Restricted Subsidiary has, as of the date of the Original Agreement, committed to make and which
are set forth on Schedule 5.11(c) (including any extensions, renewals and modifications thereof);



     (d) Investments in any Subsidiary or guaranties of obligations of any Subsidiary whose
principal business on the date of the making of such Investment or after giving effect to such
Investment is either (i) the same line or lines of business as the Borrower or (ii) in the judgment
of the Borrower related to such



43









 




line or lines of business (it being understood that Schedule 5.11(d) contains a nonexhaustive
list of certain related businesses as of the date of the Original Agreement);




     (e) Investments by any Subsidiary in the Borrower; and



     (f) Additional Investments not otherwise included in the foregoing clauses of this Section
5.11 if, after giving effect to such Investment, the outstanding amount (computed by taking the
difference of (x) the original cash purchase price of all such Investments less (y) the sum of (i)
all payments (including interest and dividends) and repayments of principal or capital plus (ii)
all proceeds from the sale of such Investment) of all Investments permitted by this clause (f) does
not exceed $225,000,000.



     Section 5.12. Transactions with Affiliates. The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, pay any funds to or for the account of, make any investment
(whether by acquisition of stock or indebtedness, by loan, advance, transfer of property, guarantee
or other agreement to pay, purchase or service, directly or indirectly, any Debt, or otherwise) in,
lease, sell, transfer or otherwise dispose of any assets, tangible or intangible, to, or
participate in, or effect, any transaction with, any Affiliate except (i) transactions on an
arms-length basis on terms at least as favorable to the Borrower or such Subsidiary Affiliate than
could have been obtained from a third party who was not an Affiliate, and (ii) transactions
described in this Section 5.12 that would not be reasonably likely to have a Material Adverse
Effect.



ARTICLE 6

Defaults




     Section 6.01. Event of Default. If one or more of the following events (“Events of Default”)
shall have occurred and be continuing:



     (a) the Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation when
due;



     (b) the Borrower shall fail to pay within 5 days of the due date thereof (i) any facility fee
or (ii) interest on any Loan;



     (c) the Borrower shall fail to pay within 30 days after a request for payment by any Lender
acting through the Administrative Agent any other amount payable under this Agreement;



     (d) the Borrower shall fail to observe or perform any agreement contained in Section 5.01(e)
or Section 5.07 through 5.11 (and, with respect to Section 5.10 and 5.11, such failure shall have
continued for 10 days after notice



44









 




thereof has been given to the Borrower by the Administrative Agent at the request of the
Required Lenders);




     (e) the Borrower shall fail to observe or perform any covenant or agreement contained in this
Agreement (other than those covered by clauses (a) through (d) above) for 30 days after notice
thereof has been given to the Borrower by the Administrative Agent at the request of the Required
Lenders;



     (f) any representation, warranty or certification made by the Borrower in this Agreement or in
any certificate, or writing delivered pursuant to this Agreement shall prove to have been incorrect
in any material respect when made and such deficiency shall remain unremedied for five days after
notice thereof shall have been given to the Borrower by the Administrative Agent at the request of
the Required Lenders;



     (g) any Material Financial Obligations shall become due before stated maturity by the
acceleration of the maturity thereof by reason of default, or any Material Financial Obligations
shall become due by its terms and shall not be paid and, in any case aforesaid in this clause (g),
corrective action satisfactory to the Required Lenders shall not have been taken within 5 days
after written notice of the situation shall have been given to the Borrower by the Administrative
Agent at the request of the Required Lenders;



     (h) the Borrower or any Restricted Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to authorize any of the foregoing;



     (i) an involuntary case or other proceeding shall be commenced against the Borrower or any
Restricted Subsidiary seeking liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 90 days; or an order for relief shall be entered against
the Borrower or any Restricted Subsidiary under the federal bankruptcy laws as now or hereafter in
effect;



     (j) a final judgment for the payment of money in excess of $50,000,000 shall have been entered
against the Borrower or any Restricted Subsidiary, and the Borrower or such Subsidiary shall not
have satisfied the same within 60 days,



45









 




or caused execution thereon to be stayed within 60 days, and such failure to satisfy or stay
such judgment shall remain unremedied for 5 days after notice thereof shall have been given to the
Borrower by the Administrative Agent at the request of the Required Lenders;




     (k) a final judgment either (1) requiring termination or imposing liability (other than for
premiums under Section 4007 of ERISA) under Title IV of ERISA in respect of, or requiring a trustee
to be appointed under Title IV of ERISA to administer, any Plan or Plans having aggregate Unfunded
Liabilities in excess of $50,000,000 or (2) in an action relating to a Multiemployer Plan involving
a current payment obligation in excess of $50,000,000, which judgment, in either case, has not been
satisfied or stayed within 60 days and such failure to satisfy or stay is unremedied for 5 days
after notice thereof shall have been given to the Borrower by the Administrative Agent at the
request of the Required Lenders; or



     (l) any person or group of persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 35% or more of
the outstanding shares of common stock of the Borrower; or during any two-year period, individuals
who at the beginning of such period constituted the Borrower’s Board of Directors (together with
any new director whose election by the Board of Directors or whose nomination for election by the
shareholders of the Borrower was approved by a vote of at least two-thirds of the directors then in
office who either were directors as 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
directors then in office;



then, and in every such event, the Administrative Agent shall, if requested by the Required
Lenders, (i) by notice to the Borrower terminate the Commitments and they shall thereupon
terminate, and (ii) by notice to the Borrower declare the Loans, interest accrued thereon and all
other amounts payable hereunder to be, and the same shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower; provided that in the event of (A) the filing by the Borrower of a petition,
or (B) an actual or deemed entry of an order for relief with respect to the Borrower, under the
federal bankruptcy laws as now or hereafter in effect, without any notice to the Borrower or any
other act by the Administrative Agent or the Lenders, the Commitments shall thereupon terminate and
the Loans, interest accrued thereon and all other amounts payable hereunder shall become
immediately due and payable without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower.



     Section 6.02. Cash Cover. The Borrower agrees, in addition to the provisions of Section 6.01
hereof, that upon the occurrence and during the continuance of any Event of Default, it shall, if
requested by the Administrative



46









 




Agent upon the instruction of the Required Lenders, pay to the Administrative Agent an amount
in immediately available funds (which funds shall be held as collateral pursuant to arrangements
satisfactory to the Administrative Agent) equal to the aggregate amount available for drawing under
all Letters of Credit then outstanding at such time, provided that, in the event of (A) the filing
by the Borrower of a petition, or (B) an actual or deemed entry of an order for relief with respect
to the Borrower, under the federal bankruptcy laws as now or hereafter in effect, the Borrower
shall pay such amount forthwith without any notice or demand or any other act by the Administrative
Agent or the Lenders.




ARTICLE 7

The Administrative Agent




     Section 7.01. Appointment and Authorization. Each Lender irrevocably appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the Notes as are delegated to the Administrative Agent by the terms hereof
or thereof, together with all such powers as are reasonably incidental thereto; provided, however,
that the Administrative Agent shall not commence any legal action or proceeding before a court of
law on behalf of any Lender without such Lender’s prior written consent.



     Section 7.02. Administrative Agent and Affiliates. JPMorgan Chase Bank, N.A. shall have the
same rights and powers under this Agreement as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent, and JPMorgan Chase Bank, N.A.
and its affiliates may accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or affiliate of the Borrower as if it were not the
Administrative Agent. The term “Lender” or “Lenders” shall, unless expressly indicated, include
JPMorgan Chase Bank, N.A. (and any successor acting as Administrative Agent) in its capacity as a
Lender.



     Section 7.03. Action by Administrative Agent. The obligations of the Administrative Agent
hereunder are only those expressly set forth herein. Without limiting the generality of the
foregoing, the Administrative Agent shall not be required to take any action with respect to any
Default, except as expressly provided in Article 6.



     Section 7.04. Consultation with Experts. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable to any Lender for any action taken or omitted to be taken by
it in good faith in accordance with the advice of such counsel, accountants or experts.



     Section 7.05. Liability of Administrative Agent. Neither the Administrative Agent nor any of
its affiliates nor any of their respective directors,



47









 




officers, agents or employees shall be liable for any action taken or not taken by it in
connection herewith (i) with the consent or at the request of the Required Lenders or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Administrative Agent nor
any of its affiliates nor any of their respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty
or representation made in connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Borrower; (iii) the
satisfaction of any condition specified in Article 3, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the Notes or any other instrument or writing furnished in connection herewith. The
Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex, facsimile transmission
or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement
with reference to the Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such
term is used merely as a matter of market custom and is intended to create or reflect only an
administrative relationship between independent contracting parties.




     Section 7.06. Indemnification. Each Lender shall, ratably in accordance with its Commitment,
indemnify the Administrative Agent and each Issuing Lender, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the Borrower) against
any cost, expense (including reasonable counsel fees and disbursements), claim, demand, action,
loss or liability (except such as result from such indemnitees’ gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this Agreement or any
action taken or omitted by such indemnitees hereunder.



     Section 7.07. Credit Decision. Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking any action under this Agreement.



     Section 7.08. Successor Administrative Agents. The Administrative Agent may resign at any
time by giving notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Borrower shall, so long as no Default shall have occurred and be continuing, have the right, with
the consent of the Required Lenders, to appoint any of the Lenders as a successor Administrative



48









 





Agent. In the event that a Default has occurred and is continuing, the Required Lenders shall
have the right to appoint the successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed, and shall have accepted such appointment, within 60 days after the
retiring Administrative Agent gives notice of resignation, the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $50,000,000. Upon the acceptance of its
appointment as an Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with all the rights and
duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder as Administrative Agent. After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this
Article shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent.



     Section 7.09. Administrative Agent’s Fees. The Borrower shall pay to the Administrative
Agent for its own account fees in the amounts and at the times previously agreed upon between the
Borrower and the Administrative Agent.



     Section 7.10. Other Agents. Nothing in this Agreement shall impose upon any Agent other than
the Administrative Agent, in its capacity as such an Agent, any obligation or liability whatsoever.



ARTICLE 8

Change in Circumstances




     Section 8.01. Increased Cost and Reduced Return; Capital Adequacy. (a) If after (x) the date
hereof, in the case of any Committed Loan or Letter of Credit or any obligation to make Committed
Loans or issue or participate in any Letter of Credit, or (y) the date of the related Competitive
Bid Quote, in the case of any Competitive Bid Loan, a Change in Law shall impose, modify or deem
applicable any reserve, special deposit, assessment or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System
pursuant to Regulation D or otherwise, as herein provided) against assets of, deposits with or for
the account of, or credit extended by, any Lender or shall impose on any Lender or the London
interbank market any other condition affecting its Fixed Rate Loans, its Note or its obligations to
make Fixed Rate Loans or its obligations hereunder in respect of Letters of Credit and the result
of any of the foregoing is to increase the cost to such Lender (or its Applicable Lending Office)
of making or maintaining any Fixed Rate Loan or of issuing or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by such Lender under this
Agreement or under its



49









 




Note, by an amount deemed by such Lender to be material, then, within 15 days after written
demand therefor made through the Administrative Agent, in the form of the certificate referred to
in Section 8.01(c), the Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction; provided that the Borrower shall not
be required to pay any such compensation with respect to any period prior to the 30th day before
the date of any such demand.




     (b) Without limiting the effect of Section 8.01(a) (but without duplication), if any Lender
determines at any time after the date on which this Agreement becomes effective that a Change in
Law will have the effect of increasing the amount of capital required to be maintained by such
Lender (or its Parent) based on the existence of such Lender’s Loans, Commitment and/or other
obligations hereunder, then the Borrower shall pay to such Lender, within 15 days after its written
demand therefor made through the Administrative Agent in the form of the certificate referred to in
Section 1.01(c), such additional amounts as shall be required to compensate such Lender for any
reduction in the rate of return on capital of such Lender (or its Parent) as a result of such
increased capital requirement; provided that the Borrower shall not be required to pay any such
compensation with respect to any period prior to the 30th day before the date of any such demand;
provided further, however, that to the extent (i) a Lender shall increase its level of capital
above the level maintained by such Lender on the date of this Agreement and there has not been a
Change in Law or (ii) there has been a Change in Law and a Lender shall increase its level of
capital by an amount greater than the increase attributable (taking into consideration the same
variables taken into consideration in determining the level of capital maintained by such Lender on
the date of this Agreement) to such Change in Law, the Borrower shall not be required to pay any
amount or amounts under this Agreement with respect to any such increase in capital. Thus, for
example, a Lender which is “adequately capitalized” (as such term or any similar term is used by
any applicable bank regulatory agency having authority with respect to such Lender) may not require
the Borrower to make payments in respect of increases in such Lender’s level of capital made under
the circumstances described in clause (i) or (ii) above which improve its capital position from
“adequately capitalized” to “well capitalized” (as such term or any similar term is used by any
applicable bank regulatory agency having authority with respect to such Lender).



     (c) Each Lender will promptly notify the Borrower, through the Administrative Agent, of any
event of which it has knowledge, occurring after the date on which this Agreement becomes
effective, which will entitle such Lender to compensation pursuant to this Section 8.01 and will
designate a different Applicable Lending Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate of any Lender claiming compensation under
this Section 8.01 and setting forth the additional amount or amounts to be paid to it hereunder and
setting forth the basis for the



50









 




determination thereof shall be conclusive in the absence of manifest error. In determining
such amount, such Lender shall act reasonably and in good faith, and may use any reasonable
averaging and attribution methods.




     Section 8.02. Substitute Rate. Anything herein to the contrary notwithstanding, if within
two Euro-Dollar Business Days, in the case of Euro-Dollar Loans or Competitive Bid LIBOR Loans,
prior to the first day of an Interest Period none of the Reference Banks is, for any reason
whatsoever, being offered Dollars for deposit in the relevant market for a period and amount
relevant to the computation of the rate of interest on a Fixed Rate Loan for such Interest Period,
the Administrative Agent shall give the Borrower and each Lender prompt notice thereof and on what
would otherwise be the first day of such Interest Period such Loans shall be made as Base Rate
Loans.



     Section 8.03. Illegality. (a) Notwithstanding any other provision herein, if, after the date
on which this Agreement becomes effective, a Change in Law shall make it unlawful or impossible for
any Lender to (i) honor any Commitment it may have hereunder to make any Euro-Dollar Loan, then
such Commitment shall be suspended, or (ii) maintain any Euro-Dollar Loan or any Competitive Bid
LIBOR Loan, then all Euro-Dollar Loans and Competitive Bid LIBOR loans of such Lender then
outstanding shall be converted into Base Rate Loans as provided in Section 8.03(b), and any
remaining Commitment of such Lender hereunder to make Euro-Dollar Loans (but not other Loans) shall
be immediately suspended, in either case until such Lender may again make and/or maintain
Euro-Dollar Loans (as the case may be), and borrowings from such Lender, at a time when borrowings
from the other Lenders are to be of Euro-Dollar Loans, shall be made, simultaneously with such
borrowings from the other Lenders, by way of Base Rate Loans. Upon the occurrence of any such
change, such Lender shall promptly notify the Borrower thereof (with a copy to the Administrative
Agent), and shall furnish to the Borrower in writing evidence thereof certified by such Lender.
Before giving any notice pursuant to this Section 8.03, such Lender shall designate a different
Applicable Lending Office if such designation will avoid the need for giving such notice and will
not, in the sole reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.



     (b) Any conversion of any outstanding Euro-Dollar Loan or an outstanding Competitive Bid Loan
which is required under this Section 1.03 shall be effected immediately (or, if permitted by
applicable law, on the last day of the Interest Period therefor).



     Section 8.04. Taxes on Payments. (a) All payments pursuant to this Agreement shall be made
free and clear of and without any deduction or withholding for or on account of any present and
future taxes, assessments or governmental charges imposed by the United States, or any political
subdivision or taxing authority thereof or therein, excluding taxes imposed on its net income,
branch profit taxes and franchise taxes (all such non-excluded taxes being



51









 




hereinafter called “Taxes”), except as expressly provided in this Section 8.04. If any Taxes
are imposed and required by law to be deducted or withheld from any amount payable to any Lender,
then the Borrower shall (i) increase the amount of such payment so that such Lender will receive a
net amount (after deduction of all Taxes) equal to the amount due hereunder, (ii) pay such Taxes to
the appropriate taxing authority for the account of such Lender, and (iii) as promptly as possible
thereafter, send such Lender evidence of original or certified receipt showing payment thereof,
together with such additional documentary evidence as such Lender may from time to time require.
If the Borrower fails to perform its obligations under (ii) or (iii) above, the Borrower shall
indemnify such Lender for any incremental taxes, interest or penalties that may become payable as a
result of any such failure; provided, however, that the Borrower will not be required to make any
payment to any Lender under this Section 8.04 if withholding is required in respect of such Lender
by reason of such Lender’s inability or failure to furnish under subsection (c) an extension or
renewal of a Form W-8ECI or Form W-8BEN (or successor form), as applicable, unless such inability
results from an amendment to or a change in any applicable law or regulation or in the
interpretation thereof by any regulatory authority (including without limitation any change in an
applicable tax treaty), which amendment or change becomes effective after the date hereof.




     (b) The Borrower shall indemnify the Administrative Agent and each Lender against any present
or future transfer taxes, stamp or documentary taxes, excise or property taxes, assessments or
charges made by any Governmental Authority by reason of the execution, delivery, registration or
enforcement of this Agreement or any Notes (hereinafter referred to as “Other Taxes”).



     (c) Subject to subsection (d) below, each Lender that is a foreign person (i.e. a person who
is not a United States person for United States federal income tax purposes) agrees that it shall
deliver to the Borrower (with a copy to the Administrative Agent) (i) within twenty Domestic
Business Days after the date on which this Agreement becomes effective, two duly completed copies
of United States Internal Revenue Service Form W-8ECI or W-8BEN, as appropriate, indicating that
such Lender is entitled to receive payments under this Agreement without deduction or withholding
of any United States federal income taxes, or is entitled to a reduced rate of United States
withholding taxes under an applicable income tax treaty, (ii) from time to time, such extensions or
renewals of such forms (or successor forms) as may reasonably be requested by the Borrower but only
to the extent such Lender determines that it may properly effect such extensions or renewals under
applicable tax treaties, laws, regulations and directives and (iii) in the event of a transfer of
any Loan to a subsidiary or affiliate of such Lender, a new Internal Revenue Service Form W-8ECI or
W-8BEN (or any successor form), as the case may be, for such subsidiary or affiliate indicating
that such subsidiary or affiliate is, on the date of delivery thereof, entitled to receive payments
under this Agreement without deduction or withholding of any United States federal income taxes or
is entitled to a reduced rate of United States



52









 




withholding tax under an applicable income tax treaty. The Borrower and the Administrative
Agent shall each be entitled to rely on such forms in its possession until receipt of any revised
or successor form pursuant to the preceding sentence.




     (d) If a Lender at the time it first becomes a party to this Agreement (or because of a change
in an Applicable Lending Office) is subject to a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from Taxes. For any
period with respect to which a Lender has failed to provide the Borrower with the appropriate form
pursuant to Section 1.04(c) (unless such failure is due to a change in treaty, law or regulation,
or in the interpretation thereof by any regulatory authority, occurring subsequent to the date on
which a form originally was required to be provided), such Lender shall not be entitled to
additional payments under Section 1.04(a) with respect to Taxes imposed by the United States;
provided, however, that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender shall reasonably request to assist
such Lender to recover such Taxes.



     (e) If the Borrower is required to pay additional amounts to or for the account of any Lender
pursuant to this Section 1.04, then such Lender will change the jurisdiction of one or more
Applicable Lending Offices so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not otherwise disadvantageous
to such Lender.



     (f) If any Lender is able to apply for any credit, deduction or other reduction in Taxes or
Other Taxes in an amount which is reasonably determined by such Lender to be material, which arises
by reason of any payment made by the Borrower pursuant to this Section 1.04, such Lender will use
reasonable efforts, excluding the institution of any judicial proceeding, to obtain such credit,
deduction or other reduction and, upon receipt thereof, will pay to the Borrower an amount, not
exceeding the amount of such payment by the Borrower, equal to the net after-tax value to such
Lender, in its good faith determination, of such part of such credit, deduction or other reduction
as it determines to be allocable to such payment by the Borrower, having regard to all of its
dealings giving rise to similar credits, deductions or other reductions during the same tax period
and to the cost of obtaining the same; provided, however, that (i) such Lender shall not be
obligated to disclose to the Borrower any information regarding its tax affairs or computations and
(ii) nothing contained in this Section 1.01(f) shall be construed so as to interfere with the
right of such Lender to arrange its tax affairs as it deems appropriate.



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ARTICLE 9

Miscellaneous




     Section 9.01. Termination of Commitment of a Lender; New Lenders. (a) (1) Upon receipt of
notice from any Lender for compensation or indemnification pursuant to Section 1.01(c) or Section
1.01, (2) upon receipt of notice that the Commitment of a Lender to make Euro-Dollar Loans has been
suspended, the Borrower shall have the right to terminate the Commitment in full of such Lender (a
“Retiring Lender”). The termination of the Commitment of a Retiring Lender pursuant to this
Section 2.01(a) shall be effective on the tenth Domestic Business Day following the date of a
notice of such termination to the Retiring Lender through the Administrative Agent, subject to the
satisfaction of the following conditions:




     (i) in the event that on such effective date there shall be any Loans outstanding
hereunder, the Borrower shall have prepaid on such date (x) the aggregate principal amount
of such Loans held by the Retiring Lender only and (y) if and to the extent necessary, an
additional aggregate principal amount of the Committed Loans of the other Lenders such
that, after giving effect to clause (iii) below, no Lender’s Outstanding Committed Amount
shall exceed its Commitment and the Total Outstanding Amount shall not exceed the Total
Commitments;




     (ii) in addition to the payment of the principal of the Loans held by the Retiring
Lender pursuant to clause (i) above, the Borrower shall have paid such Retiring Lender
all accrued interest thereon, and facility fee and any other amounts then payable to it
hereunder, including, without limitation, all amounts payable by the Borrower to such
Lender under Section 2.14 by reason of the prepayment of Loans pursuant to clause (i) with
respect to the period ending on such effective date; provided that the provisions of
Section 1.01, Section 1.01 and Section 2.04 shall survive for the benefit of any Retiring
Lender; and




     (iii) the respective Letter of Credit Liabilities of the Lenders shall be
redetermined as of the effective date of such termination.



     Upon satisfaction of the conditions set forth in clauses (i), (ii) and (iii) above, such
Lender shall cease to be a Lender hereunder.



     (b) In lieu of the termination of a Lender’s Commitment pursuant to Section 2.01(a), the
Borrower may notify the Administrative Agent that the Borrower desires to replace such Retiring
Lender with a new bank or banks (which may be one or more of the Lenders), which will purchase the
Loans and assume the Commitment and Letter of Credit Liabilities of the Retiring Lender. Upon the
Borrower’s selection of a bank to replace a Retiring Lender, such bank’s agreement thereto and the
fulfillment of the conditions to assignment and




54












 




assumption set forth in Section 2.08(c)(iii) such bank shall become a Lender hereunder for all
purposes in accordance with Section 2.08(c)(iii).




     Section 9.02. Notices. (a) All notices, requests and other communications to any party
hereunder shall be in writing (including bank wire, telex, facsimile transmission or similar
writing) and shall be given to such party: (i) in the case of the Borrower or the Administrative
Agent, at its address, facsimile number or telex number set forth on the signature pages hereof,
(ii) in the case of any Lender, at its address, facsimile number or telex number set forth in its
Administrative Questionnaire or (iii) in the case of any party, such other address, facsimile
number or telex number as such party may hereafter specify for the purpose by notice to the
Administrative Agent and the Borrower. Each such notice, request or other communication shall be
effective (x) if given by telex, when such telex is transmitted to the telex number specified in
this Section and the appropriate answerback is received, (y) if given by facsimile transmission,
when transmitted to the facsimile number specified in this Section and confirmation of receipt is
received or (z) if given by any other means, when delivered at the address specified in this
Section.



     (b) Notices and other communications to the Lenders 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 pursuant to Article 2 if such Lender has notified the Administrative Agent
that it is incapable of receiving notices under such Article by electronic communication. The
Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices or communications.



     (c) 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.



     Section 9.03. No Waivers. No failure or delay by either Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any Note shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of



55









 




any other right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.




     Section 9.04. Expenses; Indemnification. (a) The Borrower shall pay (i) reasonable
out-of-pocket expenses, including the reasonable fees and expenses of special counsel for the
Administrative Agent in connection with the preparation of this Agreement and (ii) if an Event of
Default occurs, all reasonable out-of-pocket expenses incurred by the Administrative Agent and the
Lenders, including reasonable fees and expenses of counsel, in connection with such Event of
Default and collection and other enforcement proceedings resulting therefrom.



     (b) The Borrower agrees to indemnify the Administrative Agent and each Lender, their
respective affiliates and the respective directors, officers, Administrative Agents and employees
of the foregoing (each an “Indemnitee”) and hold each Indemnitee harmless from and against any and
all liabilities, losses, damages, costs and reasonable expenses of any kind, including, without
limitation, the reasonable fees and disbursements of counsel, incurred by such Indemnitee in
response to or in defense of any investigative, administrative or judicial proceeding brought or
threatened against the Administrative Agent or any Lender relating to or arising out of this
Agreement or any actual or proposed use of proceeds of Loans; provided that no Indemnitee shall
have the right to be indemnified hereunder (i) to the extent such indemnification relates to
relationships between or among each of, or any of, the Administrative Agent, the Lenders or any
Assignee or Participant or (ii) for such Indemnitee’s own gross negligence or willful misconduct.



     Section 9.05. Pro Rata Treatment. Except as expressly provided in this Agreement with
respect to Competitive Bid Loans or otherwise, (a) each borrowing from, and change in the
Commitments of, the Lenders shall be made pro rata according to their respective Commitments, and
(b) each payment and prepayment on the Loans shall be made to all the Lenders, pro rata in
accordance with the unpaid principal amount of the Loans held by each of them.



     Section 9.06. Sharing of Set-offs. Each Lender agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise, receive payment of a proportion of the aggregate
amount then due with respect to the Loans and Letter of Credit Liabilities held by it which is
greater than the proportion received by any other Lender in respect of the aggregate amount then
due with respect to the Loans and Letter of Credit Liabilities held by such other Lender, the
Lender receiving such proportionately greater payment shall purchase such participations in the
Loans and Letter of Credit Liabilities held by the other Lenders, and such other adjustments shall
be made, as may be required so that all such payments shall be shared by the Lenders pro rata;
provided nothing in this Section shall impair the right of any Lender to exercise any right of
set-off or counterclaim it may have and to apply the amount subject to such exercise to the payment
of indebtedness of the Borrower other than its indebtedness under this Agreement.



56









 





     Section 9.07. Amendments and Waivers. (a) Any provision of this Agreement or the Notes may
be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Lenders (and, if the rights or duties of any Agent or Issuing Lender are
affected thereby, by it). Notwithstanding the foregoing, no such amendment or waiver shall,




     (i) unless signed by all affected Lenders,




          (A) increase any Commitment,




     (B) reduce the principal of or rate of interest on any Loan or the amount
to be reimbursed in respect of any Letter of Credit or any interest thereon or
any fees hereunder,




     (C) postpone the date fixed for any payment of principal of or interest on
any loan or for reimbursement in respect of any Letter of Credit or interest
thereon or any fees hereunder or for termination of any Commitment; or,




     (ii) unless signed by all Lenders,




          (A) change the percentage of the Credit Exposures, which shall be required
for the Lenders or any of them to take any action under this Section or any
other provision of this Agreement,




          (B) amend or waive the provisions of this Section 2.07.



     (b) The exercise of the Borrower of its right to extend the Termination Date by operation of
Section 2.01(d) shall not constitute an amendment subject to this Section 9.07. Furthermore, the
exercise by the Borrower of its right to decrease the Commitments pursuant to Section 2.09 shall
not be deemed to require the consent of any party to this Agreement. For the avoidance of doubt,
the exercise by the Borrower of its option to increase the aggregate amount of the Commitments
pursuant to Section 2.17 shall not require the consent of any Person except for the consent of the
Administrative Agent, any Additional Lender and each Lender whose Commitment is to be increased.



     Section 9.08. Successors and Assigns; Participations; Novation. (a) This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns; provided that, except in accordance with Section 5.04 and 5.07, the Borrower may not
assign or transfer any of its rights or obligations under this Agreement without the consent of all
Lenders.



57









 





     (b) Any Lender may, without the consent of the Borrower, but upon prior written notification
to the Borrower, at any time sell to one or more banks or other financial institutions (each a
“Participant”) participating interests in any Loan owing to such Lender, any Note held by such
Lender, the Commitment of such Lender hereunder, the Letter of Credit Liabilities of such Lender
and any other interest of such Lender hereunder; provided that no prior notification to the
Borrower is required in connection with the sale of a participating interest in a Competitive Bid
Loan. In the event of any such sale by a Lender of a participating interest to a Participant, such
Lender’s obligations under this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of its Note or Notes,
if any, for all purposes under this Agreement and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement pursuant to which a Lender may grant such a
participating interest shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Lender will not agree to any
modification, amendment or waiver of this Agreement described in clause (A), (B) or (C) of Section
9.07(a)(i) affecting such Participant without the consent of the Participant; provided further that
such Participant shall be bound by any waiver, amendment or other decision that all Lenders shall
be required to abide by pursuant to a vote by Required Lenders. Subject to the provisions of
Section 9.08(d), the Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article 8 with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection (c) or (g) below
shall be given effect for purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).



     (c) (i) Any Lender may at any time sell to one or more Eligible Institutions (each an
“Assignee”) all or a portion of its rights and obligations under this Agreement and the Notes.
Each Assignee shall assume all such rights and obligations pursuant to an Assignment and Assumption
Agreement. In no event shall (A) any Commitment of a transferor Lender (together with the
Commitment of any affiliate of such Lender), after giving effect to any sale pursuant to this
subsection (c), be less than $5,000,000, (B) any Commitment of an Assignee (together with the
Commitment of any affiliate of such Assignee), after giving effect to any sale pursuant to this
subsection (c), be less than $5,000,000, except in each case as may result upon the transfer by a
Lender of its Commitment in its entirety or (C) any sale pursuant to this subsection (c) result in
the transferee Lender (together with its affiliates) holding more than 35% of the aggregate
Commitments, except to the extent that the Borrower and the Administrative Agent’s consent to such
sale.



58









 






     (ii) No interest may be sold by a Lender pursuant to this subsection (c) without the
prior written consent of the Administrative Agent, Issuing Lenders and, so long as no
Event of Default shall exist at the time, the Borrower, which consents, in each case,
shall not be unreasonably withheld, provided however that sales to an affiliate of such
Lender, or to another Lender, will not require the consent of the Borrower. For the
purposes of this subsection (c)(ii), the withholding of consent by the Borrower shall not
be deemed unreasonable if based solely upon the Borrower’s desire to (A) balance relative
loan exposures to such Eligible Institution among all credit facilities of the Borrower or
(B) avoid payment of any additional amounts payable to such Eligible Institution under
Article 8 which would arise from such assignment.




     (iii) Upon (A) execution of an Assignment and Assumption Agreement, (B) delivery by
the transferor Lender of an executed copy thereof, together with notice that the payment
referred to in clause (C) below shall have been made, to the Borrower and the
Administrative Agent, (C) payment by such Assignee to such transferor Lender of an amount
equal to the purchase price agreed between such transferor Lender and such Assignee and
(D) if the Assignee is organized under the laws of any jurisdiction other than the United
States or any state thereof, evidence satisfactory to the Administrative Agent and the
Borrower of compliance with the provisions of Section 2.08(f), such Assignee shall for all
purposes be a Lender party to this Agreement and shall have all the rights and obligations
of a Lender under this Agreement to the same extent as if it were an original party hereto
with a Commitment as set forth in such Assignment and Assumption Agreement, and the
transferor Lender shall be released from its obligations hereunder to a correspondent
extent, and no further consent or action by the Borrower, the Lenders or the
Administrative Agents shall be required to effectuate such transfer. Each Assignee shall
be bound by any waiver, amendment or other decision that all Lenders shall be required to
abide by pursuant to a vote by Required Lenders.




     (iv) Upon the consummation of any transfer to an Assignee pursuant to this
subsection (c), the transferor Lender, the Administrative Agent and the Borrower shall
make appropriate arrangements so that, if requested by the transferor Lender or the
Assignee, a new Note or Notes shall be delivered from the Borrower to the transferor
Lender and/or such Assignee. In connection with any such assignment, the Assignee or the
transferor Lender shall pay to the Administrative Agent an administrative fee for
processing such assignment in the amount of $3,500.



     (d) No Assignee, Participant or other transferee (including any successor Applicable Lending
Office) of any Lender’s rights shall be entitled to receive any greater payment under Section 8.01
than such Lender would have been entitled to receive with respect to the rights transferred, unless
such transfer



59









 




is made with the Borrower’s prior written consent or by reason of the provisions of Section
8.01 or Section 8.03 requiring such Lender to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such greater payment did
not exist.




     (e) Each Lender may, upon the written consent of the Borrower, which consent shall not be
unreasonably withheld, disclose to any Participant or Assignee (each a “Transferee”) and any
prospective Transferee any and all financial information in such Lender’s possession concerning the
Borrower that has been delivered to such Lender by the Borrower pursuant to this Agreement or that
has been delivered to such Lender by the Borrower in connection with such Lender’s credit
evaluation prior to entering into this Agreement, subject in all cases to agreement by such
Transferee or prospective Transferee to comply with the provisions of Section 9.15.



     (f) If pursuant to subsection (c) of this Section 2.08, any interest in this Agreement or any
Note is transferred to any Assignee that is organized under the laws of any jurisdiction other than
the United States or any state thereof, the transferor Lender shall cause such Assignee,
concurrently with the effectiveness of such transfer, (i) to represent to the transferor Lender
(for the benefit of the transferor Lender, the Administrative Agents and the Borrower) that under
applicable law and treaties no taxes or only a reduced rate of withholding taxes (excluded from the
definition of Taxes under Section 1.01(d) will be required to be withheld by the Administrative
Agent, the Borrower or the transferor Lender with respect to any payments to be made to such
Assignee in respect of the Loans and (ii) to furnish to each of the transferor Lender, the
Administrative Agent and the Borrower two duly completed copies of the forms required by Section
1.01(c)(i).



     (g) Notwithstanding any provision of this Section 2.08 to the contrary, any Lender may assign
or pledge any of its rights and interests in the Loans to a Federal Reserve Bank without the
consent of the Borrower.



     Section 9.09. Visitation. Subject to restrictions imposed by applicable security clearance
regulations, the Borrower will upon reasonable notice permit representatives of any Lender at such
Lender’s expense to visit any of its major properties.



     Section 9.10. Collateral. Each of the Lenders represents to the Administrative Agent and
each of the other Lenders that it in good faith is not relying upon any “margin stock” (as defined
in Regulation U) as collateral in the extension or maintenance of the credit provided for in this
Agreement.



     Section 9.11. Reference Banks. If any Reference Bank assigns its rights and obligations
hereunder to an unaffiliated institution, the Borrower shall, in consultation with the
Administrative Agent, appoint another Lender to act as a Reference Bank hereunder. If the
Commitment of any Lender which is also a



60









 




Reference Bank is terminated pursuant to the terms of this Agreement, the Borrower may, in
consultation with the Administrative Agent, appoint a replacement Reference Bank.




     Section 9.12. Governing Law; Submission to Jurisdiction. This Agreement and each Note shall
be governed by and construed in accordance with the internal laws of the State of New York. Each
of the Borrower, the Administrative Agent and the Lenders hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of New York and of any
New York State Court sitting in New York for purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the Borrower, the
Administrative Agent and the Lenders irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.



     Section 9.13. Counterparts; Integration. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.



     Section 9.14. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS AND THE LENDERS HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.



     Section 9.15. Confidentiality. Each Lender agrees, with respect to any information delivered
or made available by the Borrower to it that is clearly indicated to be confidential information or
private data, to use all reasonable efforts to protect such confidential information from
unauthorized use or disclosure and to restrict disclosure to only those Persons employed or
retained by such Lender who are or are expected to become engaged in evaluating, approving,
structuring or administering this Agreement and the transactions contemplated hereby. Nothing
herein shall prevent any Lender from disclosing such information (i) to any other Lender, (ii) to
its affiliates, officers, directors, employees, agents, attorneys and accountants who have a need
to know such information in accordance with customary banking practices and who receive such
information having been made aware of and having agreed to the restrictions set forth in this
Section, (iii) upon the order of any court or administrative agency, (iv) upon the request or
demand of any regulatory agency or authority having jurisdiction over such Lender, (v) which has
been publicly disclosed, (vi) to the extent reasonably required in connection with any litigation
to which any Agent or Lender, the Borrower or their respective affiliates may be a party, (vii) to
the



61









 




extent reasonably required in connection with the exercise of any remedy hereunder, (viii) to
any direct, indirect, actual or prospective counterparty (and its advisor) to any swap, derivative
or securitization transaction related to the obligations under this Agreement, provided that such
person agree to be bound by the terms provided in this paragraph, and (ix) with the prior written
consent of the Borrower; provided however, that before any disclosure is permitted under (iii) or
(vi) of this Section 9.15, each Lender shall, if not legally prohibited, notify and consult with
the Borrower, promptly and in a timely manner, concerning the information it proposes to disclose,
to enable the Borrower to take such action as may be appropriate under the circumstances to protect
the confidentiality of the information in question, and provided further that any disclosure under
the foregoing proviso be limited to only that information discussed with the Borrower. The use of
the term “confidential” in this Section 2.15 is not intended to refer to data classified by the
government of the United States under laws and regulations relating to the handling of data, but is
intended to refer to information and other data regarded by the Borrower as private.




     Section 9.16. USA Patriot Act. Each Lender hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Patriot Act.



62









 





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



	 	 	 	 	 	 	 	 	 
	 	 	MARTIN MARIETTA MATERIALS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Anne H. Lloyd 	 	 
	 	 	 	 	   	 	 
	 

	 	 	 	Name:	 	Anne H. Lloyd 	 	 
	 

	 	 	 	Title:	 	SVP, CFO and Treasurer	 	 
	 
	 

	 	 	 	Address:
	 	2710 Wycliff Road	 	 
	 

	 	 	 	 	 	Raleigh, NC 27607	 	 
	 

	 	 	 	Facsimile:
	 	919-510-4700	 	 






	 	 	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A. 

    as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Anthony W. White 	 	 
	 	 	 	 	   	 	 
	 

	 	 	 	Name:	 	Anthony W. White 	 	 
	 

	 	 	 	Title:	 	Vice President 	 	 
	 
	 

	 	 	 	Address:
	 	Attn: Loan Agency Group	 	 
	 

	 	 	 	 	 	1111 Fannin	 	 
	 

	 	 	 	 	 	Houston, Texas 77002	 	 
	 

	 	 	 	Facsimile:
	 	713-750-2452	 	 






 









 






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



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

    as Lender

 	 
	 	By:  	/s/
Anthony W. White 	 
	 	 	Name:  Anthony W. White	 
	 	 	Title:    Vice President	 



 









 






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



	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION 

    as Co-Syndication Agent and Lender

 	 
	 	By:  	/s/
Andrew G. Payne 	 
	 	 	Name:  Andrew G. Payne	 
	 	 	Title:    Director	 



 









 






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



	 	 	 	 	 
	 	BANK OF AMERICA, N.A. 

    as Co-Syndication Agent and Lender

 	 
	 	By:  	/s/
Scott Hitchens 	 
	 	 	Name:  Scott Hitchens	 
	 	 	Title:    Vice
President	 



 









 






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



	 	 	 	 	 
	 	CITIBANK, N.A. 

    as Lender

 	 
	 	By:  	/s/
Marni McManus 	 
	 	 	Name:  Marni McManus	 
	 	 	Title:    Director	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






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



	 	 	 	 	 
	 	BRANCH BANKING AND TRUST COMPANY 

    as Co-Syndication Agent and Lender

 	 
	 	By:  	/s/
Jack M. Frost 	 
	 	 	Name:  Jack M. Frost	 
	 	 	Title:    Senior
Vice President	 



 









 






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



	 	 	 	 	 
	 	WELLS FARGO BANK, N.A.

    as Co-Syndication Agent and Lender

 	 
	 	By:  	/s/
Fareed Ajani 	 
	 	 	Name:  Fareed Ajani	 
	 	 	Title:    Vice President	 



 









 






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



	 	 	 	 	 
	 	NORTHERN TRUST COMPANY

    as Lender

 	 
	 	By:  	/s/
John C. Canty 	 
	 	 	Name:  John C. Canty	 
	 	 	Title:    Senior
Vice President	 



 









 






	 	 	 	 	 



COMMITMENT SCHEDULE




	 	 	 	 	 
	Lender	 	Commitment	 
	JPMorgan Chase Bank, N.A.
	 	$	61,100,000	 
	Wachovia Bank, N.A.
	 	 	56,225,000	 
	Bank of America, N.A.
	 	 	56,225,000	 
	Branch Banking and Trust Company
	 	 	56,225,000	 
	Wells Fargo Bank, N.A.
	 	 	56,225,000	 
	Northern Trust Company
	 	 	10,000,000	 
	Citibank, N.A.
	 	 	29,000,000	 
	 
	 	 	 
	Total
	 	$	325,000,000	 






 









 







PRICING SCHEDULE




     Each of “Facility Fee Rate”, “Euro-Dollar Margin” and “Letter of Credit Fee Rate” means, for
any day, the rate set forth below (in basis points per annum) in the row opposite such term and in
the column corresponding to the Pricing Level that apply for such day:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pricing Level	 	Level I	 	Level II	 	Level III	 	Level IV	 	Level V
	Facility Fee Rate
	 	 	10.0	 	 	 	12.5	 	 	 	15.0	 	 	 	17.5	 	 	 	20.0	 
	 
	Euro-Dollar Margin
	 	 	115.0	 	 	 	137.5	 	 	 	172.5	 	 	 	207.5	 	 	 	255.0	 
	Utilization Fee
	 	 	 	 	 	 	 	 	 	None	 	 	 	 	 	 	 	 
	Letter of Credit Fee Rate
	 	 	115.0	 	 	 	137.5	 	 	 	172.5	 	 	 	207.5	 	 	 	255.0	 






     For purposes of this Schedule, the following terms have the following meanings, subject to the
further provisions of this Schedule:



     “Level I Pricing” applies at any date if, at such date, the Borrower’s long-term debt is rated
A or higher by S&P or A2 or higher by Moody’s.



     “Level II Pricing” applies at any date if, at such date, (i) the Borrower’s long-term debt is
rated A- or higher by S&P or A3 or higher by Moody’s and (ii) Level I Pricing does not exist.



     “Level III Pricing” applies at any date if, at such date, (i) the Borrower’s long-term debt is
rated BBB+ or higher by S&P or Baa1 or higher by Moody’s and (ii) neither Level I Pricing nor Level
II Pricing exists.



     “Level IV Pricing” applies at any date if, at such date, (i) the Borrower’s long-term debt is
rated BBB or higher by S&P or Baa2 or higher by Moody’s and (ii) none of Level I Pricing, Level II
Pricing and Level III Pricing exists.



     “Level V Pricing” applies at any date if, at such date, no other Pricing Level applies.



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



     “Pricing Level” refers to the determination of which of Level I, Level II, Level III, Level IV
or Level V applies at any date.



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



     The credit ratings to be utilized for purposes of this Schedule are those assigned to the
senior unsecured long-term debt securities of the Borrower without third-party credit enhancement,
and any rating assigned to any other debt security of the Borrower shall be disregarded. In the
case of split ratings from



 









 




Moody’s and S&P, the Pricing Level will be determined as if both S&P and Moody’s assigned
ratings one notch higher than the lower of the two. The ratings in effect for any day are those in
effect at the close of business on such day. The ratings in effect for any day are those in effect
at the close of business on such day, and the Euro-Dollar Margin and Facility Fee Rate may change
from time to time during any Interest Period as a result of changes in the Pricing Level during
such Interest Period.




 









 








SCHEDULE 5.11(c)




	 	 	 	 	 
	Investments	 	 	 	 
	 
	American Stone
	 	$	2,274,473	 
	 
	Concrete Supply
	 	 	7,375,250	 
	 
	Granite Canyon Joint Venture
	 	 	3,683,131	 
	 
	Hunt Martin Materials, LLC*
	 	 	38,421,733	 
	 
	Industrial Microwave Systems
	 	 	2,999,925	 
	 
	Mid-South Weaver Joint Venture
	 	 	355,636	 
	 
	MTD Pipeline LLC
	 	 	5,746,434	 
	 
	Valley Stone, LLC
	 	 	275,000	 
	 
	 	 	 
	 
	 	 	 	 
	Total
	 	$	61,131,582	 
	 
	 	 	 








 




			
	*	 	In addition to this equity investment, there are commitments to provide a $7,000,000
revolving credit facility for working capital purposes and a $26,000,000 term loan for capital
projects.




 









 










SCHEDULE 5.11(d)




	 	 	 	 	 
	Related Businesses	 	 	 	 
	 

	Composite technology

	 

	Microwave technology

	 

	Laser technology

	 

	Ecomin

	 

	Microbials

	 

	Ready mixed

	 

	Asphalt

	 

	Laydown

	 

	Trucking/transportation/rail cars and related equipment

	 

	Loading/unloading services







 









 






EXHIBIT A




NOTE




New York, New York

                
        , 200_




     For value received, Martin Marietta Materials, Inc., a North Carolina corporation (the
“Borrower”), promises to pay to the order of
                                         (the “Lender”), for the account
of its Applicable Lending Office, the unpaid principal amount of each Loan made by the Lender to
the Borrower pursuant to the Credit Agreement referred to below on the maturity date provided for
in the Credit Agreement. The Borrower promises to pay interest on the unpaid principal amount of
each such Loan on the dates and at the rate or rates provided for in the Credit Agreement. All
such payments of principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of JPMorgan Chase Bank, N.A., [One Chase
Manhattan Plaza,] New York, New York.



     All Loans made by the Lender, the respective types thereof and all repayments of the principal
thereof shall be recorded by the Lender and, if the Lender so elects in connection with any
transfer or enforcement hereof, appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding may be endorsed by the Lender on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part hereof; provided that the
failure of the Lender to make any such recordation or endorsement shall not affect the obligations
of the Borrower hereunder or under the Credit Agreement.



     This note is one of the Notes referred to in the Second Amended and Restated Credit Agreement
dated as of October ___, 2008 (as the same may be amended from time to time, the “Credit Agreement”)
among Martin Marietta Materials, Inc., the Lenders from time to time parties thereto, JPMorgan
Chase Bank, N.A., as Administrative Agent and Bank of America, N.A., Branch Banking and Trust
Company, Wachovia Bank, National Association and Wells Fargo Bank, N.A., as Co-Syndication Agents.
Terms defined in the Credit Agreement are used herein with the same meanings. Reference is made to
the Credit Agreement for provisions for the prepayment hereof and the acceleration of the maturity
hereof.



	 	 	 	 	 
	 	MARTIN MARIETTA MATERIALS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-1









 






	 	 	 	 	 



LOANS AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Type of	 	Amount of	 	Principal	 	Notation
	Amount	 	Date	 	Loan	 	Loan	 	Repaid	 	Made By
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 





A-2









 






EXHIBIT B — Competitive Bid Quote Request




Form of Competitive Bid Quote Request




[Date]




	 	 	 
	To:

	 	JPMorgan Chase Bank, N.A. (the “Administrative Agent”)
	 
	 	 
	From:

	 	Martin Marietta Materials, Inc.
	 
	 	 
	Re:

	 	Second Amended and Restated Credit Agreement (the “Credit
Agreement”) dated as of October ___, 2008 among Martin Marietta
Materials, Inc., the Lenders from time to time parties thereto, the
Administrative Agent and Bank of America, N.A., Branch Banking and
Trust Company, Wachovia Bank, National Association and Wells Fargo
Bank, N.A., as Co-Syndication Agents






          We hereby give notice pursuant to Section 2.03 of the Credit Agreement that we request
Competitive Bid Quotes for the following proposed Competitive Bid Borrowing(s):




          Date of Borrowing:                                         




	 	 	 	 	 
	Principal Amount*	 	Interest Period**
	$
	 	 	 	 






          Such Competitive Bid Quotes should offer a Competitive Bid [Margin] [Absolute Rate]. [The
applicable base rate is the London Interbank Offered Rate.]




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




	 	 	 	 	 
	 	MARTIN MARIETTA MATERIALS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	*	 	Amount must be $5,000,000 or a larger multiple of
$1,000,000.
	 
	**	 	Not less than one month (LIBOR Auction) or not less
than seven days (Absolute Rate Auction), subject to the provisions of the
definition of Interest Period.




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EXHIBIT C— Invitation for Competitive Bid Quotes




Form of Invitation for Competitive Bid Quotes




	 	 	 
	To:

	 	[Name of Lender]
	 
	 	 
	Re:

	 	Invitation for Competitive Bid Quotes to Martin Marietta Materials,
Inc.






     (the “Borrower”)



          Pursuant to Section 2.03 of the Second Amended and Restated Credit Agreement dated as of
October ___, 2008 among Martin Marietta Materials, Inc., the Lenders from time to time parties
thereto the undersigned, as Administrative Agent and Bank of America, N.A., Branch Banking and
Trust Company, Wachovia Bank, National Association and Wells Fargo Bank, N.A., as Co-Syndication
Agents, we are pleased on behalf of the Borrower to invite you to submit Competitive Bid Quotes to
the Borrower for the following proposed Competitive Bid Borrowing(s):




          Date of Borrowing:                                         




	 	 	 
	Principal Amount	 	Interest Period
	$
	 	 






          Such Competitive Bid Quotes should offer a Competitive Bid [Margin] [Absolute Rate]. [The
applicable base rate is the London Interbank Offered Rate.]




          Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.] (New York City
time) on [date].




	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

    as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 



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EXHIBIT D — Competitive Bid Quote




Form of Competitive Bid Quote




	 	 	 
	To:

	 	JPMorgan Chase Bank, N.A., as Administrative Agent
	 
	 	 
	Re:

	 	Competitive Bid Quote to Martin Marietta Materials, Inc. (the “Borrower”)






          In response to your invitation on behalf of the Borrower dated ___, 200___, we hereby
make the following Competitive Bid Quote on the following terms:





	 	1.	 	Quoting Lender:                                                             
	 
	 	2.	 	Person to contact at Quoting Lender:
	 
	 	 	 	                                                            
	 
	 	3.	 	Date of Borrowing:                                                             *
	 
	 	4.	 	We hereby offer to make Competitive Bid Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:





	 	 	 	 	 	 	 
	 	 	 	 	Competitive Bid	 	Absolute
	Principal Amount**	 	Interest Period***	 	Margin****	 	Rate*****
	$	 	 	 	 	 	 
	$	 	 	 	 	 	 









 




			
	*	 	As specified in the related Invitation.
	 
	**	 	Principal amount bid for each Interest Period may not
exceed principal amount requested. Specify aggregate limitation if the sum of
the individual offers exceeds the amount the Lender is willing to lend. Bids
must be made for $5,000,000 or a larger multiple of $1,000,000.
	 
	***	 	Not less than one month (LIBOR Auction) or not less
than seven days (Absolute Rate Auction), as specified in the related
Invitation. No more than five bids are permitted for each Interest Period.
	 
	****	 	Margin over or under the London Interbank Offered
Rate determined for the applicable Interest Period. Specify percentage (to the
nearest 1/10,000 of 1%) and specify whether “PLUS” or “MINUS”.
	 
	*****	 	Specify rate of interest per annum (to the nearest
1/10,000th of 1%).




D-1









 








	 	 	 
	 

	 	[Provided, that the aggregate principal amount of Competitive Bid Loans for which
the above offers may be accepted shall not exceed $                    .]**







     We understand and agree that the offer(s) set forth above, subject to the satisfaction of the
applicable conditions set forth in the Second Amended and Restated Credit Agreement dated as of
October ___, 2008 among Martin Marietta Materials, Inc., the Lenders from time to time parties
thereto, yourselves, as Administrative Agent and Bank of America, N.A., Branch Banking and Trust
Company, Wachovia Bank, National Association and Wells Fargo Bank, N.A., as Co-Syndication Agents
irrevocably obligates us to make the Competitive Bid Loan(s) for which any offer(s) are accepted,
in whole or in part.





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	[NAME OF BANK]	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	     Authorized Officer	 	 






D-2









 






EXHIBIT G — Assignment and Assumption Agreement




ASSIGNMENT AND ASSUMPTION AGREEMENT




     AGREEMENT
dated as of
                    ,
20___ among [ASSIGNOR] (the “Assignor”), [ASSIGNEE] (the
“Assignee”), MARTIN MARIETTA MATERIALS, INC. (the “Borrower”), JPMORGAN CHASE BANK, N.A., as
Administrative Agent (the “Administrative Agent”) and [ISSUING LENDER(S)], as Issuing Lender(s).



W I T N E S S E T H




     WHEREAS, this Assignment and Assumption Agreement (the “Agreement”) relates to the Second
Amended and Restated Credit Agreement dated as of October ___, 2008 among the Borrower, the Assignor
and the other Lenders party thereto, as Lenders, the Administrative Agent, and Bank of America,
N.A., Branch Banking and Trust Company, Wachovia Bank, National Association and Wells Fargo Bank,
N.A., as Co-Syndication Agents (the “Credit Agreement”);



     WHEREAS, as provided under the Credit Agreement, the Assignor has a Commitment to make Loans
[and participate in Letters of Credit] in an aggregate principal amount at any time outstanding not
to exceed $___,000,000;



     WHEREAS, [Committed] Loans made to the Borrower by the Assignor under the Credit Agreement in
the aggregate principal amount of $                     are outstanding at the date hereof;



     [WHEREAS, Letters of Credit with a total principal amount available for drawing thereunder of
$                     are outstanding at the date hereof]; and



     WHEREAS, the Assignor proposes to assign to the Assignee all of the rights of the Assignor
under the Credit Agreement in respect of a portion of its Commitment thereunder in an amount equal
to $                      (the “Assigned Amount”), together with a corresponding portion of its outstanding
[Committed] Loans [and Letter of Credit Liabilities,] and the Assignee proposes to accept
assignment of such rights and assume the corresponding obligations from the Assignor on such terms;



     NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein,
the parties hereto agree as follows:



     Section 1. Definitions. All capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Credit Agreement.




G-1









 





     Section 2. Assignment. The Assignor hereby assigns and sells to the Assignee all of the
rights of the Assignor under the Credit Agreement to the extent of the Assigned Amount, and the
Assignee hereby accepts such assignment from the Assignor and assumes all of the obligations of the Assignor under the Credit
Agreement to the extent of the Assigned Amount, including the purchase from the Assignor of the
corresponding portion of the principal amount of the [Committed] Loans made by, [and Letter of
Credit Liabilities of,] the Assignor outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee, the Borrower and the Administrative Agent and the
payment of the amounts specified in Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights and be obligated to perform the
obligations of a Lender under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date hereof, be reduced
by a like amount and the Assignor released from its obligations under the Credit Agreement to the
extent such obligations have been assumed by the Assignee. The assignment provided for herein shall
be without recourse to the Assignor.




     Section 3. Payments. As consideration for the assignment and sale contemplated in Section 2
hereof, the Assignee shall pay to the Assignor on the date hereof in immediately available funds
the amount heretofore agreed between them.* It is understood that facility [and Letter
of Credit] fees accrued to the date hereof in respect of the Assigned Amount are for the account of
the Assignor and such fees accruing from and including the date hereof are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it receives any amount under
the Credit Agreement which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other party’s interest therein and shall
promptly pay the same to such other party.



     [Section 4. Consents. This Agreement is conditioned upon the consent of the Borrower, the
Issuing Lenders and the Administrative Agent pursuant to Section 2.08 of the Credit Agreement;
provided, if an Assignee is (i) any Person which controls, is controlled by, or is under common
control with, or is otherwise substantially affiliated with such transferor Lender or (ii) another
Lender, no such consent of the Borrower or the Administrative Agent shall be required. The
execution of this Agreement by the Borrower, the Issuing Lenders and the Administrative Agent, as
applicable, is evidence of this consent.]



     Section 5. Non-Reliance on Assignor. The Assignor makes no representation or warranty in
connection with, and shall have no responsibility





 




			
	*	 	Amount should combine principal together with accrued
interest and breakage compensation, if any, to be paid by the Assignee, net of
any portion of any upfront fee to be paid by the Assignor to the Assignee. It
may be preferable in an appropriate case to specify these amounts generically
or by formula rather than as a fixed sum.




G-2









 









with respect to, the solvency, financial
condition or statements of the Borrower or the validity and enforceability of the obligations of
the Borrower in respect of the Credit Agreement or any Note. The
Assignee acknowledges that it has, independently and without reliance on the Assignor, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and will continue to be responsible for making its own independent appraisal of the
business, affairs and financial condition of the Borrower.




     Section 6. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.



     Section 7. Counterparts. This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.



G-3









 





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



	 	 	 	 	 
	 	[ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	[ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



The undersigned consent to the foregoing assignment:




	 	 	 	 	 
	 	MARTIN MARIETTA MATERIALS, INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	[ISSUING LENDER

 	 
	 	By:  	 	 
	 	 	Title:] 	 
	 	 	 	 



G-4









 






	 	 	 	 	 



EXHIBIT H




FORM OF COMPLIANCE CERTIFICATE



JPMorgan Chase Bank, N.A.

    as Administrative Agent




Attention:                     





     Re:      Compliance Certificate



Ladies and Gentlemen:




     Reference is made to the Second Amended and Restated Credit Agreement dated as of October ___,
2008 among MARTIN MARIETTA MATERIALS, INC., (the “Borrower”), the Lenders from time to time parties
thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as Administrative Agent (the “Administrative
Agent”) and Bank of America, N.A., Branch Banking and Trust Company, Wachovia Bank, National
Association and Wells Fargo Bank, N.A., as Co-Syndication Agents (such agreement, as it may be
amended, amended and restated, supplemented or otherwise modified from time to time, the
“Agreement”); capitalized terms used herein without definition shall have the meanings assigned
those terms in the Agreement.



     This Certificate is furnished to the Administrative Agent for the benefit of the Lenders
pursuant to Section 5.01 of the Agreement.



     The undersigned,        , hereby certifies to the Administrative Agent for the
benefit of the Lenders as follows:



     1 Authority. I am the duly elected, qualified and acting            of the Borrower.



     2. This
certificate is for the period ended
             
       , 200___ (the “Certification Date”).



     3. Financial Statements. The accompanying consolidated statements of earnings and cash flows
of the Borrower and the Consolidated subsidiaries [for the period from the beginning of the fiscal
year to the Certification Date] [for the fiscal year ended on the Certification Date] and the
related consolidated balance sheet of the Borrower and the Consolidated Subsidiaries as at the end
of such [fiscal period] [year], fairly present the consolidated financial condition and results of
operations of the Borrower and the Consolidated Subsidiaries as of the



I-1









 






end of
such [period] [year] and for the
[period] [year] involved [, subject,
however, to year-end audit adjustments].



     4. No Default. To my knowledge, no Default has occurred or is continuing as of the date of
this certificate, except as set forth below:



	 	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 






     5. Maximum Leverage Ratio Calculation. The financial data and computations supporting the
Borrower’s compliance on and as of the Certification Date with the financial covenant contained in
Section 5.09 of the Agreement are set forth below, and such financial data and computations are
true, correct, and complete:



     (A) Consolidated Debt



     (B) Consolidated EBITDA



     Actual leverage (A)/(B)




	 	 	Maximum Allowable Leverage 3.25 to 1.00
	 
	 	 	(under certain circumstances set forth in Section 5.09 of the Credit Agreement, Maximum
Allowable Leverage can be 3.50 to 1.00)





     IN WITNESS WHEREOF, the undersigned has executed this Certificate on the date set forth below.



	 	 	 	 	 
	 	[MARTIN MARIETTA MATERIALS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




     Dated:
                    , 200___



I-2









 





EXHIBIT I




EXTENSION AGREEMENT




JPMorgan Chase Bank, N.A.,

      as Administrative Agent

      under the Credit Agreement

      referred to below

[Address]




Gentlemen:




     The undersigned hereby agrees to extend, effective [Extension Date], the Termination Date
under the Second Amended and Restated Credit Agreement dated as of October ___, 2008 (as amended
from time to time, the “Credit Agreement”) among Martin Marietta Materials, Inc., a North Carolina
corporation (the “Company”), the Lenders party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent (the “Administrative Agent”) and Bank of America, N.A., Branch Banking and
Trust Company, Wachovia Bank, National Association and Wells Fargo Bank, N.A., as Co-Syndication
Agents, for one year to [date to which the Termination Date is extended]. Terms defined in the
Credit Agreement are used herein with the same meaning.



     This Extension Agreement shall be construed in accordance with and governed by the law of the
State of New York.



	 	 	 	 	 
	 	[LENDERS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	Agreed and accepted:	 	 
	 
	 	 	 	 
	MARTIN MARIETTA MATERIALS, INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	JPMORGAN CHASE BANK, N.A., 

    as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 







I-3