Exhibit
10.1


 


Execution Copy


 




 


 





AMENDED AND
RESTATED

CREDIT AGREEMENT

(MULTI-YEAR FACILITY)


 


dated as of April
28, 2003


 


among


 


SCIENCE
APPLICATIONS

INTERNATIONAL CORPORATION,


 


JPMORGAN CHASE
BANK,

as Administrative Agent


 


CITICORP USA,
INC.,

as Syndication Agent


 


MORGAN STANLEY
BANK,

WACHOVIA BANK, N.A.,

THE ROYAL BANK OF SCOTLAND PLC,

as Co-Documentation Agents


 


and


 


The Lenders Party
Hereto


 












 


J.P. MORGAN
SECURITIES INC.

SALOMON SMITH BARNEY INC.

as Joint Bookrunners and Lead Arrangers


 




 





 

















 


TABLE
OF CONTENTS


 


	
  ARTICLE I

  
	
   

  	
   

  
	
  DEFINITIONS AND
  ACCOUNTING TERMS

  
	
   

  	
   

  
	
  Section 1.01.

  	
  Defined Terms

  
	
  Section 1.02.

  	
  Performance; Time

  
	
  Section 1.03.

  	
  Accounting Principles

  
	
  Section 1.04.

  	
  Use of Defined Terms

  
	
  Section 1.05.

  	
  Rounding

  
	
  Section 1.06.

  	
  Exhibits and Schedules

  
	
  Section 1.07.

  	
  References to
  “Subsidiaries”

  
	
  Section 1.08.

  	
  Miscellaneous Terms

  
	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  
	
  COMMITMENTS; INTEREST,
  FEES, PAYMENT PROCEDURES

  
	
   

  	
   

  
	
  Section 2.01.

  	
  The Commitments.

  
	
  Section 2.02.

  	
  Borrowings,
  Conversions and Continuations of Committed Loans.

  
	
  Section 2.03.

  	
  Competitive Loans.

  
	
  Section 2.04.

  	
  Prepayments.

  
	
  Section 2.05.

  	
  Voluntary Reduction of
  Commitments.

  
	
  Section 2.06.

  	
  Principal and
  Interest.

  
	
  Section 2.07.

  	
  Fees.

  
	
  Section 2.08.

  	
  Computation of Fees
  and Interest

  
	
  Section 2.09.

  	
  Manner and Treatment
  of Payments among the Lenders, Borrowers and the Administrative Agent.

  
	
  Section 2.10.

  	
  Funding Sources

  
	
  Section 2.11.

  	
  Letters of Credit.

  
	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  
	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  
	
   

  	
   

  
	
  Section 3.01.

  	
  Taxes

  
	
  Section 3.02.

  	
  Illegality.

  
	
  Section 3.03.

  	
  Increased Costs and
  Reduction of Return

  
	
  Section 3.04.

  	
  Capital Adequacy

  
	
  Section 3.05.

  	
  Breakfunding Costs

  
				



 


i

















 


	
  Section 3.06.

  	
  Inability to Determine
  Rates.

  
	
  Section 3.07.

  	
  Matters Applicable to
  all Requests for Compensation.

  
	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  
	
  CONDITIONS

  
	
   

  	
   

  
	
  Section 4.01.

  	
  Conditions Precedent
  to Effective Date.

  
	
  Section 4.02.

  	
  Any Extensions of
  Credit

  
	
  Section 4.03.

  	
  Foreign Currency
  Loans.

  
	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  
	
  REPRESENTATIONS
  AND WARRANTIES

  
	
   

  	
   

  
	
  Section 5.01.

  	
  Corporate Existence
  and Power

  
	
  Section 5.02.

  	
  Corporate
  Authorization; No Contravention

  
	
  Section 5.03.

  	
  Governmental
  Authorization

  
	
  Section 5.04.

  	
  Binding Effect

  
	
  Section 5.05.

  	
  Litigation

  
	
  Section 5.06.

  	
  No Event of Default.

  
	
  Section 5.07.

  	
  ERISA Compliance.

  
	
  Section 5.08.

  	
  Regulations T, U and X

  
	
  Section 5.09.

  	
  Taxes

  
	
  Section 5.10.

  	
  Financial Condition.

  
	
  Section 5.11.

  	
  Environmental Matters

  
	
  Section 5.12.

  	
  Subsidiaries

  
	
  Section 5.13.

  	
  Insurance

  
	
  Section 5.14.

  	
  Full Disclosure

  
	
  Section 5.15.

  	
  Public Utility Holding
  Company Act; Investment Company Act

  
	
  Section 5.16.

  	
  Title to Properties.

  
	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  
	
  AFFIRMATIVE
  COVENANTS

  
	
   

  	
   

  
	
  Section 6.01.

  	
  Financial Statements

  
	
  Section 6.02.

  	
  Certificates; Other
  Information

  
	
  Section 6.03.

  	
  Notices

  
	
  Section 6.04.

  	
  Preservation of Corporate
  Existence, Etc

  



 


ii

















 


	
  Section 6.05.

  	
  Maintenance of
  Property

  
	
  Section 6.06.

  	
  Insurance

  
	
  Section 6.07.

  	
  Compliance with Laws

  
	
  Section 6.08.

  	
  Inspection of Property
  and Books and Records

  
	
  Section 6.09.

  	
  Environmental Laws

  
	
  Section 6.10.

  	
  Use of Proceeds

  
	
  Section 6.11.

  	
  Regulatory Approvals

  
	
  Section 6.12.

  	
  Transactions with
  Officers, Directors and Affiliates.

  
	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  
	
  NEGATIVE
  COVENANTS

  
	
   

  	
   

  
	
  Section 7.01.

  	
  Liens, Negative Pledges

  
	
  Section 7.02.

  	
  Dispositions

  
	
  Section 7.03.

  	
  Mergers

  
	
  Section 7.04.

  	
  Limitation on Guaranty
  Obligations

  
	
  Section 7.05.

  	
  Synthetic Leases

  
	
  Section 7.06.

  	
  Compliance with ERISA

  
	
  Section 7.07.

  	
  Interest Coverage
  Ratio

  
	
  Section 7.08.

  	
  Ratio of Consolidated
  Funded Debt to EBITDA

  
	
  Section 7.09.

  	
  Accounting Changes

  
	
  Section 7.10.

  	
  Change in Nature of
  Business

  
	
  Section 7.11.

  	
  Hedging Agreements

  
	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  
	
  EVENTS
  OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT

  
	
   

  	
   

  
	
  Section 8.01.

  	
  Events of Default

  
	
  Section 8.02.

  	
  Remedies Upon Event of
  Default

  
	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  
	
  THE
  ADMINISTRATIVE AGENT

  
	
   

  	
   

  
	
  Section 9.01.

  	
  Appointment and
  Authorization

  
	
  Section 9.02.

  	
  Administrative Agent
  and Affiliates

  
	
  Section 9.03.

  	
  Lenders’ Credit
  Decisions

  
	
  Section 9.04.

  	
  Action by
  Administrative Agent.

  



 


iii

















 


	
  Section 9.05.

  	
  Liability of
  Administrative Agent

  
	
  Section 9.06.

  	
  Indemnification

  
	
  Section 9.07.

  	
  Successor
  Administrative Agent

  
	
  Section 9.08.

  	
  No Obligations of
  Credit Parties

  
	
  Section 9.09.

  	
  Documentation Agent;
  Syndication Agent

  
	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  
	
  Section 10.01.

  	
  Amendments; Consents

  
	
  Section 10.02.

  	
  Notices

  
	
  Section 10.03.

  	
  No Waiver;
  Cumulative Remedies

  
	
  Section 10.04.

  	
  Costs and Expenses

  
	
  Section 10.05.

  	
  Binding Effect;
  Assignment.

  
	
  Section 10.06.

  	
  Sharing of Setoffs

  
	
  Section 10.07.

  	
  Counterparts

  
	
  Section 10.08.

  	
  Severability

  
	
  Section 10.09.

  	
  No Third Parties
  Benefited

  
	
  Section 10.10.

  	
  Time

  
	
  Section 10.11.

  	
  GOVERNING LAW AND
  JURISDICTION

  
	
  Section 10.12.

  	
  WAIVER OF JURY TRIAL

  
	
  Section 10.13.

  	
  Entire Agreement

  
	
  Section 10.14.

  	
  Interpretation

  
	
  Section 10.15.

  	
  Nature of Lenders’
  Obligations

  
	
  Section 10.16.

  	
  Indemnity; Damage
  Waiver

  
	
  Section 10.17.

  	
  Nonliability of the
  Lenders

  
	
  Section 10.18.

  	
  Failure to Charge
  Not Subsequent Waiver

  
	
  Section 10.19.

  	
  Headings

  
	
  Section 10.20.

  	
  Foreign Lenders and
  Participants

  
	
  Section 10.21.

  	
  Confidentiality

  



 


iv

















 


	
  EXHIBITS:

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  — Form of Request for
  Extension of Credit

  
	
  Exhibit B

  	
  — Form of Compliance
  Certificate

  
	
  Exhibit C

  	
  — Form of Committed
  Loan Note

  
	
  Exhibit D-1

  	
  — Form of Competitive
  Bid Request

  
	
  Exhibit D-2

  	
  — Form of Competitive
  Bid

  
	
  Exhibit D-3

  	
  — Form of Competitive
  Loan Note

  
	
  Exhibit E

  	
  — Form of Letter of
  Credit Request

  
	
  Exhibit F

  	
  — Form of Notice of
  Letter of Credit Withdrawal

  
	
  Exhibit G

  	
  — Form of Notice of
  Assignment and Acceptance

  
	
  Exhibit H

  	
  — Form of Opinion of
  Counsel

  
	
  Exhibit I

  	
  — Form of Notice of
  Participation

  
	
  Exhibit J

  	
  — Form of Foreign
  Borrower Joinder Agreement

  
	
  Exhibit K

  	
  — Form of Guaranty

  



 


v

















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  Schedule 2.01

  	
  — Commitments and Pro
  Rata Shares

  
	
  Schedule 5.05

  	
  — Litigation

  
	
  Schedule 5.06

  	
  — Defaults

  
	
  Schedule 5.07

  	
  — ERISA Plans

  
	
  Schedule 5.12

  	
  — Subsidiaries

  
	
  Schedule 7.01

  	
  — Existing Liens

  
	
  Schedule 7.02

  	
  — Certain Permitted
  Dispositions

  
	
  Schedule 10.02

  	
  — Lending Offices and
  Notice Addresses

  



 


vi

















 


AMENDED
AND RESTATED

CREDIT AGREEMENT

(MULTI-YEAR FACILITY)


 


This AMENDED AND RESTATED CREDIT AGREEMENT (Multi-Year
Facility) dated as of April 28, 2003 is entered into by and among SCIENCE
APPLICATIONS INTERNATIONAL CORPORATION, a Delaware corporation (the “Company”), each lender whose name is set
forth on the signature pages of this Agreement and each lender which may
hereafter become a party to this Agreement (collectively, the “Lenders” and individually, a “Lender”) and JPMorgan Chase Bank, as
Administrative Agent, Citicorp USA, Inc. as Syndication Agent and Morgan
Stanley Bank, Wachovia Bank, N.A. and The Royal Bank of Scotland plc, as
Co-Documentation Agents.


 


RECITALS


 


A.            The
parties hereto are parties to the Existing Agreement (as defined below).


 


B.            The
Company has requested, and Requisite Lenders have agreed, to enter into this
Amended and Restated Credit Agreement (Multi-Year Facility) to amend and
restate the Existing Agreement in accordance with Section 10.01 thereof.


 


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


 


ARTICLE I


 


DEFINITIONS AND ACCOUNTING TERMS


 


Section 1.01. 
Defined Terms.  As used in this Agreement, the following
terms will have the following meanings, unless the context otherwise requires:


 


“Adjusted Dollar
LIBOR” means, with respect to any LIBOR Loan for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next
1/16 of 1%) equal to (a) Dollar LIBOR for such Interest Period multiplied by
(b) the Statutory Reserve Rate.


 


“Adjusted IBOR”
means, with respect to any Foreign Currency Loan in any Foreign Currency for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) IBOR for such Foreign Currency for such
Interest Period multiplied by (b) the Statutory Reserve Rate.


 


“Absolute Rate”
means a rate of interest for a Competitive Loan determined from an Absolute
Rate Bid that has been accepted by the Company.


 

















 


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


 


“Administrative
Agent” means JPMorgan Chase Bank, in its capacity as administrative
agent for the Lenders hereunder or any successor administrative agent.


 


“Administrative Agent’s
Office” means the Administrative Agent’s address and account as set
forth on Schedule 10.02, or such other address or account for all or any type
of Loans, as the Administrative Agent hereafter may designate by written notice
to the Credit Parties and the Lenders.


 


“Administrative
Agent—Related Persons” means the Administrative Agent (including any
successor agent), together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.


 


“Affiliate”
means, as to any Person, any other Person which, directly, or indirectly
through one or more intermediaries, is in control of, is controlled by, or is
under common control with, such Person. 
A Person shall be deemed to control another Person if the controlling
Person possesses, directly or indirectly through one or more intermediaries,
the power to direct or cause the direction of the management and policies of
the other Person, whether through the ownership of voting securities, the ability
to exercise voting power, by contract or otherwise.  In no event shall the Lender be deemed an “Affiliate” of any
Credit Party or of any Subsidiary of any Credit Party.


 


“Agreement”
means this Credit Agreement, as amended, supplemented, modified, restated or
extended from time to time in accordance with the terms hereof.


 


“Applicable Amount”
means, (a) for any Pricing Period with respect to any Dollar LIBOR Loan or
any Foreign Currency Loan, the per annum amounts set forth below (i) under
“Applicable Margin Facilities Usage < 50%” if the Facilities Usage is
equal to or below 50%; or (ii) under “Applicable Margin Facilities Usage >
50%” if the Facilities Usage exceeds 50%; in each case opposite the Pricing
Level in effect from time to time (it being understood that the Applicable
Amount for any Dollar LIBOR Loan or Foreign Currency Loan may vary during an
Interest Period  if there is a change in
Pricing Level at any time during such Interest Period due to a change in the
Pricing Rating); and (b) with respect to the Facility Fee, the per annum
amount set forth below under “Facility Fee Rate” opposite the Pricing Level in
effect from time to time; in each case in basis points per annum:


 


	
  Pricing Level

  	
   

  	
  Applicable
  Margin

  Facilities Usage < 50%

  	
   

  	
  Applicable
  Margin

  Facilities Usage > 50%

  	
   

  	
  Facility
  Fee

  Rate

  
	
  1

  	
   

  	
  28.5

  	
   

  	
  33.5

  	
   

  	
  9.0

  
	
  2

  	
   

  	
  31.5

  	
   

  	
  39.0

  	
   

  	
  11.0

  
	
  3

  	
   

  	
  49.0

  	
   

  	
  59.0

  	
   

  	
  13.5

  
	
  4

  	
   

  	
  70.0

  	
   

  	
  82.5

  	
   

  	
  17.5

  
	
  5

  	
   

  	
  90.0

  	
   

  	
  107.5

  	
   

  	
  22.5

  



 


2

















 


“Pricing Level”
means, as of any date, the pricing level set forth below opposite the most
creditworthy applicable Pricing Rating as in effect as of the first day of the
Pricing Period in which such date occurs;


 


	
   

  	
   

  	
   

  	
   

  	
  Pricing
  Rating

  
	
  Pricing Level

  	
   

  	
   

  	
   

  	
  S&P

  	
   

  	
  Moody’s

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  GREATER THAN

  	
   

  	
  A-

  	
   

  	
  A3

  
	
  2

  	
   

  	
  EQUAL TO

  	
   

  	
  A-

  	
   

  	
  A3

  
	
  3

  	
   

  	
  EQUAL TO

  	
   

  	
  BBB+

  	
   

  	
  Baa1

  
	
  4

  	
   

  	
  EQUAL TO

  	
   

  	
  BBB

  	
   

  	
  Baa2

  
	
  5

  	
   

  	
  EQUAL TO OR LESS THAN

  	
   

  	
  BBB-

  	
   

  	
  Baa3

  



 


provided,
however, that if there is no
Pricing Rating, the Applicable Amount means (a) for any Pricing Period
with respect to any Dollar LIBOR Loan or any Foreign Currency Loan, the per
annum amounts set forth below (i) under “Applicable Margin Facilities Usage <
50%” if the Facilities Usage is equal to or below 50%, or (ii) under
“Applicable Margin Facilities Usage > 50%” if the Facilities Usage exceeds
50%; in each case opposite the Alternative Pricing Level in effect from time to
time (it being understood that the Applicable Amount for any Dollar LIBOR Loan
or Foreign Currency Loan may vary during an Interest Period if there is a
change in the Alternative Pricing Level at any time during such Interest Period
due to a change in the Debt / EBITDA Ratio), and (b) with respect to the
Facility Fee, the per annum amount set forth below under “Facility Fee Rate”
opposite the Alternative Pricing Level in effect from time to time; provided, that if the Compliance
Certificate is not delivered by the date required by Section 6.02(a) at the
time when the Applicable Amount is determined without a Pricing Rating, then,
subject to other provisions of this Agreement, commencing on the date such
Compliance Certificate was required to be delivered until the date such
Compliance Certificate is delivered, the Applicable Amount set forth opposite
Alternative Pricing Level 4 shall apply; in each case in basis points per
annum:


 


	
  Alternative

  Pricing Level

  	
   

  	
  Applicable
  Margin

  Facilities Usage < 50%

  	
   

  	
  Applicable
  Margin

  Facilities Usage > 50%

  	
   

  	
  Facility
  Fee Rate

  
	
  1

  	
   

  	
  31.5

  	
   

  	
  39.0

  	
   

  	
  11.0

  
	
  2

  	
   

  	
  49.0

  	
   

  	
  59.0

  	
   

  	
  13.5

  
	
  3

  	
   

  	
  70.0

  	
   

  	
  82.5

  	
   

  	
  17.5

  
	
  4

  	
   

  	
  90.0

  	
   

  	
  107.5

  	
   

  	
  22.5

  



 


“Alternative
Pricing Level” means, as of any date, the pricing level set forth
opposite the lowest Debt / EBITDA Ratio determined at the most recent
quarter-end prior to the first day of the Pricing Period in which such date
occurs:


 


3

















 


	
  Alternative

  Pricing Level

  	
   

  	
  Debt /
  EBITDA Ratio

  
	
  1

  	
   

  	
  LESS THAN 1.0

  
	
  2

  	
   

  	
  EQUAL TO OR GREATER
  THAN 1.0 BUT LESS THAN 1.5

  
	
  3

  	
   

  	
  EQUAL TO OR GREATER
  THAN 1.5 BUT LESS THAN 2.0

  
	
  4

  	
   

  	
  EQUAL TO OR GREATER
  THAN 2.0 BUT LESS THAN 2.75

  



 


“Debt / EBITDA
Ratio” means, at any date of determination, the ratio of
consolidated debt of the Company, as of such date, to EBITDA at the most recent
quarter-end for the preceding four fiscal quarters.


 


“Pricing Level
Change Date” means (a) with respect to any change in the
Pricing Rating which results in a change in the Applicable Amount, the date of
the public announcement of the change in such Pricing Rating or (b) with
respect to any change in the Debt / EBITDA Ratio which results in a change in
the Applicable Amount, the date upon which the Company is required by Section
6.02(a) to deliver such Compliance Certificate.


 


“Pricing Period”
means (a) the period commencing on the Closing Date and ending on the
first Pricing Level Change Date to occur thereafter and (b) each
subsequent period commencing on each Pricing Level Change Date and ending the
day prior to the next Pricing Level Change Date.


 


“Pricing Rating”
means, as of any date of determination, the rating, if any, of the Company’s
senior unsecured debt, as determined by either Standard & Poor’s
Corporation (“S&P”) or
Moody’s Investors Service, Inc.  (“Moody’s”); provided, that if the
Company’s senior unsecured debt is rated by both of such rating agencies, then
the more creditworthy of such credit ratings shall apply unless there is a
split rating of two grades or more, in which case the rating one grade above
the lower rating shall apply.


 


“Applicable Taxes”
means any and all present or future taxes (including documentary taxes),
levies, assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto imposed by a Governmental
Authority relating to any Loan Document, including any liabilities imposed on
amounts paid by any Credit Party to indemnify or reimburse any Person for such
amounts, excluding Lender Taxes.


 


 “Attorney Costs” means and includes all
reasonable fees and disbursements of any law firm or other external counsel,
the allocated cost of internal legal services and all disbursements of internal
counsel.


 


“Availability
Period” means the period commencing on the Closing Date and ending,
subject to Article VIII, on the day before the Maturity Date.


 


4

















 


“Base Rate”
means the higher of: (a) the Federal Funds Rate plus 0.50%, or
(b) the rate of interest publicly announced from time to time by JPMorgan
Chase Bank as its reference rate, which shall not necessarily be its lowest or
best rate charged to any of its customers.


 


“Base Rate Loan”
means a Dollar Loan made hereunder from any Lender’s Domestic Lending Office
that bears interest at the Base Rate.


 


“Borrower”
means, in respect of any Dollar Loan, the Company and, in respect of any
Foreign Currency Loan, the Company or the Foreign Borrower borrowing such
Foreign Currency Loan under this Agreement.


 


“Borrowing”
and “Borrow” each mean, a
borrowing hereunder consisting of Loans of the same type made on the same day
and, other than in the case of Base Rate Loans, having the same Interest
Period.


 


“British Pounds
Sterling” means lawful money of the United Kingdom.


 


“Business Day”
means any day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close, provided
that when used in connection with any Borrowing, Continuation, Conversion to or
from, prepayment, assignment, participation or determination of any interest
rate, margin, fee, Interest Period or interest or principal payment date or
similar determination in respect of any (a) Dollar LIBOR Loan or Foreign
Currency Loan in British Pounds Sterling, “Business
Day” shall exclude any such day on which commercial banks are not
open for dealings in deposits in the London interbank market, (b) Foreign
Currency Loan in Euros, “Business Day”
shall also exclude any day on which the TARGET payment system is not open for
the settlement of payment in Euro and (c) Foreign Currency Loan in any other
Foreign Currency, “Business Day”
shall also exclude any day on which banks are not open for dealings in deposits
in such Foreign Currency in the Principal Financial Center for such Foreign
Currency.


 


“Capital Adequacy
Regulation” means any guideline, request or directive of any central
bank or other Governmental Authority, or any other law (provided that if such
guideline, request or directive does not have the force of law, compliance
therewith is customary for banks regulated in a manner similar to such Lender),
rule or regulation, whether or not having the force of law, in each case,
regarding capital adequacy of such Lender or of any corporation controlling
such Lender.


 


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


 


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


 


5

















 


“Canadian Dollars”
means lawful money of Canada.


 


“CERCLA”
has the meaning specified in the definition of “Environmental Laws.”


 


“CLO”
means any entity (whether a corporation, partnership, trust or otherwise) that
is engaged in making, purchasing, holding or otherwise investing in bank loans
and similar extensions of credit in the ordinary course of its business and is
administered or managed by a Lender or an Affiliate of a Lender.


 


“Closing Date”
means July 31, 2002.


 


“Code”
means the Internal Revenue Code of 1986, as amended or replaced and as in
effect from time to time.


 


“Commitment”
means, for each Lender, the amount set forth as such opposite such Lender’s
name on Schedule 2.01 under Commitment, as such amount may be reduced pursuant
to the terms of this Agreement (collectively, the combined “Commitments”).  The respective Pro Rata Shares of the Lenders in the combined Commitments
are set forth in Schedule 2.01.


 


“Committed Loan”
means a Dollar Loan or a Foreign Currency Loan.


 


“Committed Loan
Note” means the promissory note made by any Borrower in favor of a
Lender evidencing such Lender’s Committed Loans, in the case of Dollar Loans,
substantially in the form of Exhibit C and, in the case of Foreign Currency
Loans, in such form as the Administrative Agent may require in light of
commercial banking practices in the jurisdiction of the applicable Foreign
Borrower, if any, either as originally executed or as the same may from time to
time be supplemented, modified, amended, renewed, extended or supplanted
(collectively, the “Committed Loan Notes”).


 


“Company”
has the meaning specified in the preamble.


 


“Competitive Bid”
means (a) a written bid delivered to the Administrative Agent to provide
Competitive Loans, substantially in the form of Exhibit D-2, duly completed and
signed by a Lender, or (b) a telephonic bid made by a Lender to the
Administrative Agent to provide Competitive Loans including the substance of
Exhibit D-2, promptly confirmed by a written Competitive Bid.


 


“Competitive Bid
Maximum” means the maximum amount(s) a Lender is willing to bid
under a Competitive Bid for all Competitive Loans included therein and/or
individual Competitive Loans included therein.


 


“Competitive Bid
Request” means (a) a written request delivered to the Administrative
Agent requesting Competitive Bids, substantially in the form of Exhibit D-l,
duly completed and signed by a Responsible Officer, or (b) a telephonic request


 


6

















 


made by a Responsible Officer to the Administrative Agent requesting
Competitive Bids including the substance of Exhibit D-1, promptly confirmed by
a written Competitive Bid Request.


 


“Competitive Loan”
means a Loan made by any Lender to the Company under the combined Commitments
not determined by that Lender’s Pro Rata Share pursuant to Section 2.03,
bearing interest at an Absolute Rate or on the basis of a margin above or below
Adjusted Dollar LIBOR.  All Competitive
Loans will be made in Dollars.


 


“Competitive Loan
Minimum Amount” means, with respect to each of the following actions
with respect to each type of Competitive Loan, the following amounts set forth
opposite such action under such type of Competitive Loan (a reference to “Competitive Loan Minimum Amount” shall
also be deemed a reference to the multiples in excess thereof set forth on the
last line below):


 




	
  Type of Action

  	
   

  	
  Absolute
  Rate

  Minimum

  	
   

  	
  LIBOR

  Minimum

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Competitive
  Bid Requests

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  Competitive
  Bids

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  Competitive
  Loans

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  Multiples
  in excess of above amounts

  	
   

  	
  $

  	
  500,000

  	
   

  	
  $

  	
  1,000,000

  	
   

  






 


“Competitive Loan
Note” means the promissory note made by the Company in favor of a
Lender evidencing the Competitive Loans made by that Lender, substantially in
the form of Exhibit D-3, either as originally executed or as the same may from
time to time be supplemented, modified, amended, renewed, extended or
supplanted (collectively, the “Competitive
Loan Notes”).


 


“Competitive Loan
Requisite Time” means, with respect to any of the actions listed
below, the time set forth opposite such action on or prior to the date set
forth below (all times are New York time):


 


	
   

  	
   

  	
   

  	
   

  	
  Date

  
	
  Action

  	
   

  	
  Time

  	
   

  	
  Absolute
  Rate Loan

  	
   

  	
  Dollar
  LIBOR Loan

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Competitive
  Bid Request

  	
   

  	
  11:00 a.m.

  	
   

  	
  1 Business Day prior to
  Credit Date

  	
   

  	
  4 Business Days prior
  to Credit Date

  
	
  Competitive
  Bid by Lenders other than Administrative Agent

  	
   

  	
  11:00 a.m.

  	
   

  	
  Credit Date

  	
   

  	
  3 Business Days prior
  to Credit Date

  
	
  Competitive
  Bid by Administrative Agent as Lender under this Agreement

  	
   

  	
  10:45 a.m.

  	
   

  	
  Credit Date

  	
   

  	
  3 Business Days prior
  to Credit Date

  
	
  Company’s
  Acceptance

  	
   

  	
  11:30 a.m.

  	
   

  	
  Credit Date

  	
   

  	
  3 Business Days prior
  to Credit Date

  



 


7

















 


“Compliance
Certificate” means a certificate substantially in the form of
Exhibit B, properly completed and signed by a Responsible Officer.


 


“Consolidated
Funded Debt” means, for any period, for the Company and its
subsidiaries on a consolidated basis in accordance with GAAP, an amount equal
to the sum of, without duplication, (a) all indebtedness of the Company and its
consolidated subsidiaries for borrowed money plus (b) all Indebtedness of the
Company and its consolidated subsidiaries incurred in connection with the
acquisition of assets or property plus (c) the principal portion of all Capital
Lease Obligations of the Company and its consolidated subsidiaries plus (d) all
obligations of the Company and its consolidated subsidiaries under Permitted
Accounts Receivable Financings plus (e) indebtedness of the Company and its
consolidated subsidiaries attributable to Synthetic Leases related to tangible
Property plus (f) Deferred Purchase Price Obligations of the Company and its
consolidated subsidiaries plus (g) all Guaranty Obligations of the Company and
its consolidated subsidiaries with respect to indebtedness for borrowed money
of any other Person; in each of cases (a) through (g) as of the last day of
such period.


 


“Continuation”
and “Continue” each mean, with
respect to any Loan other than a Base Rate Loan, the continuation of such Loan
as the same type of Loan in the same principal amount, but with a new Interest
Period and an interest rate determined as of the first day of such new Interest
Period.  Continuations must occur on the
last day of the Interest Period for such Loan.


 


“Contractual
Obligations” means, as to any Person, any provision of any security
issued by such Person or of any agreement, undertaking, contract, indenture,
mortgage, deed of trust or other instrument, document or agreement to which
such Person is a party or by which it or any of its Property is bound.


 


“Controlled Group”
means the Company and all Persons (whether or not incorporated) under common
control or treated as a single employer with the Company pursuant to Section
414(b) or (c) of the Code.


 


“Conversion”
and “Convert” each mean, with
respect to any Committed Loan, the conversion of one type of Loan into another
type of Loan.  With respect to Loans
other than Base Rate Loans, Conversions other than Conversion upon a Default or
Event of Default must occur on the last day of the Interest Period for such
Loan.


 


“Credit Date”
means (i) with respect to any Loan, the Business Day set forth in the relevant
Request for Extension of Credit or Competitive Bid Request, as applicable, as
the date upon which the applicable Borrower desires to borrow such Loan, and
(ii) with respect to any Letter of Credit, the Business day set forth in the
relevant LC Request as the date upon which the Company desires the Issuing Bank
to issue such Letter of Credit.


 


“Credit
Parties” means the Company and the Foreign Borrowers,
collectively.


 


8

















 


“Default”
means any event or circumstance which, with the giving of notice, the lapse of
time, or both, would (if not cured or otherwise remedied during such time)
constitute an Event of Default.


 


“Default Rate”
means an interest rate equal to the underlying interest rate applicable to such
type of Loan plus the Applicable Amount, if any, otherwise applicable plus 2%,
to the fullest extent permitted by any Requirement of Law.


 


“Deferred Purchase
Price Obligations” means, as applied to any Person, all monetary
obligations to make scheduled payments in excess of $10,000,000 with respect to
the deferred purchase price of Property or services (other than trade accounts
payable in the Ordinary Course of Business).


 


“Disposition”
means the voluntary sale, transfer, or other disposition (but not including a
pledge or hypothecation except as set forth below in this definition) of any
asset of the Company or any of its Subsidiaries, including without limitation
any sale, assignment, pledge, hypothecation, transfer or other disposal with or
without recourse of any notes or accounts receivable or any rights and claims
associated therewith, other than a Permitted Disposition.


 


“Dollar Letter of
Credit” means a Dollar-denominated letter of credit of an Issuing
Bank issued pursuant to this Agreement or issued pursuant to any other
arrangement and incorporated as a “Letter of Credit” under this Agreement
pursuant to Section 2.11(b).


 


“Dollar LIBOR”
has the meaning specified in the definition of “IBOR.”


 


“Dollar LIBOR Loan” means a Loan made
hereunder to the Company that bears interest at a rate determined by reference
to Adjusted Dollar LIBOR.


 


“Dollar Loan”
means a revolving Loan made to the Company by any Lender in accordance with its
Pro Rata Share under that Lender’s Commitment pursuant to Section 2.01(a), and
includes Dollar LIBOR Loans and Base Rate Loans.  All Dollar Loans will be made in Dollars.


 


“Dollars”
and the sign “$” each mean lawful
money of the United States of America.


 


“Domestic Lending
Office” means, with respect to each Lender, its office, branch or
affiliate specified as its domestic lending office by notice to the
Administrative Agent.


 


“EBITDA”
means, for any period, for any Person, an amount equal to Net Income of such
Person and its consolidated subsidiaries for that period, plus (without
duplication and to the extent incorporated in the calculation of Net Income)
(a) Interest Expense of such Person and its consolidated subsidiaries for
that period, plus (b) the aggregate


 


9

















 


amount of consolidated federal and state taxes on or measured by income
of such Person and its consolidated subsidiaries for that period (whether or
not payable during that period), plus (c) consolidated depreciation,
amortization and all other non-cash items (including non-cash compensation and
impairment charges) of such Person and its consolidated subsidiaries for that
period, minus (d) any gains attributable to the sale of assets plus (e)
any losses attributable to the sale of assets, and minus (f) any items of
income or loss in respect of (1) equity in the income or loss of unconsolidated
affiliates or (2) minority interests in the income or loss of consolidated
subsidiaries, in each case as determined in accordance with GAAP; it being
understood that any items of loss or expense would be added to, and any items
of gain or income would be deducted from Net Income for the purpose of
determining EBITDA under this paragraph.


 


“Effective Date”
means the date on which all conditions precedent set forth in Section 4.01 are
satisfied or waived by the Lenders and the Administrative Agent.


 


“Eligible Assignee”
means (i) a financial institution organized under the laws of the United
States, or any state thereof, and having total assets of at least
$1,000,000,000; (ii) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation
and Development (the “OECD”), or
a political subdivision of any such country, and having total assets of at
least $1,000,000,000, provided that such bank is acting through
a branch or agency located in the United States; (iii) a Person that is
primarily engaged in the business of commercial banking and that is (a) a
Subsidiary of a Lender, (b) a Subsidiary of a Person of which a Lender is
a Subsidiary, or (c) a Person of which a Lender is a Subsidiary; (iv) a
CLO, or (v) another Lender.


 


“Environmental
Claims” means all claims, however asserted, by any Governmental
Authority or other Person alleging liability or responsibility for violation of
any Environmental Law or for release or injury to the environment or threat to
public health, personal injury (including sickness, disease or death), Property
damage, natural resources damage, or otherwise alleging liability or
responsibility for damages (punitive or otherwise), cleanup, removal, remedial
or response costs, restitution, civil or criminal penalties, injunctive relief,
or other type of relief, resulting from or based upon (a) the presence,
placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental placement, spills, leaks, discharges, emissions or releases) of
any Hazardous Material at, in, or from Property, whether or not owned by the
Company, or (b) any other circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.


 


“Environmental Laws”
means all federal, state or local laws, statutes, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices, binding
agreements, licenses, authorizations and permits issued, promulgated or entered
into by any Governmental Authority, in each case relating to environmental,
health, safety and


 


10

















 


land use matters (excluding matters relating to zoning and building
permits); including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (“CERCLA”), the Clean Air Act, the Federal Water Pollution
Control Act of 1972, the Solid Waste Disposal Act, the Federal Resource
Conservation and Recovery Act, the Toxic Substances Control Act, the Emergency
Planning and Community Right-to-Know Act, the California Hazardous Waste
Control Law, the California Solid Waste Management, Resource, Recovery and
Recycling Act, the California Water Code and the California Health and Safety
Code.


 


“Equivalent Amount”
means at any time of determination, with respect to any amount in any currency
denominated in a Foreign Currency, the net amount of Dollars into which such
amount of Foreign Currency would be converted at such time at applicable
exchange rates, as determined by the Administrative Agent, which determination
will be final in the absence of manifest error.


 


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


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control
with the Company or any Subsidiary of the Company within the meaning of Section
414(b), 414(c) or 414(m) of the Code.


 


“ERISA Event”
means (a) a Reportable Event with respect to a Qualified Plan or a
Multiemployer Plan which is a Materially Underfunded Plan; (b) a
withdrawal by any member of the Controlled Group from a Qualified Plan which is
a Materially Underfunded Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA); (c) a complete or partial withdrawal by any member of the
Controlled Group from a Multiemployer Plan which is a Materially Underfunded
Plan; (d) the filing of a notice of intent to terminate, the treatment of
a plan amendment as a termination under Section 4041 or 4041A of ERISA or the
commencement of proceedings by the PBGC to terminate a Qualified Plan or
Multiemployer Plan which is a Materially Underfunded Plan subject to Title IV
of ERISA; (e) a failure to make required contributions to a Qualified Plan
or Multiemployer Plan which is a Materially Underfunded Plan; (f) an event
or condition which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Qualified Plan or Multiemployer Plan which is a Materially
Underfunded Plan; (g) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon any member of the Controlled Group with respect to a Materially
Underfunded Plan; (h) an application for a funding waiver or an extension
of any amortization period pursuant to Section 412 of the Code with respect to
any Qualified Plan which is a Materially Underfunded Plan; (i) any member
of the Controlled Group engages in or otherwise becomes liable for a non-exempt
prohibited transaction which would have a Material Adverse Effect; or
(j) a violation of the applicable


 


11

















 


requirements of Section 404 or 405 of ERISA or the exclusive benefit
rule under Section 401(a) of the Code by any fiduciary with respect to any
Qualified Plan for which the Company or any of its Subsidiaries may be directly
or indirectly liable which would have a Material Adverse Effect.


 


“Euro”
means lawful money of Austria, Belgium, Finland, France, Germany, Greece,
Ireland, Italy, Luxembourg, the Netherlands, Portugal and Spain, and such other
countries as may hereafter join the Euro Zone.


 


“Eurocurrency
Lending Office” means, with respect to each Lender, its office,
branch or affiliate specified as its Eurocurrency lending office by notice to
the Administrative Agent.


 


“Euromarket Funded”
means, with respect to a Loan, that such Loan shall bear interest by reference to
Dollar LIBOR or London IBOR (both as defined in the definition of “IBOR”) plus
the Applicable Amount, and that such Loan shall be made from the relevant
Eurocurrency Lending Office of the Lender making such Loan.


 


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


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.


 


“Existing Agreement”
means that certain Credit Agreement dated as of July 31, 2002 among the
Company, the Lenders, JPMorgan Chase Bank, as Administrative Agent, Citicorp
USA, Inc. as Syndication Agent and Morgan Stanley Bank, Wachovia Bank, N.A. and
The Royal Bank of Scotland plc as Co-Documentation Agents.


 


“Extension of
Credit” means the Borrowing, Conversion or Continuation of any Loans
(collectively, the “Extensions of Credit”).


 


“Facility Fee”
means the fee payable by the Company to the Administrative Agent pursuant to
Section 2.07(a).


 


“Facilities Usage”
means, as of any date, the amount expressed as a percentage calculated as (A)
the sum of (i) all Loans outstanding under the 364-Day Agreement and (ii) all
Loans outstanding and the amount of the LC Exposure under this Agreement
divided by (B) the sum of (i) the Lenders’ Commitments under this Agreement and
(ii) the Lenders’ Commitments under the 364-Day Agreement; provided that for the purposes of
subclauses (A)(i) and (B)(ii) of this paragraph only, the terms “Lenders”,
“Loans”, and “Commitments” shall have the meanings as defined under the 364-Day
Agreement.


 


“Federal Funds Rate”
means the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers,
as published for such day of determination (or if such day of


 


12

















 


determination is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations
for such day on such transaction received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.


 


“Federal Reserve
Board” means the U.S. Board of Governors of the Federal Reserve
System, or any successor thereto.


 


“Fiscal Quarter”
means, as applicable, the fiscal quarter of the Company and its Subsidiaries as
reflected in the Company’s consolidated financial statements.


 


“Fiscal Year”
means, as applicable, the fiscal year of the Company and its Subsidiaries as
reflected in the Company’s consolidated financial statements.


 


“Foreign Borrower”
means any Person that becomes a Foreign Borrower hereunder in accordance with
Section 2.01(d), but only to the extent Foreign Borrower Obligations of such
Person are outstanding.


 


“Foreign Borrower
Joinder Agreement” means an agreement in the form attached as
Exhibit J.


 


“Foreign Borrower
Obligations” means all Obligations of Foreign Borrowers.


 


“Foreign Currency”
means British Pounds Sterling, Canadian Dollars, Japanese Yen and Euro or such
other currency as agreed to by the Administrative Agent and all Lenders.  Each currency must be one (a) that is
readily available to the Lenders and freely transferable and convertible into
Dollars, and (b) in which deposits are generally available to the Lenders in
the London interbank market.


 


“Foreign Currency
Letter of Credit” means a letter of credit of an Issuing Bank
denominated in a Foreign Currency and issued pursuant to this Agreement or
issued pursuant to any other arrangement and incorporated as a “Letter of
Credit” under this Agreement pursuant to Section 2.11(b).


 


“Foreign Currency
Limit” means, at any time, the lesser of (a) $200,000,000 and (b)
100% of the combined Commitments in effect at such time.


 


“Foreign Currency
Loan” means a revolving Loan made hereunder to the Company or a
Foreign Borrower in a Foreign Currency and bearing interest at Adjusted IBOR
for such Foreign Currency.


 


“GAAP”
means generally accepted accounting principles in the United States of America
set forth from time to time in the opinions and pronouncements of the U.S.
Accounting Principles Board and the American Institute of Certified Public
Accountants


 


13

















 


and statements and pronouncements of the U.S. Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the accounting profession), or in such other statements by
such other entity as may be in general use by significant segments of the U.S. accounting
profession, which are applicable to the circumstances as of the date of
determination.


 


“Governmental
Authority” means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof,
(b) any governmental agency, central bank or comparable authority,
authority, board, bureau, commission, department or instrumentality, or
(c) any court or administrative tribunal.


 


“Guaranty”
means the guaranty, dated as of July 31, 2002 and executed by the Company in
the form attached as Exhibit K.


 


“Guaranty
Obligation” means, as applied to any Person, any direct or indirect
liability of that Person with respect to any Indebtedness, lease, letter of
credit, surety bond, bankers’ acceptance or other obligation (the “primary
obligations”) of another Person (the “primary obligor”), including any
obligation of that Person, whether or not contingent, (a) to purchase,
repurchase or otherwise acquire such primary obligations or any Property
constituting direct or indirect security therefor, or (b) to advance or
provide funds (i) for the payment or discharge of any such primary
obligation, or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any balance
sheet item, level of income or financial condition of the primary obligor, or
(c) to purchase Property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation, or
(d) otherwise to assure or hold harmless the holder of any such primary
obligation against loss in respect thereof. 
The amount of any Guaranty Obligation shall be deemed equal to the
stated or determinable amount of the primary obligation in respect of which
such Guaranty Obligation is made or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof.


 


“Hazardous
Materials” means all those substances which are regulated by, or
which may form the basis of liability under, any Environmental Law, including
all substances identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.


 


“Hedging Agreement”
means any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or any
combination of these transactions; provided that no phantom stock or similar
plan providing for payments only on account


 


14

















 


of services provided by current or former directors, officers,
employees or consultants of the Company or its Subsidiaries shall be a Hedging
Agreement; provided further that no contingent purchase price, earn-out,
royalty or similar payment obligation relating to any acquisition or
divestiture of a Person by the Company or its Subsidiaries or contract for
intellectual property or other goods and services supplied or received by the
Company or its Subsidiaries shall be a Hedging Agreement.


 


“IBOR”
shall mean, with respect to any Interest Period for a Dollar LIBOR Loan or
Foreign Currency Loan, the rate per annum determined by the Administrative
Agent as follows:


 


(a)           in
the case of a Dollar LIBOR Loan, the rate (“Dollar
LIBOR”) appearing on Page 3750 of the Dow Jones Market Service (or on any successor
or substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
deposits in the London interbank market) at approximately 11:00 a.m., London
time, two 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 “IBOR”
and “Dollar LIBOR” with respect
to such Dollar LIBOR Loan for such Interest Period shall be the rate (rounded
upwards, if necessary, to the next 1/16 of 1%) at which Dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period; or


 


(b)           in
the case of a Euromarket Funded Foreign Currency Loan (other than Loans in
British Pounds Sterling), the rate (“London
IBOR”) appearing on Page 3750 of the Dow Jones Market Service (or on any successor
or substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
deposits in the London interbank market) at approximately 11:00 A.M.,
London time, two
Business Days prior to the commencement of such Interest Period, as the rate
for deposits in such Foreign Currency with a maturity comparable to such
Interest Period.  In the event that such rate
is not available at such time for any reason, “IBOR” and “London IBOR” with respect to such Euromarket Funded Foreign
Currency Loan for such Interest Period shall be the rate at which deposits in
such Foreign Currency in an amount substantially equal to the principal amount
of such Foreign Currency Loan and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative Agent
in immediately


 


15

















 


available funds in the London interbank market at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest
Period; or


 


(c)           in
the case of a Euromarket Funded Foreign Currency Loan in British Pounds
Sterling or a Locally Funded Foreign Currency Loan, the rate (“Local Market IBOR”) at which deposits in
such Foreign Currency in an amount substantially equal to the principal amount
of such Foreign Currency Loan and for a maturity comparable to such Interest
Period are offered by the principal office of the Administrative Agent in the
interbank deposit market in the Principal Financial Center of such Foreign
Currency in immediately available funds at approximately 11:00 a.m., local
time, two Business Days prior to the commencement of such Interest Period.


 


“IBOR Loans”
means Dollar LIBOR Loans and Foreign Currency Loans.


 


“Indebtedness”
of any Person means, without duplication, (a) all indebtedness for borrowed
money; (b) all obligations issued, undertaken or assumed as the deferred
purchase price of Property or services (other than trade payables entered into
in the ordinary course of business pursuant to ordinary terms); (c) all
matured or drawn and unreimbursed reimbursement obligations with respect to
surety bonds, letters of credit, bankers’ acceptances and similar instruments
(in each case, to the extent non-contingent); (d) all obligations
evidenced by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of
Property, assets or businesses; (e) all indebtedness created or arising
under any conditional sale or other title retention agreement, in either case
with respect to Property acquired by the Person (even though the rights and
remedies of the seller or bank under such agreement in the event of default are
limited to repossession or sale of such Property); (f) all Capital Lease
Obligations; (g) all indebtedness referred to in clauses (a) through
(f) above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or in
Property (including accounts and contracts rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness; and (h) all Guaranty Obligations in respect of indebtedness
or obligations of others of the kinds referred to in clauses (a) through (f)
above.  Indebtedness shall not include life
insurance policy loans to officers, directors and employees of such Person, to
the extent such loans are secured by the surrender value of such life insurance
policy.


 


“Information
Memorandum” means the Confidential Information Memorandum dated
June 19, 2002 relating to the Company and the Transactions.


 


“Insolvency
Proceeding” means (a) any case, action or proceeding before any
court or other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors or other, similar arrangement
in respect of its creditors generally or any substantial portion


 


16

















 


of its creditors; in the case of clause (a) and (b) undertaken under
U.S. Federal, State or foreign law, including the Bankruptcy Code.


 


“Interest Coverage
Ratio” means, for the four consecutive financial quarters immediately
preceding the determination, the ratio of (i) EBITDA to (ii) Interest Expense.


 


“Interest Expense”
means, for any period, for any Person, the sum, without duplication, of total
consolidated interest expense (including that portion attributable to
Capitalized Leases in conformity with GAAP) of such Person and its consolidated
subsidiaries.


 


“Interest Payment
Date” means, (a) with respect to any Committed Loan that is a
IBOR Loan, (i) the last day of each Interest Period applicable to, or the
maturity of, such Loan; provided, however, that if any
Interest Period for a IBOR Loan exceeds three months, interest shall also be
paid on the date which falls, as applicable, three, six, or nine months after
the beginning of such Interest Period; (ii) any date that such Loan is
prepaid in whole or in part, and (iii) the Maturity Date, and
(b) with respect to any Base Rate Loan, the last Business Day of each
calendar quarter and the Maturity Date.


 


“Interest Period”
means, as to any Committed Loan other than a Base Rate Loan, the period
commencing on the date specified by the applicable Credit Party in its Request
for Extension of Credit and ending one, two, three or six months (or, in the
case of a Dollar LIBOR Loan, if consented to by all Lenders, nine or 12 months)
thereafter, provided
that:


 


(a)           if
any Interest Period would otherwise end on a day which is not a Business Day,
that Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on the
immediately preceding Business Day;


 


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


 


(c)           No
Interest Period for any Loan shall extend beyond the Maturity Date.


 


“Issuing Bank” means JPMorgan Chase Bank,
in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.11(l).  The
Issuing Bank may arrange for one or more Letters of Credit to be issued by its
Affiliates, other Lenders or their Affiliates, with the prior approval of the
Administrative Agent and such Lenders or Affiliates, in which case the term “Issuing


 


17

















 


Bank”
shall include any such Lender or Affiliate with respect to Letters of Credit
issued by it.


 


“Joinder Effective
Date” has the meaning specified in Section 4.03.


 


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


 


“LC Exposure” means, at any time, the sum
of (a) the aggregate undrawn amount of all outstanding Dollar Letters of
Credit at such time, (b) the Equivalent Amount of the aggregate undrawn amount
of all outstanding Foreign Currency Letters of Credit at such time,
(c) the aggregate amount of all LC Disbursements with respect to Dollar
Letters of Credit that have not yet been reimbursed by or on behalf of the Company at such time,
and (d) the aggregate Equivalent Amount of all LC Disbursement with respect to
Foreign Currency Letters of Credit  that
have not yet been
reimbursed by or on behalf of the Company at such time.  The LC Exposure of any Lender at any time
shall be its Pro Rata Share of the total LC Exposure at such time.


 


“LC Overage” means the amount, if any, by
which the LC Exposure exceeds $150,000,000.


 


“LC Request”
means a request by the Company for a Letter of Credit pursuant to Section
2.11(b) in the form attached as Exhibit E hereto.


 


“LC Requisite Time”
means 12:00
noon, New York City time, on the date that such LC Disbursement is made, if the
Company shall have received notice of such LC Disbursement prior to 10:00 a.m.,
New York City time, on such date, or, if such notice has not been received by
the Company prior to such time on such date, then not later than 12:00 noon,
New York City time, on (i) the Business Day that the Company receives such
notice, if such notice is received prior to 10:00 a.m., New York City time, on
the day of receipt, or (ii) the Business Day immediately following the day that
the Company receives such notice, if such notice is not received prior to such
time on the day of receipt.


 


“Letter of Credit”
means a Dollar Letter of Credit or a Foreign Currency Letter of Credit.


 


“Lender”
means each lender from time to time party hereto.


 


“Lender Taxes”
means, in the case of each Lender, the Administrative Agent, each Eligible
Assignee, and any Affiliate or Lending Office thereof: (a) taxes imposed
on or measured in whole or in part by its overall net income, gross income or
gross receipts or capital and franchise taxes imposed on it, by (i) any
jurisdiction (or political subdivision thereof) in which it is organized or
maintains its principal office or Lending Office or (ii) any jurisdiction
(or political subdivision thereof) in which it is “doing


 


18

















 


business” (unless it would not be doing business in such jurisdiction
(or political subdivision thereof) absent the Transactions), (b) any
withholding taxes or other taxes based on gross income imposed by the United
States of America (other than withholding taxes and taxes based on gross income
resulting from or attributable to any change in any law, rule or regulation or
any change in the interpretation or administration of any law, rule or
regulation by any Governmental Authority in each case after the date hereof) or
(c) any withholding taxes or other taxes based on gross income imposed by
the United States of America for any period with respect to which it has failed
to provide the Company with the appropriate form or forms required by Section
10.20, to the extent such forms are then required by any Requirement of Law.


 


“Lending Office”
means, as to any Lender, either its Domestic Lending Office, Eurocurrency
Lending Office or its Local Currency Lending Office, as the context may
require.


 


“LIBOR Margin Bid”
has the meaning set forth in Section 2.03(b).


 


“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, lien
(statutory or other) or other security interest or encumbrance (including those
created by, arising under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a Capital Lease Obligation
or the filing of any financing statement naming the owner of the asset to which
such lien relates as debtor, under the UCC or any comparable law), but not
including the interest of a lessor under an Operating Lease.


 


“Loan”
means any advance made or to be made by any Lender to the Company as provided
in Article II, and includes Committed Loans and Competitive Loans.


 


“Loan Documents”
means, collectively, this Agreement, any Foreign Borrower Joinder Agreements,
the Guaranty, the Notes, any Letters of Credit and the related applications and
agreements, any Request for Extension of Credit, any Compliance Certificate and
any other agreements of any type or nature hereafter executed and delivered by
the Company or any of its Subsidiaries or Affiliates to the Administrative
Agent or to any Lender in any way relating to or in furtherance of this
Agreement, in each case either as originally executed or as the same may from
time to time be supplemented, modified, amended, restated, extended or
supplanted.


 


“Local Currency
Lending Office” means, with respect to each Lender and each Foreign
Currency, the office, branch or affiliate of such Lender located in the country
of the Principal Financial Center for such Foreign Currency as it may hereafter
designate as its Local Currency Lending Office for such Foreign Currency by
notice to the Administrative Agent.


 


“Local Market IBOR”
has the meaning specified in the definition of “IBOR.”


 


19

















 


“Locally Funded”
means, with respect to a Foreign Currency Loan, that such Loan shall bear
interest by reference to Local Market IBOR (as defined in the definition of
“IBOR”) for the relevant Foreign Currency plus the Applicable Amount, and that
such Loan shall be made from the relevant Local Currency Lending Office of the
Lender making such Loan.


 


“London IBOR”
has the meaning specified in the definition of “IBOR.”


 


“Margin Stock”
means “margin stock” as such term is defined in Regulations T, U and X of the
Federal Reserve Board.


 


“Material Adverse
Effect” means a material adverse effect on (a) the business, assets,
operations and condition, financial or otherwise, of the Company and the
Subsidiaries taken as a whole, (b) the ability of any Credit Party to perform
its material obligations under this Agreement, or (c) the legality, validity,
binding effect or enforceability of any Loan Document.


 


“Materially
Underfunded Plan” means, at any time, a Plan or Plans having
aggregate Unfunded Pension Liabilities in excess of $10,000,000.


 


“Maturity Date”
means July 31, 2007.


 


“Minimum Amount”
means, with respect to each action described below, the following amount set
forth opposite such action (or, in respect of an action relating to a Foreign
Currency Loan, an amount of the applicable Foreign Currency (rounded up to the
nearest 1,000 British Pounds Sterling, Euros or 100,000 Japanese Yen, as the
case may be) the Equivalent Amount of which is equal to the Dollar amount set
forth below):


 


	
  Type of Action

  	
   

  	
  Minimum

  Amount

  	
   

  	
  Minimum
  Multiples

  in excess of

  Minimum Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Borrowing
  of, prepayment of or Conversion into, Base Rate Loans

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  $

  	
  500,000

  	
   

  
	
  Borrowing
  of, prepayment or Continuation of, or Conversion into, Dollar LIBOR Loans

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  $

  	
  1,000,000

  	
   

  
	
  Voluntary
  Reduction of Commitments

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  $

  	
  1,000,000

  	
   

  
	
  Borrowing
  of, prepayment or Continuation of Foreign Currency Loans

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  $

  	
  1,000,000

  	
   

  
	
  Assignments

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  n/a

  	
   

  



 


20

















 


“Multiemployer Plan”
means a “multiemployer plan” (within the meaning of Section 4001(a)(3) of
ERISA) and to which any member of the Controlled Group makes, is making, or is
obligated to make contributions or has made, or been obligated to make,
contributions, but does not include (i) Multiemployer Plans to which no
member of the Controlled Group had withdrawal liability and an obligation to contribute
at all times following the enactment of the Multiemployer Pension Plan
Amendments Act of 1980, and (ii) Multiemployer Plans as to which all
members of the Controlled Group have both completely withdrawn and paid the
full amount of any withdrawal liability.


 


“Net Income”
means, with respect to any fiscal period, for any Person the consolidated net
income of such Person and its consolidated subsidiaries, determined in
accordance with GAAP.


 


“Notes”
means, collectively, the Committed Loan Notes and the Competitive Loan Notes.


 


“Notice of
Assignment and Acceptance” means a Notice of Assignment and
Acceptance substantially in the form of Exhibit G.


 


“Notice of Letter
of Credit Withdrawal” means a request by the Company for the
withdrawal of a Letter of Credit pursuant to Section 2.11(m) substantially in
the form of Exhibit F.


 


“Notice of Lien”
means any “notice of lien” or similar document intended to be filed or recorded
with any court, registry, recorder’s office, central filing office or other
Governmental Authority for the purpose of evidencing, creating, perfecting or
preserving the priority of a Lien securing obligations owing to a Governmental
Authority.


 


“Notice of Participation” means a Notice of
Participation substantially in the form of Exhibit I.


 


“Obligations”
means all obligations of every kind or nature of each Credit Party from time to
time owed to the Administrative Agent, any Lender, any Person entitled to
indemnification, or any one or more of them, under any one or more of the Loan
Documents, whether for principal, interest, fees, expenses, indemnification or
otherwise, and whether absolute or contingent, due or to become due, matured or
unmatured, liquidated or unliquidated, now existing or hereafter arising,
pursuant to the terms of any of the Loan Documents, and including interest that
accrues after the commencement of any Insolvency Proceeding.


 


“Operating Lease”
means, as applied to any Person, any lease of Property which is not a Capital
Lease other than any such lease under which that Person is the lessor.


 


21

















 


“Ordinary Course
Guaranty Obligations” means any Guaranty Obligations of any Person
consisting of obligations in respect of surety bonds, letters of credit (other
than letters of credit in support of indebtedness for borrowed money of any
Person), performance bonds, leases, indemnities or similar obligations, in each
case incurred in connection with a transaction entered into in the Ordinary
Course of Business of such Person.


 


“Ordinary Course of
Business” means, in respect of any transaction involving any Person,
the ordinary course of such Person’s business, as conducted by any such Person
in accordance with past practice.


 


“Organization
Documents” means, for any corporation, the certificate or articles
of incorporation, the bylaws, any certificate of determination or instrument
relating to the rights of preferred shareholders of such corporation, and all
applicable resolutions of the board of directors (or any committee thereof) of
such corporation relating to the foregoing or the organization of such
corporation.


 


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


 


“Permitted Accounts
Receivable Financing” means a sale or discount of accounts
receivable of any Person (a) that does not involve the creation of a Lien
or negative pledge on any accounts receivable not so sold or discounted and
(b) that does not involve in the aggregate the sale or discount of accounts
receivable having a book value exceeding $100,000,000.


 


“Permitted
Disposition” means a Disposition of (a) inventory or other
assets sold, leased or otherwise disposed of in the Ordinary Course of Business
of the Company or a Subsidiary, (b) Dispositions of inventory, or used,
worn-out or surplus equipment, all in the Ordinary Course of Business,
(c) Dispositions of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment or where the Company or its
Subsidiary determine in good faith that the failure to replace such equipment
will not be detrimental to the business of the Company or its Subsidiary,
(d) a Disposition to the Company or a Subsidiary, (e) Dispositions of
accounts receivable in connection with a Permitted Accounts Receivable
Financing,
or (f) Dispositions identified on Schedule 7.02.


 


“Permitted Liens”
means:


 


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


 


22

















 


(b)  carriers’, warehousemen’s, mechanics’,
landlords’, materialmen’s, repairmen’s or other similar Liens arising in the
Ordinary Course of Business which are not delinquent or remain payable without
penalty or which are being contested in good faith and by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture or
sale of the Property subject thereto or which do not in the aggregate with
respect to any one Property so encumbered have a Material Adverse Effect;


 


(c)  Liens (other than any Lien imposed by ERISA)
incurred or pledges or deposits required in the Ordinary Course of Business in
connection with workers’ compensation, unemployment insurance and other social
security legislation;


 


(d)  (i) Liens on Property acquired by the
Company or any of its Subsidiaries that were in existence at the time of the
acquisition of such Property and were not created in contemplation of such
acquisition; (ii) Liens existing on any asset of any person at the time
such person becomes a Subsidiary of the Company and not created in
contemplation of such event; (iii) Liens on any asset of any person
existing at the time such person is merged or consolidated with or into the
Company or a Subsidiary of the Company and not created in contemplation of such
event; (iv) Liens arising out of the refinancing, extension, renewal or
refunding of any obligations secured by any Lien permitted by this clause (d); provided
that such obligations are not increased and are not secured by any additional
assets; and
(v) Liens related to the acquisition, construction or alteration of Property
(including liens placed upon the acquired Property up to 270 days following
such acquisition, or completion of such construction or alteration), including
purchase money liens;


 


(e)  easements, rights-of-way, restrictions and
other similar encumbrances incurred in the Ordinary Course of Business which do
not in any case materially detract from the value of the Property subject
thereto or interfere with the ordinary conduct of the businesses of the Company
and its Subsidiaries;


 


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


 


(g)  Liens on the Property of the Company or any
of its Subsidiaries securing (i) the performance of bids, trade contracts
(other than borrowed money),


 


23

















 


leases, statutory
obligations, and (ii) obligations on surety and appeal bonds, and
(iii) other obligations of a like nature incurred in the Ordinary Course
of Business;


 


(h)  Liens associated with a Permitted Accounts
Receivable Financing;


 


(i)  Liens on Property or assets of a Subsidiary
of the Company to secure Indebtedness of such Subsidiary to the Company or its
Subsidiaries;


 


(j)  Liens securing financing for all or a
portion of the purchase or construction cost of real Property acquired after
the Closing Date to be used in the Ordinary Course of the Business (provided
that any such Lien shall not encumber any other Property of the Company or its
Subsidiaries), including Capital Lease Obligations and the ownership by third
parties of assets capitalized as finance leases under GAAP;


 


(k)  Liens arising from purchase money financing
of equipment, including Capital Lease Obligations and the ownership by third
parties of assets capitalized as finance leases under GAAP;


 


(l)  Liens arising in the Ordinary Course of
Business in favor of a customer, which Liens are inherent in the government
contracting process; and


 


(m)   Liens on assets identified as “Restricted Cash” on the Company’s balance
sheet which are payable to third parties.


 


“Person”
means any individual or entity, including a trustee, corporation, limited
liability company, general partnership, limited partnership, joint stock
company, trust, estate, unincorporated organization, business association,
firm, joint venture, Governmental Authority, or other entity.


 


“Plan”
means an employee pension benefit plan (as defined in Section 3(2) of ERISA)
which any member of the Controlled Group sponsors or maintains or to which the
Company or member of the Controlled Group makes or is obligated to make
contributions, and which is subject to the provisions of Title IV of ERISA.


 


“Principal
Financial Center” means (a) in the case of Canadian Dollars,
Toronto, Canada, (b) in the case of Euros, Frankfurt, Germany, (c) in the case
of Yen, Tokyo, Japan, (d) in the case of British Pounds Sterling, London,
United Kingdom, and (d) in the case of any Foreign Currency other than listed
in subclauses (a) through (d), as agreed between the Administrative Agent and
the Company on or prior to the date on which a Foreign Currency Loan in such
other Foreign Currency is made.


 


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


 


24

















 


 


“Pro Rata Share”
means, with respect to each Lender, the percentage of the combined Commitments
set forth opposite the name of that Lender on Schedule 2.01.


 


“Qualified Plan”
means a pension plan (as defined in Section 3(2) of ERISA) intended to be
tax-qualified under Section 401(a) of the Code and which any member of the
Controlled Group sponsors, maintains, or to which it makes or is obligated to
make contributions, or in the case of a multiple employer plan (as described in
Section 4064 (a) of ERISA) has made contributions at any time during the
immediately preceding period covering at least five (5) plan years, but
excluding any Multiemployer Plan.


 


“Quarterly Payment
Date” means each June 30, September 30, December 31
and March 31.


 


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


 


“Reportable Event”
means any of the events set forth in Section 4043(b) of ERISA or the
regulations thereunder for which the requirement of 30-day notice has not been
waived, a withdrawal from a Plan described in Section 4063 of ERISA, or a
cessation of operations described in Section 4062(e) of ERISA.


 


“Request for
Extension of Credit” means a written request substantially in the
form of Exhibit A, duly completed and signed by a Responsible Officer.


 


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


 


“Requisite Lenders”
means (a) as of any date of determination if the Commitments are then in
effect, Lenders having in the aggregate 51% or more of the combined Commitments
then in effect and (b) as of any date of determination if the Commitments
have then been terminated and there are Loans outstanding, Lenders holding
Loans aggregating 51% or more of the aggregate outstanding principal amount of
the Loans.


 


“Requisite Notice”
means, unless otherwise provided herein, (a) irrevocable telephonic notice
to the intended recipient, promptly followed by a written notice to such
Person, or (b) irrevocable written notice to the intended recipient, in
each case (x) delivered or made to such Person at the address, telephone
number or facsimile number set forth on Schedule 10.02 or as otherwise
designated by such Person by Requisite Notice to the Administrative Agent and
(y) if made by any Credit Party, given by a Responsible Officer.  Any written notice shall be in the form, if
any, prescribed in


 


25

















 


the applicable section and may be given by facsimile provided such
facsimile is promptly confirmed by a telephone call to such recipient.


 


“Requisite Time”
means, with respect to any of the actions listed below, the time set forth
opposite such action on or prior to the date set forth below (all times are New
York Time):


 


	
  Action

  	
   

  	
  Time

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Borrowing
  of or Conversion into, Base Rate Loans

  	
   

  	
  11:00 a.m.

  	
   

  	
  Relevant date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Prepayment
  of Base Rate Loans

  	
   

  	
  1:00 p.m.

  	
   

  	
  Relevant date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Borrowing
  of, Continuation of, prepayment of or Conversion into Dollar LIBOR Loans of
  1, 2, 3 or 6 months

  	
   

  	
  1:00 p.m.

  	
   

  	
  3 Business Days prior
  to relevant date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Borrowing
  of, Continuation of, prepayment of or Conversion into, Dollar LIBOR Loans of
  9 or 12 months

  	
   

  	
  1:00 p.m.

  	
   

  	
  3 Business Days prior
  to relevant date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Initial
  Borrowing of Foreign Currency Loans by a Foreign Borrower

  	
   

  	
  1:00 p.m.

  	
   

  	
  5 Business Days prior
  to Credit Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other
  Borrowings, Continuations or prepayment of Foreign Currency Loans

  	
   

  	
  1:00 p.m.

  	
   

  	
  3 Business Days prior
  to relevant date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Voluntary
  Reduction of Commitments

  	
   

  	
  1:00 p.m.

  	
   

  	
  3 Business Days prior
  to relevant date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Funds
  made available by Lenders to Administrative Agent

  	
   

  	
  1:00 p.m.

  	
   

  	
  Relevant Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Funds
  made available by applicable Credit Party 
  to Administrative Agent

  	
   

  	
  2:00 p.m.

  	
   

  	
  Relevant Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Termination
  of Commitment, replacement

  	
   

  	
  1:00 p.m.

  	
   

  	
  3 Business Days prior
  to date of termination or replacement

  



 


“Responsible
Officer” means the chief executive officer, the president, the chief
operating officer, the chief financial officer, the chief legal officer, the
treasurer or the controller of each of the Credit Parties.  Any document or certificate hereunder that
is signed or executed by a Responsible Officer shall be conclusively presumed
to have been


 


26

















 


authorized by all necessary corporate, partnership and/or other action
on the part of the relevant Credit Party and to have acted on behalf of such
Credit Party.


 


“Securities Act”
means the U.S. Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.


 


“Significant
Subsidiary” means, with respect to any Person, any Subsidiary that
meets the definition of “significant subsidiary” under Rule 1-02(w) of
Regulation S-X promulgated by the U.S. Securities and Exchange Commission.


 


“Statutory Reserve
Rate” means, (a) for any Dollar LIBOR Loan, a fraction (expressed as
a decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate maximum reserve percentages, if any
(expressed as a decimal, rounded upward to the nearest 1/100th of 1%), in
effect on the date Dollar LIBOR for such Interest Period is determined (whether
or not applicable to any Bank) under regulations issued from time to time by
the Federal Reserve Board for determining the reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with respect
to eurocurrency funding (currently referred to as “Eurocurrency liabilities”)
having a term comparable to such Interest Period and (b) for any Foreign
Currency Loan, a fraction (expressed as a decimal), the numerator of which is
the number one and the denominator of which is the number one minus the
aggregate maximum reserve percentages, if any (expressed as a decimal, rounded
upward to the nearest 1/100th of 1%), in effect on the date IBOR for such
Interest Period is determined (whether or not applicable to any Bank) under
generally applicable regulations and guidelines for determining the reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to eurocurrency funding in the applicable Foreign
Currency having a term comparable to such Interest Period.  The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.


 


“Subsidiary”
of a Person means any corporation, association, partnership, joint venture or
other business entity of which more than 50% of the voting stock or other
equity interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof.


 


“Synthetic Lease”
means, with respect to any Person, (a) a so-called synthetic lease, or
(b) an agreement for the use or possession of property creating
obligations which do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
Indebtedness of such Person (without regard to accounting treatment).


 


27

















 


“364-Day Agreement”
means the 364-Day credit agreement, dated as of July 31, 2002, among the
Company, JPMorgan Chase Bank, as Administrative Agent, and various lenders.


 


“to the best
knowledge of” means, when modifying a representation, warranty or
other statement of any Person, that the fact or situation described therein is
known by the Person (or, in the case of a Person other than a natural Person,
known by a Responsible Officer) making the representation, warranty or other
statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable Person in
similar circumstances would have done) would have been known by the Person (or,
in the case of a Person other than a natural Person, would have been known by a
Responsible Officer).


 


“Transactions”
means the execution, delivery and performance by the Company of this Agreement,
the borrowing of Loans and the use of the proceeds thereof.


 


“type”
of Loan means (a) a Base Rate Loan, (b) a Dollar LIBOR Loan, (c) a
Competitive Loan bearing interest at an Absolute Rate, (d) a Competitive Loan
bearing interest based upon Adjusted Dollar LIBOR or (e) a Foreign
Currency Loan.


 


“Unfunded Pension
Liabilities” means with respect to any Plan at any time, the amount
(if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed
by the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair
market value of all Plan assets allocable to such liabilities under
Title IV of ERISA (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 any other Person under Title IV of ERISA.


 


“Yen”
means lawful money of Japan.


 


Section 1.02. 
Performance; Time.  Except as otherwise specifically provided herein,
whenever any performance obligation hereunder shall be stated to be due or
required to be satisfied on a day other than a Business Day, such performance
shall be made or satisfied on the next succeeding Business Day.  In the computation of periods of time from a
specified date to a later specified date, the word “from” means “from and
including”; the words “to” and “until” each mean “to but excluding”, and the
word “through” means “to and including.” 
If any provision of this Agreement refers to any action taken or to be
taken by any Person, or which such Person is prohibited from taking, such
provision shall be interpreted to encompass any and all means, direct or
indirect, of taking, or not taking, such action.


 


Section 1.03. 
Accounting Principles.  Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with


 


28

















 


GAAP, consistently applied; provided, that, if the Company notifies
the Administrative Agent that the Company wishes to amend any provision hereof
to eliminate the effect of any change in GAAP (or if the Administrative Agent
notifies the Company that the Requisite Lenders wish to amend any provision
hereof for such purpose), then such provision shall be applied on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such provision is amended in a manner
satisfactory to the Company and the Requisite Lenders.


 


Section 1.04. 
Use of Defined Terms.  Any defined term used in the plural shall
refer to all members of the relevant class, and any defined term used in the
singular shall refer to any one or more of the members of the relevant class.


 


Section 1.05. 
Rounding.  Any financial ratios required to be
maintained by the Company pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed in
this Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.


 


Section 1.06. 
Exhibits and Schedules.  All Exhibits and Schedules to this Agreement
are incorporated herein by this reference. 
A matter disclosed on any Schedule shall be deemed disclosed on all Schedules.


 


Section 1.07. 
References to “Subsidiaries”.  Any reference herein to “the Company and its
Subsidiaries”, “any Borrower and its Subsidiaries”, “any Foreign Borrower and
its Subsidiaries”, “any Credit Party and its Subsidiaries” or the like shall refer
solely, as the case may be, to the Company, the applicable Borrower, Foreign
Borrower or Credit Party during such times, if any, as the Company, such
Borrower, Foreign Borrower or Credit Party shall have no Subsidiaries.


 


Section 1.08. 
Miscellaneous Terms.  The term “or”
is disjunctive; the term “and” is
conjunctive.  The term “shall” is mandatory; the term “may” is permissive.  Masculine terms also apply to females;
feminine terms also apply to males.  The
term “including” is by way of
example and not limitation.


 


ARTICLE II


 


COMMITMENTS; INTEREST, FEES, PAYMENT
PROCEDURES


 


Section 2.01. 
The Commitments.


 


(a)                                  Subject
to the terms and conditions set forth in this Agreement, each Lender severally
(and not jointly) agrees, during the Availability Period (i) to make, Convert
and Continue Dollar Loans to the Company as the Company may request, and


 


29

















 


(ii) to make and Continue Foreign Currency Loans to the Company or
any Foreign Borrower as the Company or such Foreign Borrower may request;
provided, however, that in each case: 
(A) for any Lender, the sum of (1) the aggregate LC Exposure
of such Lender, (2) the aggregate principal amount of all Dollar Loans
made by such Lender, and (3) the Equivalent Amount of the aggregate principal
amount of all Foreign Currency Loans made by such Lender, shall not exceed such
Lender’s Commitment at any time, (B) the sum of (1) the aggregate LC
Exposure of all Lenders, (2) the aggregate principal amount of all Dollar
Loans made by all Lenders, (3) the Equivalent Amount of the aggregate
principal amount of all Foreign Currency Loans made by all Lenders, and
(4) the aggregate principal amount of all Competitive Loans made by all
Lenders, shall not exceed the combined Commitments at any time, and
(C) the Equivalent Amount of the aggregate principal amount of all Foreign
Currency Loans made by all Lenders shall not exceed the Foreign Currency Limit
at any time.  Subject to the foregoing
and other terms and conditions hereof, Committed Loans may be Borrowed, prepaid
and reborrowed as set forth herein without premium or penalty.  The Borrower may Convert a Dollar LIBOR Loan
to a Base Rate Loan or a Base Rate Loan to a Dollar LIBOR Loan upon request,
subject to the terms and conditions of this Agreement.  The Borrower may not Convert a Dollar Loan
to a Foreign Currency Loan, a Foreign Currency Loan to a Dollar Loan or a Loan
in one Foreign Currency to a Loan in any other Foreign Currency.  Each Competitive Loan shall be made in accordance with
Section 2.03.  The available
Commitments also may be utilized by the Company to obtain Letters of Credit in
accordance with Section 2.11.


 


(b)                                 Committed
Loans made by each Lender shall be evidenced by one or more loan accounts or
records maintained by such Lender in the Ordinary Course of Business.  Upon the request of any Lender made through
the Administrative Agent, such Lender’s Committed Loans may be evidenced by one
or more Committed Loan Notes, instead of or in addition to loan accounts.  (Each such Lender may endorse on the
schedules annexed to its Committed Loan Note the date, amount and maturity of
its Committed Loans and payments with respect thereto.) Such loan accounts,
records or Notes shall be conclusive absent manifest error of the amount of
such Committed Loans and payments thereon. 
Any failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of any Credit Party to pay any amount
owing with respect to the Committed Loans.


 


(c)                                  Unless
the Administrative Agent and the Requisite Lenders otherwise consent, Loans
with no more than 15 different Interest Periods shall be outstanding at
any one time; provided
that for the purposes of this sentence only, “Loans” shall mean all Loans
outstanding under this Agreement, plus all loans outstanding under the 364-Day
Credit Agreement.


 


(d)                                 The
Company may designate one or more Subsidiaries to become Foreign Borrowers for
purposes of receiving Foreign Currency Loans, provided that, (i) such
Subsidiary is, directly or indirectly through one or more intermediaries,
wholly-owned


 


30

















 


by the Company, (ii) such Subsidiary is neither organized nor domiciled
in any State of the United States of America or in the District of Columbia,
(iii) the Administrative Agent shall receive a duly executed Foreign Borrower
Joinder Agreement, together with such organization documentation, certificates,
opinions and other documentation and information, as may be reasonably requested
by the Administrative Agent to evidence compliance with the conditions to the
effectiveness of such Foreign Borrower Joinder Agreement described in
Section 4.03.  Foreign Currency
Loans shall be Borrowed and Continued as Euromarket Funded unless the Administrative
Agent, each Lender and the Company or the applicable Foreign Borrower, as the
case may be, agree that such Foreign Currency Loans shall be Locally Funded.


 


Section 2.02. 
Borrowings, Conversions and
Continuations of Committed Loans.


 


(a)                                  A
Borrower may irrevocably request a Borrowing, Conversion or Continuation of
Committed Loans in a Minimum Amount by delivering a duly completed Request for
Extension of Credit by Requisite Notice to the Administrative Agent not later
than the Requisite Time.  All
Borrowings, Conversions or Continuations in respect of Dollar Loans shall
constitute requests for Base Rate Loans and all Borrowings or Continuations in
respect of Foreign Currency Loans shall constitute requests for Foreign
Currency Loans with an Interest Period of one month, in each case unless
properly and timely otherwise designated as set forth in the prior
sentence.  In the case of Dollar LIBOR
Loans, each Lender shall promptly notify the Administrative Agent (who shall
promptly notify the applicable Borrower) whether such Lender, in its sole
discretion, consents to funding a Dollar LIBOR Loan for such requested Interest
Period(s) for such Borrowing.  If any
Lender does not so consent, Dollar LIBOR Loans shall not be available for such
Interest Period(s) for such Borrowing.


 


(b)                                 Each Committed Loan shall be
made as part of a Borrowing consisting of Committed Loans made by the Lenders
ratably in accordance with their respective Commitments.  Promptly following receipt of a
Request for Extension of Credit, the Administrative Agent shall notify each
Lender of its Pro Rata Share thereof by Requisite Notice.  Each Lender shall make the funds for its
Committed Loan available to the Administrative Agent at the Administrative
Agent’s Office not later than the Requisite Time on the Business Day specified
in such Request for Extension of Credit. 
Upon satisfaction or waiver of the applicable conditions set forth in
Article IV, all funds so received shall be made available to Borrower.


 


(c)                                  The
Administrative Agent shall promptly notify the applicable Borrower and the
Lenders of Adjusted IBOR applicable to any IBOR Loan upon determination of
same.


 


(d)                                 No
Loans other than Base Rate Loans may be requested or continued during the
existence of a Default or Event of Default. 
During the existence of


 


31

















 


a Default or Event of Default, the Requisite Lenders may determine that
(i) any or all of the then outstanding Dollar Loans that are Dollar LIBOR Loans
shall be Converted to Base Rate Loans and/or (ii) any or all of the outstanding
Foreign Currency Loans with an Interest Period greater than one month shall be
replaced by Foreign Currency Loans with an Interest Period of one month.  Such Conversion or replacement shall be
effective upon notice to the applicable Borrower from the Administrative Agent
and shall continue so long as such Default or Event of Default continues to
exist, or in the case of Foreign Currency Loans, the earlier expiration of the
applicable Interest Period.


 


(e)                                  If
a Committed Loan is to be made on the same date that another Committed Loan is
due and payable, the applicable Borrower or the Lenders, as the case may be,
shall make available to the Administrative Agent the net amount of funds giving
effect to both such Committed Loans and the effect for purposes of this
Agreement shall be the same as if separate transfers of funds had been made
with respect to each such Committed Loan.


 


(f)                                    The
failure of any Lender to make any Committed Loan on any date shall not relieve
any other Lender of any obligation to make a Committed Loan on such date, but
no Lender shall be responsible for the failure of any other Lender to so make
its Committed Loan.


 


Section 2.03. 
Competitive Loans.


 


(a)                                  Subject
to the terms and conditions hereof, at any time and from time to time during
the Availability Period, each Lender may in its sole and absolute discretion
make Competitive Loans to the Company in such principal amounts as the Company
may request; provided, however, that the sum of (i) the aggregate LC Exposure
of all Lenders, (ii) the aggregate principal amount of all Dollar Loans made by
all Lenders, (iii) the Equivalent Amount at any time of the aggregate principal
amount of all Foreign Currency Loans made by all Lenders, and (iv) the
aggregate principal amount of all Competitive Loans, shall not exceed at any
time the combined Commitments; provided, further, that the outstanding
Competitive Loans made by any Lender may exceed its Commitment. The Competitive
Loans shall be deemed to utilize the combined Commitments by an amount equal to
the aggregate outstanding principal amount thereof.


 


(b)                                 The
Company may irrevocably request Competitive Loans in a Competitive Loan Minimum
Amount therefor by delivering a duly completed Competitive Bid Request by
Requisite Notice not later than the Competitive Loan Requisite Time therefor.
Each Competitive Bid Request shall state whether a Competitive Bid is requested
on the basis of a fixed interest rate (an “Absolute
Rate Bid”) or on the basis of a margin above or below Adjusted
Dollar LIBOR (a “LIBOR Margin Bid”).
The Company may not request Competitive Bids for more than three maturities nor
request more than one type of Competitive Loan in a single Competitive Bid
Request. Unless the Administrative Agent otherwise agrees, in its sole and
absolute discretion, the Company


 


32

















 


may not submit a Competitive Bid Request if it has submitted another
Competitive Bid Request within the prior five Business Days.


 


(c)                                  No
Competitive Bid Request shall be made for an Absolute Rate Bid with a maturity
of less than 14 days or more than 180 days, for a LIBOR Margin Bid with a
maturity other than one, two, three or six months, or in any case with a maturity
date subsequent to the Maturity Date. No more than ten different maturities for
Competitive Loans may be outstanding at any time.


 


(d)                                 The
Administrative Agent shall promptly notify the Lenders of a Competitive Bid
Request by delivering a written copy thereof to the Lenders. Each Lender may,
in its sole and absolute discretion, bid or not bid on all or a portion of the
Competitive Loans requested in such Competitive Bid Request by delivering by
Requisite Notice an irrevocable, duly completed Competitive Bid to the
Administrative Agent by the Competitive Loan Requisite Time for delivering
Competitive Bids. Any Competitive Bid received after such Competitive Loan
Requisite Time, that is in a form other than a duly completed Competitive Bid
Request, or that is otherwise not responsive to the Competitive Bid Request
shall be disregarded. A Lender may subsequently correct any Competitive Bid
containing a manifest error if it does so by the Competitive Loan Requisite
Time for delivering Competitive Bids. The Administrative Agent may, but shall
not be required to, notify any Lender of any manifest error it detects in such
Lender’s Competitive Bid.


 


(e)                                  The
Competitive Bid Maximum offered by a Lender for any Competitive Loan(s)
requested in a Competitive Bid may be less than the principal amount of such
Competitive Loan(s) requested by the Company, but shall not be less than the
Competitive Loan Minimum Amount for any Competitive Loan for which such Lender
is bidding. Each Competitive Bid shall expire unless accepted by the Company
prior to the Competitive Loan Requisite Time for accepting Competitive Bids.


 


(f)                                    The
Administrative Agent shall promptly notify the Company of the names of the
Lenders providing conforming Competitive Bids and the terms of such Competitive
Bids. The Company may, in its sole and absolute discretion, accept or reject
any Competitive Bid, or any portion thereof, provided, that if the Company
accepts any Competitive Bid, or any portion thereof, the following shall apply:  (i) the Company must notify the
Administrative Agent of its acceptance of any Competitive Bids not later than
the Competitive Loan Requisite Time for doing so, (ii) the Company must
accept all Absolute Rate Bids at all lower fixed interest rates before
accepting any portion of Absolute Rate Bids at a higher fixed interest rate,
(iii) the Company must accept all LIBOR Margin Bids at all lower margins
over Adjusted Dollar LIBOR before accepting any portion of LIBOR Margin Bids at
a higher margin over Adjusted Dollar LIBOR, (iv) each Competitive Loan to be
made must be in a Competitive Loan Minimum Amount therefor, (v) if two or more
Lenders have submitted a Competitive Bid at the same fixed interest rate or
margin, then the Company must accept either all of such Competitive Bids


 


33

















 


or accept such Competitive Bids in the same proportion as the
Competitive Bid Maximum of each Lender for such Competitive Loan bears to the
aggregate Competitive Bid Maximums of all such Lenders for such Competitive
Loans (subject to clause (iv) above) and (vi) the Company may not accept
Competitive Bids for an aggregate amount in excess of the Competitive Loans
requested in its Competitive Bid Request.


 


(g)                                 The
Administrative Agent shall promptly notify each of the Lenders whose
Competitive Bid, or any portion thereof, has been accepted or rejected by the
Company by telephone, which notification shall promptly be confirmed in
writing, delivered in person or by telecopier to such Lenders. Any Competitive Bid,
or portion thereof, not timely accepted by the Company and/or timely notified
by the Administrative Agent to a Lender as having been accepted shall be deemed
rejected.


 


(h)                                 In
the case of a LIBOR Margin Bid, the Administrative Agent shall determine Adjusted
Dollar LIBOR on the date which is two Business Days prior to the date of the
proposed Competitive Loan, and shall promptly thereafter notify the Company and
the Lenders whose LIBOR Margin Bids were accepted by the Company of such
Adjusted Dollar LIBOR.


 


(i)                                     Each
Lender which has had a Competitive Bid, or portion thereof, accepted by the
Company shall make the funds for its Competitive Loan(s) available to the
Administrative Agent at the Administrative Agent’s Office not later than the
Requisite Time for making such funds available on the Business Day specified in
such Competitive Loan Request. Upon satisfaction or waiver of the applicable
conditions set forth in Article IV, all funds so received shall be made
available to the Company.


 


(j)                                     Each
Lender’s Competitive Loan shall be evidenced by that Lender’s Competitive Loan
Note or by one or more loan accounts or records maintained by such Lender in
the Ordinary Course of Business, in each case subject to Section 2.01 (b).


 


(k)                                  Each
Competitive Loan shall be due and payable on the maturity date of such
Competitive Loan.


 


Section 2.04. 
Prepayments.


 


(a)                                  The
applicable Borrower may at any time and from time to time voluntarily prepay
Committed Loans in a Minimum Amount after delivering an irrevocable Requisite
Notice not later than the Requisite Time for prepayments.  The Administrative Agent will promptly
notify each Lender thereof and of such Lender’s Pro Rata Share of such
prepayment.  Each prepayment by a
Borrower must be made ratably to all outstanding Committed Loans of such
Borrower borrowed on the same day.


 


(b)                                 If
for any reason either (i) the sum of (A) the aggregate LC Exposure of all
Lenders, (B) the aggregate principal amount of all Dollar Loans made by


 


34

















 


all Lenders, (C) the Equivalent Amount of the aggregate principal
amount of all Foreign Currency Loans made by all Lenders and (D) the aggregate
principal amount of all Competitive Loans made by all Lenders, exceeds the
combined Commitments in effect at any time or (ii) the Equivalent Amount of the
aggregate principal amount of all Foreign Currency Loans made by the Lenders
exceeds the Foreign Currency Limit, then upon written request of the
Administrative Agent the Company shall immediately prepay or cause one or more
Foreign Borrowers to immediately prepay Committed Loans sufficient to cure such
overage.


 


(c)                                  Any
prepayment of an IBOR Loan shall be accompanied by all accrued interest
thereon, together with the costs set forth in Section 3.05.


 


(d)                                 Competitive
Loans may not be prepaid unless (i) expressly so provided in the Competitive
Bid Request and Competitive Bid for such Competitive Loan or (ii) otherwise
agreed by the Company and the Lender making such Competitive Loan after notice
to the Administrative Agent.


 


(e)                                  The
Company may from time to time elect to prepay pursuant to the Guaranty all or
part of any Foreign Currency Loan of a Foreign Borrower and such prepayment by
the Company shall be made in the manner and subject to the terms that a
prepayment would be made by the Foreign Borrower under this Agreement.


 


Section 2.05. 
Voluntary Reduction of Commitments.


 


The Company shall have the right, at any time and from
time to time, without penalty or charge, upon giving Requisite Notice not later
than the Requisite Time, voluntarily to reduce, permanently and irrevocably, in
a Minimum Amount, or to terminate, the then unused portion of the Commitments, provided
that any such reduction or termination shall be accompanied by payment of all
accrued and unpaid Facility Fees with respect to the portion of the Commitments
being reduced or terminated.  The
Administrative Agent shall promptly notify the Lenders of any reduction or
termination of the Commitments under this Section.  Each Lender’s Commitment shall be reduced by an amount equal to
such Lender’s Pro Rata Share times the amount of such reduction.


 


Section 2.06. 
Principal and Interest.


 


(a)                                  If
not sooner paid, the outstanding principal amount of each Committed Loan and
Competitive Loan shall be due and payable on the Maturity Date or, if such Loan
is not Continued or Converted, at the end of the applicable Interest Period.


 


(b)                                 Each
Borrower shall pay interest on the unpaid principal amount of the Loans made to
it (before and after default, before and after maturity, before and after
judgment, and before and after the commencement of any Insolvency Proceeding)
from the date borrowed until paid in full (whether at stated maturity, by
acceleration or


 


35

















 


otherwise) on each Interest Payment Date for each type of Loan at a
rate per annum equal to the applicable interest rate determined in accordance
with the definition of such type of Loan in this Agreement, plus, in the case
of IBOR Loans, the Applicable Amount.


 


(c)                                  If
any amount of principal of or interest on any Loan or any other amount payable
under any Loan Document is not paid in full when due (whether by acceleration
or otherwise) or, in the case of reimbursement obligations under Section 2.11,
one Business Day after the date such reimbursement obligations accrues, each
Borrower shall pay interest on such unpaid amount from the date such amount
becomes due (or, in the case of reimbursement obligations under Section 2.11,
one Business Day after the date such reimbursement obligation accrues) until
the date such amount is paid in full, and after as well as before any entry of
judgment thereon, at a fluctuating rate of interest rate equal to the Default
Rate.  Accrued and unpaid interest on
past due amounts (including, without limitation, interest on past due interest)
shall be compounded monthly, on the last day of each calendar month, to the
fullest extent permitted by Requirement of Law, and payable on demand.


 


(d)                                 Amounts
due under this Agreement in respect of any Loan shall be deemed paid for the
purposes of this Agreement only, in the case of Dollar Loans, to the extent
paid in Dollars or, in the case of Foreign Currency Loans, to the extent paid
in the applicable Foreign Currency.  If
the Administrative Agent receives any payment in respect of any Loan in any
currency other than the currency of such Loan, (including upon enforcement of
or collection of a judgment), the Administrative Agent may in its sole
discretion return such payment to the payor or convert such payment to the
currency of such Loan and apply the net proceeds to payment of amounts due in
respect of such Loan in accordance with this Agreement, provided that (i) amounts due in respect
of such Loan shall be deemed to have been paid by the Borrower only to the
extent of the net proceeds, if any, so applied by the Administrative Agent and
(ii) the Administrative Agent shall have no liability to any Credit Party,
Lender or any other Person arising out of or relating to such conversion of
funds or the exchange rate utilized in connection therewith, in each case
except to the extent of the Administrative Agent’s own gross negligence or
willful misconduct.


 


Section 2.07. 
Fees.


 


(a)                                  Facility Fee.  The Company shall pay to the Administrative Agent, for the
account of each Lender, a Facility Fee equal to the Applicable Amount for the
Facility Fee times such Lender’s Pro Rata Share of the daily aggregate amount
of the combined Commitments, (determined daily on a per annum basis).  The Facility Fee under the Commitments shall
accrue from the Closing Date to but excluding the Maturity Date and shall be
payable quarterly in arrears on each Quarterly Payment Date and on the Maturity
Date.  The Facility Fee shall be
calculated quarterly in arrears; if there is any change in the Applicable
Amount during any quarter, the average daily amount shall be


 


36

















 


computed and multiplied by the Applicable Amount separately for each
period that such Applicable Amount was in effect during such quarter.


 


(b)                                 Agency Fee.  The Company shall pay to the Administrative Agent an agency fee
in such amounts and at such times as heretofore agreed upon by letter agreement
between the Company and the Administrative Agent.  The agency fee is for the services to be performed by the
Administrative Agent in acting as Administrative Agent and is fully earned on
the date paid.  The agency fee paid to
the Administrative Agent is solely for its own account and is nonrefundable.


 


(c)                                  Letter of Credit Fees.  The
Company shall
pay


 


(i)                                     to the Administrative Agent
for the account of each
Lender a participation fee with respect to its participations in Letters of
Credit, which shall accrue in Dollars at the same Applicable Amount used to determine
the interest rate applicable to Committed Loans that are Dollar LIBOR Loans or
Foreign Currency Loans on the average daily amount of such Lender’s LC
Exposure, as determined by the Issuing Bank using its customary method of
calculating the Dollar amount equivalent of its Foreign Currency Letters of
Credit (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Closing Date to but
excluding the later of the date on which such Lender’s Commitment terminates
and the date on which such Lender ceases to have any LC Exposure, and


 


(ii)                                  to the Issuing Bank a
fronting fee and fees with respect of the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder, as may
be separately agreed upon between the Company and the Issuing Bank.


 


Participation fees accrued through and including the last
day of March, June, September and December of each year shall be payable on the
third Business Day following such last day, commencing on the first such date
to occur after the Closing Date; provided that all such fees shall be payable
on the date on which the Commitments terminate and any such fees accruing after
the date on which the Commitments terminate shall be payable on demand.  Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable as agreed between the Issuing Bank
and the Company.  All participation fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).


 


Section 2.08. 
Computation of Fees and Interest.  Computations of (i) interest with respect to
Base Rate Loans and (ii) Local Market IBOR (but not the Applicable Amount or
any fees or other amounts) with respect to Foreign Currency Loans in British
Pounds Sterling shall be calculated on the basis of a year of 365 or 366 days,
as the case may be, and the actual number of days elapsed; computations of
interest


 


37

















 


on all other types of Loans and all fees and other amounts under this
Agreement shall be calculated on the basis of a year of 360 days and the actual
number of days elapsed, which results in a higher yield to the Lenders than a
method based on a year of 365 or 366 days.  Interest shall accrue on each Loan for the day on which the Loan
is made; interest shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid. 
Notwithstanding anything in this Agreement to the contrary, interest in
excess of the maximum amount permitted by any Requirement of Law shall not
accrue or be payable hereunder, and any amount paid as interest hereunder which
would otherwise be in excess of such maximum permitted amount shall instead be
treated as a payment of principal.


 


Section 2.09. 
Manner and Treatment of Payments among the Lenders, Borrowers and the Administrative
Agent.


 


(a)                                  Unless
otherwise provided herein, all payments by any Credit Party or any Lender
hereunder shall be made to the Administrative Agent at the Administrative
Agent’s Office and account, or to any Person at such place and account as the
Administrative Agent may designate, in immediately available funds without
defense, setoff or counterclaim not later than the Requisite Time.  All payments received after the Requisite
Time shall be deemed received on the next succeeding Business Day.  All payments of fees pursuant to Section
2.07 shall be payable by the Company in Dollars.  All payments of principal of or interest on Competitive Loans or
Committed Loans other than Foreign Currency Loans shall be payable in
Dollars.  All payments of principal of
or interest in a Foreign Currency Loan shall be payable in the applicable Foreign
Currency.


 


(b)                                 Upon
satisfaction of any applicable terms and conditions set forth herein, the
Administrative Agent shall promptly make any amounts received in accordance
with the prior subsection available in like funds received as follows:
(i) if payable to any Borrower, by crediting an account of such Borrower
maintained with the Administrative Agent in New York City and designated by
such Borrower in the applicable Request for Extension of Credit or Competitive
Bid Request or, if no account is maintained by such Borrower with the
Administrative Agent, then by wire transfer to an account designated in writing
by such Borrower and delivered to Administrative Agent, and (ii) if payable to
any Lender, by wire transfer to such Lender at the address specified in
Schedule 10.02.  The Administrative
Agent’s determination, or any Lender’s determination not contradictory thereto,
of any amount payable hereunder shall be conclusive in the absence of manifest
error.


 


(c)                                  Subject
to the definition of “Interest Period,”
if any payment to be made by any Borrower shall come due on a day other than a
Business Day, payment shall instead be considered due on the next succeeding
Business Day and the extension of time shall be reflected in computing interest
and fees.


 


38

















 


(d)                                 Unless
any Borrower or Lender has notified the Administrative Agent prior to the date
any payment to be made by it is due, that it does not intend to remit such
payment, the Administrative Agent may, in its discretion, assume that such
Borrower or Lender, as the case may be, has timely remitted such payment and
may, in its discretion and in reliance thereon, make available such payment to
the Person entitled thereto.  If such
payment was not in fact remitted to the Administrative Agent, then:


 


(i)                                     if
any Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Administrative Agent the amount of such assumed payment made
available to such Lender, together with interest thereon in respect of each day
from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent at the greater of (x) the Federal Funds Rate and (y) such
rate as may be determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation; and


 


(ii)                                  if
any Lender failed to make such payment, such Lender shall on the Business Day
following such Credit Date pay to the Administrative Agent the amount of such
assumed payment made available to the applicable Borrower, together with
interest thereon in respect of each day from and including the date such amount
was made available by the Administrative Agent to such Borrower to the date
such amount is paid to the Administrative Agent at the greater of (x) the
Federal Funds Rate and (y) such rate as may be determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.  Nothing herein shall be deemed to relieve
any Lender from its obligation to fulfill its Commitments or to prejudice any
rights which the Administrative Agent or any Borrower may have against any
Lender as a result of any default by such Lender hereunder.


 


(iii)                               if
any Lender failed to make a payment funding a Committed Loan, and fails to make
such payment on the Business Day following the Credit Date, the applicable
Borrower shall repay such Lender’s failed payment funding of such Commitment
Loan to the Administrative Agent immediately upon receipt of notice from the
Administrative Agent regarding such failure to pay by any such Lender.


 


Section 2.10. 
Funding Sources.  Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.


 


39

















 


Section 2.11.  Letters of Credit.


 


(a)                                  General.  Subject to the terms and conditions set forth herein, the Company may request the issuance of
Letters of Credit for its own account or for the account of any of its
Subsidiaries, in a form reasonably acceptable to the Administrative Agent and
the Issuing Bank, at any time and from time to time during the Availability
Period.  In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement submitted
by the Company to, or entered into by the Company with, the Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement
shall control.


 


(b)                                 Notice of
Issuance, Incorporation, Amendment, Renewal, Extension; Certain Conditions.  Whenever the Company desires to (i) have a Letter of Credit
issued hereunder, (ii) incorporate an existing letter of credit not issued
hereunder as a Letter of Credit for the purposes hereof or (iii) amend, renew
or extend a Letter of Credit outstanding hereunder, the Company shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Bank) to the Issuing Bank and
the Administrative Agent (not less than three Business Days in advance of the
requested date of issuance, incorporation, amendment, renewal or extension) an
LC Request; specifying information as provided in the form attached
hereto as Exhibit E and such other information as shall be necessary in the
determination of the Issuing Bank to prepare, incorporate, amend, renew or
extend such Letter of Credit.  The date
of issuance, incorporation, amendment, renewal or extension specified in such
LC Request shall be a Business Day, and the date on which such Letter of Credit
is to expire shall comply with paragraph (c) of this Section.  If
requested by the Issuing Bank, the Company also shall submit a letter of credit
application on the Issuing Bank’s standard form in connection with any request
for a Letter of Credit.  A Letter of
Credit shall be issued, incorporated, amended, renewed or extended only if (and
upon issuance, incorporation, amendment, renewal or extension of each Letter of
Credit the Company shall be deemed to represent and warrant that), after giving
effect to such issuance, incorporation, amendment, renewal or extension
(i) the LC Exposure shall not exceed $150,000,000 and (ii) the
sum of (A) the aggregate LC Exposure of all Lenders, (B) the aggregate
principal amount of all Dollar Loans made by all Lenders, (C) the Equivalent
Amount at any time of the aggregate principal amount of all Foreign Currency
Loans made by all Lenders and (D) the aggregate principal amount of all
Competitive Loans made by all Lenders, shall not exceed the combined
Commitments in effect at any time.


 


(c)                                  Expiration
Date.  Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the expiration date
requested in the LC Request and (ii) the date that is five Business Days
prior to the Maturity Date.


 


40

















 


(d)                                 Participations.  By the issuance or incorporation of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) pursuant to
Section 2.11(b) and without any further action on the part of the Issuing Bank
or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender
hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such Lender’s Pro Rata Share of the aggregate amount available to be
drawn under such Letter of Credit.  In
consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, in Dollars or in the applicable Foreign
Currency, as the case may be, such Lender’s Pro Rata Share of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Company on the
date due as provided in paragraph (e) and (f) of this Section, or of any
reimbursement payment required to be refunded to the Company for any
reason.  Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever (other than a withdrawal of such Letter
of Credit from this Agreement pursuant to Section 2.11(m)), including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.


 


(e)                                  Reimbursement
of Dollar Letters of Credit.  If the Issuing
Bank shall make any LC Disbursement in respect of a Dollar Letter of Credit
issued for the account of the Company or any of its Subsidiaries, the Company
shall reimburse such LC Disbursement by paying to the Administrative Agent an
amount in Dollars equal to such LC Disbursement not later than the LC Requisite
Time; provided that, if such LC Disbursement is not less than $5,000,000, the
Company may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.01 and 2.02 that such payment be financed
with a Dollar LIBOR Loan or Base Rate Loan in an equivalent amount and, to the
extent so financed, the Company’s obligation to make such payment shall be
discharged and replaced by the resulting Dollar LIBOR Loan or Base Rate Loan.


 


(f)                                    Reimbursement
of Foreign Currency Letters of Credit.  If the Issuing
Bank shall make any LC Disbursement in respect of a Foreign Currency Letter of
Credit, the Company shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount in the applicable Foreign Currency equal to such
LC Disbursement not later than the LC Requisite Time; provided that, if the
Equivalent Amount of such LC Disbursement is not less than $5,000,000, the
Company may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.01 and 2.02 that such payment be financed
with a Foreign Currency Loan to the Company or any eligible Foreign Borrower
(whether or not an account party under the Foreign Currency Letter of Credit),
bearing interest at Adjusted IBOR for such Foreign Currency in an equivalent
amount and, to the extent so financed, the Company’s obligation to make such
payment shall be discharged and replaced by the resulting Foreign Currency
Loan.


 


41

















 


(g)                                 Payment by
Lenders. If
the Company fails to make payment as provided in paragraph (e) and (f) of this
Section when due, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Company in respect
thereof and such Lender’s Pro Rata Share thereof.  Promptly following receipt of such notice, each Lender shall pay
to the Administrative Agent in Dollars or in the applicable Foreign Currency,
as the case may be, its Pro Rata Share of the payment then due from the
Company, in the same manner as provided in Section 2.09 with respect to
Loans made by such Lender (and the terms and conditions of Section 2.09
shall apply in the same manner to all the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Lenders. 
Promptly following receipt by the Administrative Agent of any payment
from the Company pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse the Issuing Bank, then to
such Lenders and the Issuing Bank as their interests may appear.  Any payment made by a Lender pursuant to
this paragraph to reimburse the Issuing Bank for any LC Disbursement (other
than the funding of Dollar LIBOR Loans or Base Rate Loans as contemplated in
paragraph (e) above or the funding of Foreign Currency Loans as contemplated in
paragraph (f) above) shall not constitute a Loan and shall not relieve the
Company of its obligation to reimburse such LC Disbursement.


 


(h)                                 Obligations
Absolute.  The Company’s obligation to reimburse LC
Disbursements as provided in paragraph (e) and (f) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision therein, (ii)
any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might,
but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Company’s obligations
hereunder.  Neither the Administrative
Agent, the Lenders nor the Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in connection with
the issuance, incorporation, transfer or withdrawal of any Letter of Credit or
any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Company to the
extent of any direct damages (as


 


42

















 


opposed to consequential
damages, claims in respect of which are hereby waived by the Company to the
extent permitted by applicable law) suffered by the Company that are caused by
the Issuing Bank’s failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof.  The parties hereto expressly
agree that, in the absence of gross negligence or willful misconduct on the
part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination.  In furtherance of
the foregoing and without limiting the generality thereof, 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 Bank
may, in its sole 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.


 


(i)                                     Disbursement
Procedures.  The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit.  The
Issuing Bank shall promptly notify the Administrative Agent and the Company by
telephone (confirmed by telecopy) of such demand for payment and whether the
Issuing Bank has made or will make an LC Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the
Company of its obligation to reimburse the Issuing Bank and the Lenders with
respect to any such LC Disbursement.


 


(j)                                     Interim
Interest.  If the Issuing Bank shall make any LC
Disbursement, then, unless the Company shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Company reimburses such LC
Disbursement, (i) in the case of a LC Disbursement with respect to a Dollar
Letter of Credit, at the rate per annum then applicable to Base Rate Loans and
(ii) in the case of a LC Disbursement with respect to a Foreign Currency Letter
of Credit, at the rate per annum then applicable to Foreign Currency Loans in
the applicable Foreign Currency with an Interest Period of one month (with the
first such Interest Period beginning on the date such LC Disbursement was
made); provided that, in each case (i) and (ii), if the Company fails to
reimburse such LC Disbursement on the Business Day after such reimbursement is
due pursuant to paragraph (e) and (f) of this Section, then
Section 2.06(c) shall apply. 
Interest accrued pursuant to this paragraph shall be for the account of
the Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to paragraph (g) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.


 


(k)                                  Currencies.  Amounts due under this Agreement in respect of any Letter of Credit
shall be deemed paid for the purposes of this Agreement only, in the case


 


43

















 


of Dollar Letters of Credit, to the extent paid in Dollars or, in the case
of Foreign Currency Letters of Credit, to the extent paid in the applicable
Foreign Currency, except to the extent expressly provided otherwise in this
Agreement.  If the Administrative Agent
receives any payment in respect of any Letter of Credit in any currency other
than the currency of such Letter of Credit, (including upon enforcement of or
collection of a judgment), the Administrative Agent may in its sole discretion
return such payment to the payor or convert such payment to the currency of such
Letter of Credit and apply the net proceeds to payment of amounts due in
respect of such Letter of Credit in accordance with this Agreement, provided that (i) amounts due in respect
of such Letter of Credit shall be deemed to have been paid only to the extent
of the net proceeds, if any, so applied by the Administrative Agent and (ii)
the Administrative Agent shall have no liability to any Credit Party, Lender or
any other Person arising out of or relating to such conversion of funds or the
exchange rate utilized in connection therewith, in each case except to the
extent of the Administrative Agent’s own gross negligence or willful
misconduct.


 


(l)                                     Replacement
of the Issuing Bank.  The Issuing Bank may be replaced at any time
by written agreement among the Company, the Administrative Agent, the replaced
Issuing Bank and the successor Issuing Bank. 
The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Bank.  At the
time any such replacement shall become effective, the Company shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.07(c).  From and after
the effective date of any such replacement, (i) the successor Issuing Bank
shall have all the rights and obligations of the Issuing Bank under this
Agreement with respect to Letters of Credit to be issued or incorporated
thereafter and (ii) references herein to the term “Issuing Bank” shall be
deemed to refer to such successor or to any previous Issuing Bank, or to such
successor and all previous Issuing Banks, as the context shall require.  After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.


 


(m)                               Withdrawal of Outstanding Letters of Credit from
Agreement.  The Company may,
with the consent of the Issuing Bank issuing such Letter of Credit, which
consent may be given or withheld in its sole discretion, elect to have any
undrawn Letter of Credit issued hereunder no longer deemed to be a Letter of
Credit outstanding hereunder.  The
Company may make such election by delivering to the Administrative Agent a
Notice of Letter of Credit Withdrawal, signed by the Company and the Issuing
Bank, in the form attached as Exhibit F, whereupon such letter of credit shall
cease to be Letter of Credit for all purposes hereof.


 


(n)                                 Collateralization of LC Overage. If for
any reason the LC Exposure exceeds $150,000,000, then upon request of the
Requisite Lenders, the Company shall deposit in an account with the
Administrative Agent, in the name of the


 


44

















 


Administrative Agent and for the benefit of the Lenders, an amount in
cash in Dollars equal to the LC Overage as of the date of such request, which
amount shall be held by the Administrative Agent as collateral for the performance
by the Company of its reimbursement obligations pursuant to Sections 2.11(e)
and (f). The Administrative Agent (i) may invest the balance in such account in
such short-term instruments in the manner and to the extent the Administrative
Agent deems consistent with the use of such funds as collateral for the
performance of the Company’s obligations, (ii) shall apply the balance in such
account to pay any reimbursement obligations that arise pursuant to Section
2.11(e) and (f) from time to time (with any reimbursement obligation payable in
a Foreign Currency satisfied by the conversion of funds in such account in such
manner at such an exchange rate as determined by the Administrative Agent) and
(iii) upon request of the Company from time to time, shall pay to the Company
such amount as the Administrative Agent determines to be the excess of the
balance in such account over the LC Overage. All investment and reinvestment of
funds deposited with the Administrative Agent pursuant to this Section 2.11(n)
shall be made at the Company’s risk and expense.  Interest or profits, if any, on such investments shall accumulate
in such account. If the maturity of the Loans has been accelerated (but subject
to the consent of Lenders with LC Exposure representing greater than 51% of the
total LC Exposure), the balance held by the Administrative Agent may be applied
to satisfy other obligations of the Company under this Agreement.


 


ARTICLE III


 


TAXES, YIELD PROTECTION AND ILLEGALITY


 


Section 3.01. 
Taxes.  Each payment of any amount payable by any
Borrower under this Agreement or any other Loan Document shall be made free and
clear of, and without reduction by reason of, any Applicable Taxes.  To the extent that any Borrower is obligated
by any Requirement of Law to make any deduction or withholding on account of
Applicable Taxes from any amount payable to any Lender under this Agreement,
such Borrower shall (i) make such deduction or withholding and pay the
same to the relevant Governmental Authority and (ii) pay such additional
amount to that Lender as is necessary to result in that Lender’s receiving a
net after-Applicable Tax amount equal to the amount to which that Lender would
have been entitled under this Agreement absent such deduction or withholding.  If a Lender shall become aware that receipt
of such a payment resulted in an excess payment or credit to that Lender on
account of such Applicable Taxes, that Lender shall promptly refund such excess
to such Borrower.  In addition, if any
Governmental Authority imposes any penalties, interest or other liabilities on
any Lender by reason of any Borrower failing to deduct or withhold sufficient
amounts on account of Applicable Taxes, or otherwise, such Borrower shall
indemnify such Lender against such penalties, interest or other liabilities; provided,  however, that such Borrower
shall not be obligated to indemnify any Lender for such amounts to the extent
arising from such Lender’s failure to act in good faith in promptly notifying
such Borrower thereof within 45 days from the date on which such Lender


 


45

















 


became aware of such penalties, interest or other liabilities.  Payment by any Borrower under this Section
shall be made within 30 days from the date any Lender makes written demand
for indemnification hereunder, which demand shall set forth in reasonable
detail the calculation of the amount being requested from such Borrower.  If a Lender shall become aware that it is
entitled to receive a refund or credit from a relevant Governmental Authority
directly attributable to Applicable Taxes as to which it has been indemnified
by any Borrower pursuant to this Section, it shall promptly notify such
Borrower of the availability of such refund or credit and shall, within 30 days
after receipt of a request by such Borrower (whether as a result of
notification that it has made to such Borrower or otherwise), make a claim to
such Governmental Authority for such refund or credit at such Borrower’s
expense so long as making such a claim is not inconsistent with such Lender’s
internal policies and is not disadvantageous to such Lender.


 


Section 3.02. 
Illegality.


 


(a)                                  If
any Lender shall determine that the introduction of any Requirement of Law
after the date hereof, or any change in any Requirement of Law or in the
interpretation or administration thereof after the date hereof, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
after the date hereof that it is unlawful, for such Lender or its Lending
Office to make IBOR Loans, then, on notice thereof by such Lender to the
Company (with a copy to the Administrative Agent), the obligation of such
Lender to make IBOR Loans shall be suspended until such Lender shall have
notified the Company (with a copy to the Administrative Agent) that the
circumstances giving rise to such determination no longer exist; provided, that, if the designation of an
alternative branch or lending office of the Lender will permit the Lender to
make or maintain such IBOR Loans, the Lender will designate such alternative
branch or lending office, subject to its determination that such designation is
not disadvantageous to such Lender.


 


(b)                                 If
any Lender shall determine that it is unlawful to maintain any IBOR Loan, the
applicable Borrower shall prepay in full all IBOR Loans then outstanding,
together with interest accrued thereon, either on the last day of the Interest
Period thereof if such Lender may lawfully continue to maintain such IBOR Loans
to such day, or immediately, if the Lender may not lawfully continue to
maintain such IBOR Loans, together with any amounts required to be paid in
connection therewith pursuant to Section 3.05.


 


Section 3.03. 
Increased Costs and Reduction of
Return.  If any Lender shall
determine that, due to either (i) the introduction of or any change (other
than any change by way of imposition of or increase in reserve requirements
included in the calculation of Adjusted IBOR) in or in the interpretation of
any law or regulation or (ii) the compliance with any guideline or request
from any central bank or other Governmental Authority (whether or not having
the force of law, provided that if such


 


46

















 


guideline or request does not have the force of law, compliance
therewith is customary for banks regulated in a manner similar to such Lender),
after the date hereof, there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining any Loans, then the
Company shall be liable for, and shall from time to time, within 10 Business
Days after demand therefor by such Lender, pay to such Lender additional
amounts as are sufficient to compensate such Lender for such increased costs; provided, however, that, if the
designation of an alternative branch or lending office of the Lender will avoid
or reduce the amount of such increased costs, the Lender will designate such
alternative branch or lending office, subject to its determination that such
designation is not disadvantageous to such Lender.


 


Section 3.04. 
Capital Adequacy.  If any Lender shall determine that
(a) the introduction after the date hereof of any Capital Adequacy
Regulation, (b) any change after the date hereof in any Capital Adequacy
Regulation, (c) any change after the date hereof in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or (d) compliance by such Lender (or its Lending Office) or any
corporation controlling such Lender, with any Capital Adequacy Regulation;
affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and
(taking into consideration such Lender’s or such corporation’s policies with
respect to capital adequacy and such Lender’s desired return on capital)
determines that the amount of such capital is increased as a consequence of its
Commitments, Loans, credits or obligations under this Agreement, then, within
10 Business Days after demand of such Lender, the Company shall upon demand pay
to such Lender, from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender for such increase; provided, however, that, if the
designation of an alternative branch or lending office of the Lender will avoid
or reduce such increased amount the Lender will designate such alternative
branch or lending office, subject to its determination that such designation is
not disadvantageous to such Lender.


 


Section 3.05. 
Breakfunding Costs.  Each Borrower agrees to reimburse each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of: (a) the failure of such
Borrower to make any payment or prepayment of principal of any IBOR Loan
(including payments made after any acceleration thereof); (b) the failure
of such Borrower to Borrow, Continue or Convert an IBOR Loan after such
Borrower has given a Request for Extension of Credit, (c) if caused by a Credit
Party or as a result of any acceleration of the Loans by reason of a Default or
Event of Default, the prepayment of an IBOR Loan on a day which is not the last
day of the Interest Period with respect thereto, or (d) if caused by a Credit
Party or required by the Requisite Lenders pursuant to Section 2.02(d),
the Conversion of any Dollar LIBOR Loan to a Base Rate Loan or the replacement
of any Foreign Currency Loan with a Foreign Currency Loan with an Interest
Period of one  month; including any such
loss or expense arising from the


 


47

















 


liquidation or reemployment of funds obtained by it to maintain its
IBOR Loans hereunder or from fees payable to terminate the deposits from which
such funds were obtained.  Solely for
purposes of calculating amounts payable by any Borrower to a Lender under this
Section, each IBOR Loan (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded at Adjusted IBOR
used in determining Adjusted IBOR for such IBOR Loan by a matching deposit or
other borrowing in the relevant currency in the interbank deposit market for a
comparable amount and for a comparable period, whether or not such IBOR Loan is
in fact so funded.


 


Section 3.06. 
Inability to Determine Rates.


 


If the Requisite Lenders shall have advised the Agent
of the Requisite Lenders’ determination that for any reason adequate and
reasonable means do not exist for ascertaining Adjusted IBOR for any requested
Interest Period with respect to a proposed IBOR Loan or that Adjusted IBOR for
any requested Interest Period with respect to a proposed IBOR Loan does not
adequately and fairly reflect the cost to such Lender of funding such Loan, the
Administrative Agent will forthwith give notice of such determination to the
Company.  Thereafter, the obligation of
the Lenders to make or maintain IBOR Loans, as the case may be, hereunder shall
be suspended until the Requisite Lenders revoke such notice in writing to the
Company and the Administrative Agent; provided, however, that no outstanding
IBOR Loan shall be terminated prior to the expiration of the Interest Period
unless required by law.  Upon receipt of
such notice, any Borrower may revoke any Request for Extension of Credit then
submitted by it.  If the Company does
not revoke such notice, any Dollar Loans requested in such notice shall be
made, Converted or Continued as Base Rate Loans instead of Dollar LIBOR Loans.


 


Section 3.07. 
Matters Applicable to all Requests
for Compensation.


 


(a)                                  No
Borrower shall be required to compensate any Lender under Section 3.03 or 3.04
for amounts allocable to any period more than 30 days prior to the date
that such Lender initially notifies such Borrower that it intends to claim
compensation under such Sections; provided, however, that if such claim
relates to any cost or increase that has been retroactively imposed upon such
Lender, such Borrower shall be required to compensate such Lender for amounts
allocable to the period since the date such cost or increase was so imposed
upon such Lender, provided that such Lender notifies such Borrower that it
intends to claim such compensation within 60 days of such retroactive cost
or increase having been imposed.


 


(b)                                 The
Administrative Agent and any Lender shall provide reasonable detail to the
applicable Borrower regarding the manner in which the amount of any payment to
the Administrative Agent or that Lender under this Article III has been
determined, concurrently with demand for such payment.  The Administrative Agent’s or


 


48

















 


any Lender’s determination of any amount payable under this
Article III shall be conclusive in the absence of manifest error.


 


(c)                                  For
purposes of calculating amounts payable under this Article III any Loans
shall be deemed to have been funded at the underlying applicable interest rate
set forth in the definition thereof whether or not such Loans was, in fact, so
funded.


 


(d)                                 All
obligations of any Borrower under this Article III shall survive
termination of the Commitments and payment in full of all Loans.


 


(e)                                  Upon
(i) any Borrower becoming obligated for any taxes with respect to any
Lender pursuant to Section 3.01, (ii) any Lender making a claim for
compensation under Section 3.03 or Section 3.04, or (iii) any Lender
invoking Section 3.06, such Lender, upon not less than 10 Business Days’
Requisite Notice from the applicable Borrower (with a copy to the Administrative
Agent), shall execute and deliver a Notice of Assignment and Acceptance
covering that Lender’s Pro Rata Share in favor of such Eligible Assignee as
such Borrower may designate, subject to payment in full by such Eligible
Assignee of all principal, interest, compensation, fees and other amounts owing
to such Lender through the date of assignment, including without limitation all
amounts owing under this Article III. 
Upon the removal of any Lender, it shall be released from all
obligations and liabilities under any Loan Document.  An assignment pursuant to this Section shall be governed by the
provisions of Section 10.05 other than the Minimum Amount limitation therein
contained.  Alternatively, the Company
may, upon 10 Business Days’ notice to the Administrative Agent (who shall
notify each Lender) reduce the combined Commitments by an amount equal to that
Lender’s Pro Rata Share (and, for this purpose, no Minimum Amounts shall
apply), and in connection therewith, deliver to the Administrative Agent for
the account of such Lender, the amounts, described in the first sentence above
and release such Lender from its Pro Rata Share.


 


ARTICLE IV


 


CONDITIONS


 


Section 4.01. 
Conditions Precedent to Effective
Date.


 


(a)                                  The
effectiveness of this Agreement is subject to the condition that the
Administrative Agent shall have received on or before the Effective Date all of
the following, in form and substance reasonably satisfactory to J.P. Morgan
Securities Inc., JPMorgan Chase Bank, Salomon Smith Barney Inc. and all
Requisite Lenders:


 


(i)                                     Credit Agreement.  This Agreement executed by the Company, the
Administrative Agent, all Lenders and the Issuing Bank;


 


49

















 


(ii)                                  Guaranty. 
The Guaranty executed by the Company and the Administrative Agent;


 


(iii)                               Notes. 
If requested by a Lender, Notes executed by the Company in favor of such
Lender;


 


(iv)                              Resolutions; Incumbency of the Company.  (A) Copies of the resolutions of the board
of directors of the Company approving and authorizing the execution, delivery
and performance by the Company of the Agreement and the other Loan Documents to
be delivered by the Company hereunder, and authorizing the borrowing of the
Loans, certified as of the Effective Date by the Secretary or an Assistant Secretary
of the Company and (B) a certificate of the Secretary or Assistant
Secretary of the Company (x) certifying the names and true signatures of
the officers of the Company authorized to execute, deliver and perform the Loan
Documents to be delivered by the Company hereunder, and (y) designating the
officers to be deemed Responsible Officers under this Agreement, and certifying
the names and true signature of such Responsible Officers;


 


(v)                                 Articles of Incorporation; By-Laws and Good Standing
of the Company.  Each of the
following documents: (A) the articles or certificate of incorporation of
the Company as in effect on the Effective Date, certified by the Secretary of
State of the state of incorporation of the Company as of a recent date, and the
bylaws of the Company as in effect on the Effective Date, certified by the
Secretary or Assistant Secretary of the Company as of the Effective Date; and
(B) a good standing certificate for the Company from the Secretary of
State of Delaware as of a recent date;


 


(vi)                              Opinion of Counsel.  An opinion of counsel for the Company and
addressed to the Administrative Agent and the Lenders dated as of the Effective
Date substantially in the form of Exhibit H;


 


(vii)                           Officer’s Certificate.  A certificate of a Responsible Officer dated
the Effective Date certifying that (A) the representations and warranties
contained in Article V are true and correct in all material respects,
(B) no Default or Event of Default has occurred and is continuing, and
(C) there has occurred since January 31, 2002, no event or
circumstance that could reasonably be expected to result in a Material Adverse
Effect;


 


(viii)                        Other Documents.  Such other approvals, opinions or documents as J.P. Morgan
Securities Inc., JPMorgan Chase Bank, 
Salomon Smith Barney Inc. and the Lenders may reasonably request by
notice to the Company prior to the Effective Date; and


 


(ix)                                Payment of Attorney’s Costs.  All Attorney Costs of the Administrative
Agent in connection with the preparation of the Loan Documents


 


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payable pursuant to Section 10.04, and invoiced to the
Company prior to the initial Extension of Credit under this Agreement, shall
have been paid.


 


Section 4.02. 
Any Extensions of Credit.  The obligation of each Lender to make any
Extension of Credit (other than a Foreign Currency Loan to a Foreign Borrower)
and of the Issuing Bank to issue any Letter of Credit, are subject to the
satisfaction of the following conditions precedent on the relevant Credit Date:


 


(a)                                  Request for Extension of Credit.  The Administrative Agent shall have timely
received a duly completed (i) Request for Extension of Credit by Requisite
Notice by the Requisite Time or (ii) LC Request by Requisite Notice by the LC
Requisite Time;


 


(b)                                 Continuation of Representations and Warranties.  The representations and warranties made by
the Company contained in Article V shall be true and correct in all
material respects on and as of such Credit Date with the same effect as if made
on and as of such date, except where such representations and warranties
expressly relate to an earlier date;


 


(c)                                  No Existing Default.  No Default or Event of Default shall exist
or shall result from such Extension of Credit or issuance of such Letter of
Credit.


 


Each Request for
Extension of Credit or LC Request shall constitute a representation and
warranty by the Company, as of the date of each such request and as of the
Credit Date that the conditions in this Section 4.02 are satisfied.


 


Section 4.03. 
Foreign Currency Loans.


 


(a)                                  The
effectiveness of any Foreign Borrower Joinder Agreement is subject to the
condition that the Administrative Agent shall have received on or prior to the
date of effectiveness thereof (the “Joinder
Effective Date”) all of the following, in form and substance
reasonably satisfactory to the Administrative Agent:


 


(i)                                     Foreign Borrower Joinder Agreement.  A Foreign Borrower Joinder Agreement
executed by the Company and the applicable Foreign Borrower;


 


(ii)                                  Notes. 
If requested by a Lender, Notes executed by such Foreign Borrower in
favor of such Lender.


 


(iii)                               Resolutions, Incumbency of Foreign Borrower.  (A)  Copies of the resolutions of the board of directors of such
Foreign Borrower approving and authorizing the execution, delivery and
performance by such Foreign Borrower of the Foreign Borrower Joinder Agreement
and other Loan Documents to be delivered by such Foreign Borrower hereunder,
and authorizing the borrowing of


 


51

















 


the Foreign Currency Loans, certified as of the date
of the borrowing of the initial Foreign Currency Loan by the Secretary or an
Assistant Secretary of such Foreign Borrower and (B) a certificate of the
Secretary or Assistant Secretary of such Foreign Borrower (x) certifying the
names and true signatures of the officers of such Foreign Borrower authorized
to execute, deliver and perform the Foreign Borrower Joinder Agreement and
other Loan Documents to be delivered by the Foreign Borrower hereunder, and (y)
designating the officers to be deemed Responsible Officers under this
Agreement, and certifying the names and true signatures of such Responsible
Officers.


 


(iv)                              Articles of Incorporation; By-Laws and Good Standing
of Foreign Borrower.  Each of
the following documents: (A) the articles or certificate of incorporation
of such Foreign Borrower as in effect on the Joinder Effective Date, certified
by an appropriate government agency or similar body of the jurisdiction of
incorporation of such Foreign Borrower as of a recent date, and the bylaws of
such Foreign Borrower as in effect on the Joinder Effective Date, certified by
the Secretary or Assistant Secretary of such Foreign Borrower as of the Joinder
Effective Date; and (B) a good standing certificate for such Foreign Borrower
as of a recent date in form and substance satisfactory to the Administrative
Agent;


 


(v)                                 Opinion of Counsel.  An opinion of counsel for such Foreign
Borrower in form and substance acceptable to the Administrative Agent and
addressed to the Administrative Agent and the Lenders;


 


(vi)                              Other Documents.  Such other approvals, opinions or documents as the Administrative
Agent may reasonably request by notice to such Foreign Borrower prior to the
Joinder Effective Date;


 


(vii)                           Payment of Attorney’s Costs.  All Attorney Costs of the Administrative
Agent in connection with such Foreign Loan payable pursuant to Section 10.04,
and invoiced to such Foreign Borrower prior to the date of initial borrowing of
the Foreign Currency Loan under this Agreement, shall have been paid.


 


(b)                                 The
obligation of each Lender to make any Foreign Currency Loan to a Foreign
Borrower is subject to effectiveness of a Foreign Borrower Joinder Agreement in
respect of the applicable Foreign Borrower and the satisfaction of the
following conditions precedent on the relevant Credit Date:


 


(i)                                     Request for Extension of Credit.  The Administrative Agent shall have timely
received a duly completed Request for Extension of Credit by the applicable
Foreign Borrower for such Foreign Currency Loan by Requisite Notice by the
Requisite Time, signed by the Company in acknowledgement of its guaranty of
such Foreign Currency Loan pursuant to this Agreement;


 


52

















 


(ii)                                  Continuation of Representations and Warranties.  The representations and warranties made by
the Credit Parties contained in Article V shall be true and correct in all
material respects on and as of such Credit Date with the same effect as if made
on and as of such date, except where such representations and warranties
expressly relate to an earlier date;


 


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


 


Each Request for
Extension of Credit for a Foreign Currency Loan to a Foreign Borrower shall
constitute a representation and warranty by each Credit Party, as of the date
of each such Request and as of the applicable Credit Date that the conditions
in this Section 4.03 are satisfied.


 


ARTICLE V


 


REPRESENTATIONS AND WARRANTIES


 


The Company and, solely to the extent such
representation and warranty relates to such Foreign Borrower or its
Subsidiaries, each Foreign Borrower represents and warrants to the
Administrative Agent and the Lenders that:


 


Section 5.01. 
Corporate Existence and Power.  Each Credit Party and each of its corporate
Subsidiaries: (a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) has the corporate power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and execute, deliver, and perform its obligations, if any, under, the Loan
Documents; (c) is duly qualified as a foreign corporation, licensed and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in good standing
would not have a Material Adverse Effect; and (d) is in compliance with
every Requirement of Law except where such noncompliance would not have a
Material Adverse Effect.  Each Foreign
Borrower is, directly or indirectly through one or more intermediaries,
wholly-owned by the Company; and no Foreign Borrower is organized under the
laws of any State of the United States of America or in the District of
Columbia.


 


Section 5.02. 
Corporate Authorization; No
Contravention.  The
execution, delivery and performance by each Credit Party of each Loan Document
to which it is a party, have been duly authorized by all necessary corporate
action, and do not and will not: (a) contravene the terms of any of its
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document evidencing
any material Contractual Obligation to which it is a


 


53

















 


party or any order, injunction, writ or decree of any Governmental
Authority to which it or its Property is subject; or (c) violate any
Requirement of Law applicable to it.


 


Section 5.03. 
Governmental Authorization.  No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by any Credit Party of any Loan Document to
which it is a party, other than routine filings required to be made by it in
the Ordinary Course of Business after the date hereof.


 


Section 5.04. 
Binding Effect.  Each Loan Document to which any Credit Party
is a party constitutes the legal, valid and binding obligations of each such
Credit Party, enforceable against it in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
or similar laws affecting the enforcement of creditors’ rights generally or by
equitable principles relating to enforceability.


 


Section 5.05. 
Litigation.  Except as disclosed on Schedule 5.05, there
are no actions, suits, investigations, proceedings, claims or disputes pending
or threatened, at law, in equity, in arbitration or before any Governmental
Authority, against the Company, its Subsidiaries or any of their respective
Properties which: (a) purport to affect or pertain to this Agreement, or
any other Loan Document, or any of the Transactions; or (b) have a
reasonable possibility of an adverse decision which would have a Material
Adverse Effect.  No injunction, writ,
temporary restraining order or any order of any nature has been issued by any
court or other Governmental Authority against any Credit Party purporting to
enjoin or restrain the execution, delivery and performance of this Agreement or
any other Loan Document, or directing that the Transactions not be consummated
as herein or therein provided.


 


Section 5.06. 
No Event of Default.


 


(a)                                  No
Event of Default exists or would result from the incurring of any Obligations
by any Credit Party.


 


(b)                                 Except
as disclosed on Schedule 5.06, neither the Company nor any of its Subsidiaries
is in default under or with respect to any Contractual Obligation in any
respect which, individually or together with all such defaults, would
reasonably be expected to have a Material Adverse Effect.


 


Section 5.07. 
ERISA Compliance.


 


(a)                                  Schedule
5.07 lists all Plans maintained or sponsored by the Company or to which it is
obligated to contribute, and separately identifies Plans intended to be
Qualified Plans and Multiemployer Plans. 
Each Plan other than a Multiemployer Plan is in compliance, and, with
respect to each Multiemployer Plan, the


 


54

















 


 


Company has no
knowledge that such Multiemployer Plan is not in compliance, in all material
respects with the applicable provisions of ERISA, the Code and other Federal or
applicable state law that is not preempted by ERISA.  Each Qualified Plan has been determined by the Internal Revenue
Service (“IRS”) to qualify under
Section 401 of the Code, and the trusts created thereunder have been determined
to be exempt from tax under the provisions of Section 501 of the Code, and to
the best knowledge of the Company nothing has occurred which would cause the
loss of such qualification or tax-exempt status.


 


(b)           There
is no outstanding liability (excluding PBGC premiums due but not delinquent
under Section 4001 of ERISA) under Title IV of ERISA with respect to any Plan
maintained or sponsored by the Company or any ERISA Affiliate (as to which the
Company is or may reasonably be expected to be liable), nor with respect to any
Plan to which the Company or any ERISA Affiliate (wherein the Company is or may
be liable) contributes or is obligated to contribute, which would reasonably be
expected to have a Material Adverse Effect. 
None of the Qualified Plans has Unfunded Pension Liabilities as to which
the Company is or may be liable, and which would reasonably be expected to have
a Material Adverse Effect.


 


(c)           No
ERISA Event has occurred or is reasonably expected to occur with respect to any
Plan maintained or sponsored by the Company or to which the Company is
obligated to contribute and as to which the Company is or may reasonably be
expected to be liable, and which would reasonably be expected to have a
Material Adverse Effect.  There are no
pending or, to the best knowledge of the Company, threatened claims, actions or
lawsuits, other than routine claims for benefits in the usual and ordinary
course, asserted or instituted against (i) any Plan maintained or
sponsored by the Company or its assets, (ii) any member of the Controlled
Group with respect to any Qualified Plan of the Company, or (iii) any
fiduciary with respect to any Plan for which the Company may be directly or
indirectly liable, through indemnification obligations or otherwise which in
each case would reasonably be expected to have a Material Adverse Effect.  The Company has not transferred any Unfunded
Pension Liability outside of the Controlled Group or otherwise engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA which has
a reasonable likelihood of having a Material Adverse Effect.


 


Section 5.08.  Regulations
T, U and X.  Neither any of
the Letters of Credit outstanding hereunder nor the proceeds of any Loan
hereunder will be used, in whole or in part, to purchase or carry, or to extend
credit to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulations T, U and X.


 


Section 5.09.  Taxes.  Each Credit Party and its Subsidiaries have
filed all Federal and other material tax returns and reports required to be
filed, and have paid all Federal and other taxes, assessments, fees and other
governmental charges levied or imposed upon them or their Properties, income or
assets otherwise due and payable,


 


55

















 


except those which
are being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP.


 


Section 5.10.  Financial
Condition.


 


(a)           The
audited consolidated financial statements of financial condition of the Company
and its Subsidiaries, and the related consolidated statements of operations,
shareholders’ equity and cash flows (i) as of and for the Fiscal Year
ended January 31, 2002, and (ii) as of and for the fiscal quarter and the
portion of the fiscal year ended by April 30, 2002:  (A) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (B) are complete and accurate in all material respects
and fairly present, in all material respects, the financial condition of the
Company and its consolidated subsidiaries as of the date thereof and results of
operations for the period covered thereby.


 


(b)           Since
January 31, 2002, there has been no Material Adverse Effect.


 


(c)           Each
Foreign Borrower is “solvent” within the meaning given such term or similar
terms under laws applicable to such Person, if any, prohibiting such Person
from borrowing the Loan from the Lenders requested by or outstanding to such
Person or prohibiting the Lenders from making such Loan to such Person (or any
such laws that limit or restrict the Lenders’ rights to enforce their rights
and remedies under both this Agreement and the Guaranty) on account of such Person’s
financial condition at the time such Loan is made.


 


Section 5.11.  Environmental
Matters.  To the knowledge of
the Responsible Officers of the Company, the on-going operations of the Company
and each of its Subsidiaries comply in all respects with all Environmental
Laws, except such non-compliance which would not reasonably be likely to have a
Material Adverse Effect.  To the
knowledge of the Responsible Officers of the Company, the Company and each of
its Subsidiaries have obtained all licenses, permits, authorizations and
registrations required under any Environmental Law (“Environmental Permits”)
necessary for its ordinary course operations, all such Environmental Permits
are in good standing, and the Company and each of its Subsidiaries are in compliance
with all material terms and conditions of such Environmental Permits, except
where the failure to obtain or maintain such Environmental Permits or such
noncompliance would not be reasonably likely to have a Material Adverse Effect.


 


Section 5.12.  Subsidiaries.  As of the Effective Date, the Company has no
Subsidiaries other than those specifically disclosed on Schedule 5.12.


 


Section 5.13.  Insurance.  The material real Properties of the Company
and its Subsidiaries are insured with financially sound and reputable insurance
companies (except to the extent self-insurance is permitted pursuant to Section
6.06), in such


 


56

















 


amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar Properties in localities where
the Company or such Subsidiary operates.


 


Section 5.14.  Full
Disclosure.  The Company has made
available to the Lenders all material agreements, instruments and corporate or
other restrictions to which it or any of its Subsidiaries is subject and all
reports or other filings made by the Company under the Exchange Act or
Securities Act, and disclosed, through the reports and other filings made by
the Company under the Exchange Act or Securities Act or otherwise, all other
matters known to it that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.  Neither the Information Memorandum nor any of the other reports,
financial statements, certificates or other information certified as being true
and correct by or on behalf of the Company to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so certified)
contains any untrue statement of a material fact or omits to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Company represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.


 


Section 5.15.  Public
Utility Holding Company Act; Investment Company Act.  Neither the Company nor any of its
Subsidiaries are a “holding company”, or a “subsidiary company” of a “holding
company”, within the meaning of the Public Utility Holding Company Act of 1935,
as amended.  The Company is not and is
not required to be registered as an “investment company” under the Investment
Company Act of 1940.


 


Section 5.16.  Title to
Properties.


 


(a)           The
Company and each of its Subsidiaries has good and marketable title to, or valid
leasehold interests in, all real Property necessary or used in the ordinary
conduct of its business, except for Liens permitted by Section 7.01 and
for such defects in title as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


(b)           The Company and each of its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by the Company and its Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.


 


57

















 


ARTICLE VI


 


AFFIRMATIVE COVENANTS


 


So long as any principal of, or interest on, any Loan
or fee due hereunder remains unpaid, or any portion of the Commitments remains
in force:


 


Section 6.01.  Financial
Statements.  The Company
shall deliver to the Administrative Agent, with sufficient copies for each
Lender or via electronic image:


 


(a)           as
soon as available, but not later than 120 days after the end of each Fiscal
Year, a copy of the audited consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year and the related statements of income
and cash flows for such Fiscal Year, setting forth in each case in comparative
form the figures for the previous year, and accompanied by the opinion of
Deloitte & Touche LLP or another nationally-recognized independent public
accounting firm which report shall state that such consolidated financial
statements present fairly, in all material respects, the financial position of
the Company and its Subsidiaries for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years.  Such opinion shall not be qualified or limited because of a
restricted or limited examination by such accountant of any material portion of
the Company’s or any Subsidiary’s records; and


 


(b)           as
soon as available, but not later than 60 days after the end of each of the
first three Fiscal Quarters of each year, a copy of the unaudited consolidated
balance sheet of the Company and its Subsidiaries as of the end of such quarter
and the related consolidated statements of income and cash flows for the period
commencing on the first day and ending on the last day of such quarter, setting
forth the financial position and the results of operations of the Company and
its Subsidiaries in conformity with GAAP applied on a basis consistent with
prior years, subject to changes resulting from audit and normal year-end
adjustments.


 


Section 6.02.  Certificates;
Other Information.  The
Company shall deliver to the Administrative Agent, with sufficient copies for
each Lender or via electronic image:


 


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


 


(b)           promptly,
such additional business, financial, corporate affairs and other information in
form and detail satisfactory to the Agent and the Requisite Lenders as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.


 


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Section 6.03.  Notices.  Promptly upon a Responsible Officer of any
Credit Party becoming aware of the same, such Credit Party shall promptly
notify the Administrative Agent (who shall notify each Lender)


 


(a)           of
the occurrence of any Default or Event of Default;


 


(b)           of
any dispute, litigation, investigation, proceeding or suspension which may
exist at any time between such Credit Party or any of its Subsidiaries and any
Governmental Authority or any Person which would reasonably be expected to have
a Material Adverse Effect;


 


(c)           upon,
but in no event later than 10 days after, a Responsible Officer becoming aware
of (i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against the Company, any
of its Subsidiaries or any of their respective Properties pursuant to any
applicable Environmental Laws, and (ii) any other material Environmental
Claims, which in the case of clauses (i) and (ii) would reasonably be
expected to have a Material Adverse Effect;


 


(d)           upon,
but in no event later than 10 days after, any ERISA Event that would reasonably
be expected to have a Material Adverse Effect, together with (i) a copy of
any notice with respect to such ERISA Event that may be required to be filed
with the PBGC and (ii) any notice delivered by the PBGC to the Company or
any member or its Controlled Group with respect to such ERISA Event;


 


(e)           any
public announcement of any change in the Pricing Ratings; and


 


(f)            of
any material change in accounting policies or financial reporting practices by
the Company or any of its Subsidiaries and the specific effects of any such
change on the Company or any of its Subsidiaries unless any such changes are
required to be made by companies generally in response to rules of the Securities
and Exchange Commission, the Financial Accounting Standards Board (FASB) or any
other similar governmental agency or other organization and the effects of any
such change are disclosed by the Company in any reports or other filings made
under the Exchange Act.


 


Each notice pursuant to this Section shall be
accompanied by a written statement by a Responsible Officer of the Company
setting forth details of the occurrence referred to therein, and stating what
action (if any is required) the Company proposes to take with respect thereto.


 


Section 6.04.  Preservation
of Corporate Existence, Etc. 
Each Credit Party
shall, and shall cause its Significant Subsidiaries to, preserve and
maintain in full force and effect its corporate existence and good standing
under the laws of its state or jurisdiction of incorporation and preserve and
maintain in full force and effect all rights,


 


59

















 


privileges,
qualifications, permits, licenses and franchises necessary or desirable in the
normal conduct of its business the non-preservation of which would reasonably
be expected to have a Material Adverse Effect; provided that nothing herein
shall prevent to the extent not otherwise prohibited by the provisions of
Section 7.02 or 7.03, a consolidation or merger of the Company.


 


Section 6.05.  Maintenance
of Property.  Each Credit
Party shall, and shall cause each of its Significant Subsidiaries to, maintain
and preserve all its Property which is used or useful in its business in good
working order and condition, ordinary wear and tear excepted, in such Credit
Party’s reasonable judgment the non-maintenance or non-preservation of which
would reasonably be expected to have a Material Adverse Effect; provided
that nothing in this Section shall require the making of any repair or
replacement of or to any particular Property that would not be required in the
exercise of sound business judgment.


 


Section 6.06.  Insurance.  Each Credit Party shall, and shall cause
each of its Subsidiaries to, maintain with financially sound and reputable
independent insurers, insurance with respect to its Properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons;
including workers’ compensation insurance, public liability and Property and
casualty insurance; provided that such Credit Party or any of
its Subsidiaries may self-insure to the extent that it maintains adequate
reserves therefor and self-insurance is customary and prudent in its business
judgment.


 


Section 6.07.  Compliance
with Laws.  Each Credit Party
shall, and shall cause each of its Subsidiaries to, comply, in all material
respects with any Requirement of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal Fair Labor
Standards Act), except such Requirement of Law the non-compliance with which
would not be reasonably expected to have a Material Adverse Effect.


 


Section 6.08.  Inspection
of Property and Books and Records. 
Each Credit Party shall, and shall cause each of its Subsidiaries to,
maintain proper books of record and account, in which full, true and correct
entries shall be made of all financial transactions and matters involving the
assets and business of such Credit Party and such Subsidiaries.  Each Credit Party shall permit, and shall
cause each of its Subsidiaries to permit, representatives and independent
contractors of the Administrative Agent or any Lender to visit and inspect any
of their respective Properties, to examine their respective corporate,
financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, and independent public accountants (provided
that such Credit Party may, if it chooses, be present at any such discussions)
at such reasonable times during normal business hours and as often as may be
reasonably desired, upon


 


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reasonable advance
notice to such Credit Party; provided that the foregoing shall be
subject to compliance with applicable security regulations of any Governmental
Authority and shall not require the Company to permit inspection of any
Properties or financial or operating records to an extent that would require
such Credit Party or any of its Subsidiaries to reveal any of its trade
secrets, research data or proprietary information which its management in good
faith believes to be irrelevant to this Agreement.


 


Section 6.09.  Environmental
Laws.  Each Credit Party
shall, and shall cause each of its Subsidiaries to, conduct its operations and
keep and maintain its Properties in compliance with all Environmental Laws,
except for such non-compliance as would not reasonably be expected to have a
Material Adverse Effect.


 


Section 6.10.  Use of
Proceeds.  The Credit Parties shall use the proceeds for working
capital, capital expenditures and other general corporate purposes of the
applicable Borrower and its Subsidiaries not in contravention of any
Requirement of Law.


 


Section
6.11.  Regulatory
Approvals.  Each Credit Party
shall, and shall cause each of its subsidiaries to, maintain all material
licenses, permits, authorizations and regulatory approvals necessary to own and
operate facilities and to comply with all applicable laws and regulations,
except for such non-maintenance or non-compliance as would not be reasonably
expected to have a Material Adverse Effect.


 


Section 6.12.  Transactions
with Officers, Directors and Affiliates.


 


(a)           No
Credit Party shall, and each Credit Party shall cause each of its Subsidiaries
not to, engage in transactions with their respective officers and directors
other than on an arms-length basis.


 


(b)           Each
Credit Party shall, and shall cause each of its Subsidiaries to, exercise
reasonable business judgment in entering in transactions with their Affiliates.


 


ARTICLE VII


 


NEGATIVE COVENANTS


 


So long as any principal of, or interest on, any Loan
or fee due hereunder remains unpaid, or any portion of the Commitments remains
in force, the Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly:


 


Section 7.01.  Liens,
Negative Pledges.  Make,
create, incur, assume or suffer to exist any Lien of any nature upon or with
respect to any of their respective Properties, whether now owned or hereafter
acquired, except:


 


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(a)           Liens
securing Indebtedness and other obligations existing on the Effective Date,
and, in the case of Liens securing Indebtedness and other obligations in excess
of $1,000,000 set forth in Schedule 7.01;


 


(b)           Liens
consisting of judgment or judicial attachment liens, provided that the
enforcement of such Liens is effectively stayed and all such liens in the
aggregate at any time outstanding for the Company and its Subsidiaries do not
exceed $50,000,000;


 


(c)           Liens
securing obligations not exceeding $100,000,000 in the aggregate on the
assets of single purpose Subsidiaries;


 


(d)           Permitted
Liens;


 


(e)           Liens
in connection with Synthetic Leases permitted under Section 7.05;


 


(f)            (i) any Lien that replaces,
extends or renews any Lien securing any Indebtedness permitted hereunder,
provided such replacement, extension or renewal Lien shall not encumber any
additional Property; (ii) any Lien on Property previously subject to a
Synthetic Lease, provided (A) such Lien secures Indebtedness used to refinance
or replace such Synthetic Lease and (B) the aggregate principal amount
of such Indebtedness does not exceed the fair value attributable to the
Property subject to the Synthetic Lease at the time such Property is being
refinanced or replaced;
and


 


(g)           Liens
not otherwise permitted by the foregoing clauses of this Section provided
that the aggregate amount of Indebtedness or other obligations secured by such
other Liens permitted by this subsection (g) does not at any time exceed an
amount equal to 7.5% of the Company’s consolidated tangible assets, determined
as of the end of the immediately preceding fiscal quarter.


 


Section 7.02.  Dispositions.  Make any Disposition of its Property,
whether now owned or hereafter acquired, except for:


 


(a)           Permitted
Dispositions;


 


(b)           any
Disposition consisting of a merger or consolidation permitted pursuant to
Section 7.03; and


 


(c)           Dispositions
of assets not otherwise permitted hereunder which are made for fair market
value; provided, that assets so disposed in any fiscal year contributed no
more than 5% to the Company’s consolidated revenues in the prior fiscal year;
and provided further, that at the time of any such
Disposition, no Event of Default shall exist or shall result from such
Disposition.


 


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Section 7.03.  Mergers.  Merge or consolidate with or into any
Person, except:


 


(a)           any
Subsidiary may merge with the Company, provided that the Company shall be the
continuing or surviving corporation, or with any one or more Subsidiaries of
the Company;


 


(b)           any
Subsidiary of the Company may sell all or substantially all of its assets (upon
voluntary liquidation or otherwise), to the Company or a Subsidiary of the
Company; and


 


(c)           the
Company may merge with another corporation, provided that the Company shall be the
surviving corporation, and that after giving effect to such merger, no Default
or Event of Default shall then have occurred or exist.


 


Section 7.04.  Limitation
on Guaranty Obligations. 
Create, incur, assume, suffer to exist, or otherwise be liable with
respect to, any Guaranty Obligations, except for:


 


(a)           guaranties
of loans to employees for the purchase of capital stock of the Company not
exceeding $15,000,000 in aggregate principal amount outstanding at any time;


 


(b)           Guaranty
Obligations consisting of bid and performance bonds for the benefit of third
parties not exceeding $150,000,000 in aggregate principal amount at any time;


 


(c)           Ordinary
Course Guaranty Obligations; and


 


(d)           other
Guaranty Obligations not exceeding 7.5% of the Company’s consolidated tangible
assets.


 


The Guaranty Obligations
limited by this Section 7.04 shall not include claims for refunds or the
imposition of charges made by customers of the Company and its Subsidiaries based
on unsatisfactory work by the Company or any of its Subsidiaries in the
Ordinary Course of Business, except that such claims shall be included, and
shall be taken into account, with respect to the other covenants set forth in
this Article VII when recognized as liabilities on the Company’s balance
sheet in accordance with GAAP.


 


Section 7.05.  Synthetic
Leases.  Create, incur,
assume, suffer to exist, or otherwise be liable, directly or indirectly, with
respect to, any Synthetic Leases, except for Synthetic Leases related to
tangible Property having a value (determined at the time of each transaction)
not exceeding $250,000,000 in aggregate amount at any time.


 


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Section 7.06.  Compliance
with ERISA.  To the extent an
event or condition specified in this Section has a reasonable likelihood of
having a Material Adverse Effect, (a) terminate any Plan subject to
Title IV of ERISA, (b) permit to exist any ERISA Event,
(c) enter into any new Plan or modify any existing Plan so as to increase
its obligations thereunder except in the Ordinary Course of Business or
(d) permit the existence of Unfunded Pension Liabilities.


 


Section 7.07.  Interest Coverage Ratio.  The Company shall maintain an Interest Coverage Ratio of not less
than 3.5 to 1.0 for each period of four consecutive fiscal quarters, commencing
with the four fiscal quarters ended April 30, 2002.


 


Section 7.08.  Ratio of Consolidated Funded Debt to
EBITDA.  The Company shall maintain a ratio of
Consolidated Funded Debt to EBITDA of not more than 2.75 to 1.00 for each
period of four consecutive fiscal quarters, commencing with the four fiscal
quarters ended April 30, 2002.


 


Section 7.09.  Accounting
Changes.  Make any
significant change in accounting treatment or reporting practices, except as
required or permitted by GAAP, or change the Fiscal Year of the Company or of
any of its Significant Subsidiaries.


 


Section 7.10.  Change in
Nature of Business.  Make any
material change in the nature of the business of the Company and its
Subsidiaries, taken as a whole.


 


Section 7.11.  Hedging
Agreements.  Enter into any
Hedging Agreement, other than Hedging Agreements entered into to hedge or
mitigate risks to which the Company or any of its Subsidiaries is exposed in
the conduct of its business or management of its assets or liabilities.


 


ARTICLE VIII


 


EVENTS OF DEFAULT AND
REMEDIES UPON EVENT OF DEFAULT


 


Section 8.01.  Events of
Default.  The existence or
occurrence of any one or more of the following events, whatever the reason
therefor and under any circumstances whatsoever, shall constitute an Event of
Default:


 


(a)           Non-Payment.  Any Credit Party fails to pay, (i) within one day after the same
shall become due any amount of principal of any Loan, or (ii) within five
days after the same shall become due, any interest on any Loan, fee or any
other amount payable hereunder or pursuant to any other Loan Document; or


 


(b)           Representation or Warranty.  Any material representation or warranty by
any Credit Party made or deemed made herein, in any Loan Document, or which is
contained in any certificate, document or financial or other statement by any
Credit Party, any of its Subsidiaries, or their respective Responsible
Officers, furnished at


 


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any time under
this Agreement, or in or under any Loan Document, shall prove to have been
incorrect in any material respect on or as of the date made or deemed made; or


 


(c)           Specific Defaults.  Any Credit Party fails to perform or observe
any term, covenant or agreement contained in Section 6.04, or the Company
fails to perform or observe any term, covenant or agreement contained in
Section 7.03, 7.07 or 7.08; or


 


(d)           Other Defaults.  Any Credit Party fails to perform any other term, covenant or
agreement contained in any Loan Document not specifically mentioned in this
Section 8.01 and, such default shall continue unremedied for a period of 30
days after notice by the Administrative Agent thereof; or


 


(e)           Cross Default.  Any of the Company, its Subsidiaries or any other Credit Party
(i) fail to make any payment in respect of any Indebtedness (other than
non-recourse Indebtedness) owing to any Person (other than the Obligations
hereunder) when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) having an aggregate principal amount
(including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $35,000,000; or (ii) fail to perform or
observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness having an aggregate principal amount (including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$35,000,000, if the effect of such failure, event or condition is to cause, or
to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause such Indebtedness to be
declared to be due and payable prior to its stated maturity; or


 


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


 


(g)           Involuntary Proceedings.  (i) Any involuntary Insolvency
Proceeding is commenced or filed against any Credit Party or Significant
Subsidiary of the Company, or any writ, judgment, warrant of attachment,
execution or similar process, in each case relating to an Insolvency
Proceeding, is issued or levied against a substantial part of any Credit
Party’s or any such Significant Subsidiary’s Properties, and any such
proceeding or petition shall not be dismissed, or such writ, judgment, warrant
of attachment, execution or similar process shall not be released, vacated or
fully bonded within 60 days after commencement, filing or levy; (ii) any
Credit Party or any


 


65

















 


Significant
Subsidiary of the Company admits the material allegations of a petition against
it in any Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) any Credit
Party or any Significant Subsidiary of the Company acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee
in possession (or agent therefor), or other similar Person for itself or a
substantial portion of its Property or business; or


 


(h)           ERISA. 
Any of the following events or conditions occurs or exists which has a
reasonable likelihood of having a Material Adverse Effect: (i) the Company
or an ERISA Affiliate shall fail to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal
liability under a Multiemployer Plan; (ii) the Company or an ERISA
Affiliate shall fail to satisfy its contribution requirements under Section
412(c) (11) of the Code, whether or not it has sought a waiver under Section
412(d) of the Code; (iii) an ERISA Event; (iv) the IRS shall have
determined that a Plan that is intended to be qualified under Section 401(a) of
the Code is not qualified; or (v) the occurrence of any combination of
events listed in clauses (iii) through (iv) that involves a net
increase in aggregate Unfunded Pension Liabilities and other liabilities; or


 


(i)            Monetary Judgments.  One or more final (non-interlocutory)
judgments, orders or decrees shall be entered against any of the Company, any
of its Subsidiaries or any other Credit Party, involving in the aggregate a
liability (not fully covered by independent third-party insurance and for which
the relevant insurer has acknowledged liability) as to any single or related
series of transactions, incidents or conditions, of $35,000,000 or more, and
the same shall remain unsatisfied, unvacated and unstayed pending appeal for a
period of 30 days after the entry thereof or such later time as may be provided
for the filing of an appeal; or


 


(j)            Change in Control.  (i) Any Person (other than a Plan or
Plans) or two or more Persons (other than a Plan or Plans) acting in concert
shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities and Exchange Act of
1934, as amended), directly or indirectly, of securities of the Company (or other
securities convertible into such securities) representing 20% or more of the
combined voting power of all securities of the Company entitled to vote in the
election of directors, other than securities having such power only by reason
of the happening of a contingency; (ii) individuals who at the beginning
of any two year period constituted the Company’s Board of Directors cease for
any reason to constitute a majority of directors then in office; or (iii) any
Foreign Borrower ceases to be a Subsidiary of the Company at any time when
Foreign Currency Loans to such Foreign Borrower are outstanding.


 


Section 8.02.  Remedies
Upon Event of Default. 
Without limiting any other rights or remedies of the Administrative
Agent or the Lenders provided for


 


66

















 


elsewhere in this
Agreement, or the other Loan Documents, or by any Requirement of Law, or in
equity, or otherwise:


 


(a)           Upon
the occurrence, and during the continuance, of any Event of Default other than
an Event of Default described in Section 8.01(f) or 8.01(g) in respect of any
Credit Party,


 


(i)            the Requisite Lenders may request
the Administrative Agent to, and the Administrative Agent thereupon shall,
terminate the Commitments and/or declare all or any part of the unpaid
principal of all Loans, all interest accrued and unpaid thereon, all
obligations relating to the LC Exposure at such time and all other amounts
payable under the Loan Documents to be forthwith due and payable, whereupon the
same shall become and be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind, all of
which are expressly waived by such Credit Party; and


 


(ii)           on the Business Day that the Company receives notice from
the Administra­tive Agent or the Requisite Lenders (or, if the maturity of the
Loans has been accelerated pursuant to clause (i) above, Lenders with LC
Exposure representing 51% or more of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this clause (ii), the Company shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash
equal to the LC Exposure as of such date, which amount shall be applied as provided
in Section 8.02(f).


 


(b)           Upon
the occurrence of any Event of Default described in Section 8.01(f) or
8.01(g) in respect of any Credit Party,


 


(i)            the Commitments and all other
obligations of the Administrative Agent or the Lenders and all rights of any
Credit Party under the Loan Documents shall terminate without notice to or
demand upon such Credit Party, which are expressly waived by such Credit Party
and the unpaid principal of all Loans, all interest accrued and unpaid thereon,
all obligations relating to the LC Exposure at such time and all other amounts
payable under the Loan Documents shall be forthwith due and payable, without
protest, presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by any Credit Party; and


 


(ii)           the
Company shall forthwith deposit in an account with the Administrative Agent, in
the name of the Administrative Agent and for the benefit of the Lenders, an
amount in cash equal to the LC Exposure, which amount shall be immediately due
and payable, without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly waived by any Credit
Party, and shall be applied as provided in Section 8.02(f).


 


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(c)           Upon
the occurrence of any Event of Default, the Administrative Agent shall, at the
request of the Requisite Lenders, or may with the consent of the Requisite
Lenders, without notice to (except as expressly provided for in any Loan Document)
or demand upon any Credit Party, which are expressly waived by any Credit Party
(except as to notices expressly provided for in any Loan Document), proceed to
protect, exercise and enforce the rights and remedies of the Administrative
Agent and the Lenders under the Loan Documents against any Credit Party and
such other rights and remedies as are provided by Requirement of Law or equity.


 


(d)           The
rights provided for in this Agreement and the other Loan Documents are
cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other instrument, document
or agreement not existing or hereafter arising.


 


(e)           The
order and manner in which the Lenders’ rights and remedies are to be exercised
shall be determined by the Requisite Lenders in their sole discretion, and all
payments received by the Administrative Agent and the Lenders, or any of them,
shall be applied first to the costs and expenses (including reasonable
Attorneys Costs incurred by the Administrative Agent and the Lenders), and
thereafter paid pro rata to the
Lenders in the same proportions that the aggregate Obligations owed to each
Lender under the Loan Documents bear to the aggregate Obligations owed under
the Loan Documents to all the Lenders, without priority or preference among the
Lenders.  Regardless of how each Lender
may treat payments for the purpose of its own accounting, for the purpose of
computing any Credit Party’s Obligations hereunder, payments shall be applied
first, to the costs and expenses of the Administrative Agent and the Lenders,
as set forth above, second, to the payment of accrued and unpaid interest due
under any Loan Documents to and including the date of such application
(ratably, and without duplication, according to the accrued and unpaid interest
due under each of the Loan Documents), and third, to the payment of all other
amounts (including principal and fees) then owing to the Administrative Agent
or the Lenders under the Loan Documents. 
No application of payments will cure any Event of Default, or prevent
acceleration, or continued acceleration, of amounts payable under the Loan
Documents, or prevent the exercise, or continued exercise, of rights or
remedies of the Lenders hereunder or thereunder or under any Requirement of Law
or in equity.


 


(f)            Cash collateral deposited with
the Administrative Agent upon the occurrence of an Event of Default pursuant to
clause (ii) of Section 8.02(a) or clause (ii) of Section 8.02(b) shall be held
by the Administrative Agent as collateral for the payment and performance of
the obligations of the Company under this Agreement.  The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over funds so deposited
and shall invest and reinvest such funds in short-term instruments in the
manner and to the extent the Administrative Agent deems consistent with the use
of such funds as collateral for the performance of the Company’s obligations
hereunder.  Other than any interest
earned on the investment or reinvestment


 


68

















 


of such funds in accordance with the preceding sentence,
all investment and reinvestment shall be made at the Company’s risk and expense
and the cash collateral deposited shall not bear interest for the account of
the company.  Interest or profits, if any,
on such investments shall accumulate in such account.  Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Company for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Lenders with LC Exposure representing greater
than 51% of the total LC Exposure), be applied to satisfy other obligations of
the Company under this Agreement.  If
the Company is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Company within three Business
Days after all Events of Default have been cured or waived.


 


ARTICLE IX


 


THE ADMINISTRATIVE AGENT


 


Section 9.01.  Appointment
and Authorization.  Subject
to Section 9.07, each Lender hereby irrevocably appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Administrative
Agent by the terms thereof or are reasonably incidental, as determined by the
Administrative Agent, thereto.  This
appointment and authorization is intended solely for the purpose of
facilitating the servicing of the Loans and does not constitute appointment of
the Administrative Agent as trustee for any Lender or as representative of any
Lender for any other purpose and, except as specifically set forth in the Loan
Documents to the contrary, the Administrative Agent shall take such action and
exercise such powers only in an administrative and ministerial capacity.


 


Section 9.02.  Administrative
Agent and Affiliates. 
JPMorgan Chase Bank (and each successor Administrative Agent) has the
same rights and powers under the Loan Documents as any other Lender and may
exercise the same as though it were not the Administrative Agent, and the term
“Lender” or “Lenders” includes JPMorgan Chase Bank in its individual
capacity.  JPMorgan Chase Bank (and each
successor Administrative Agent) and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of banking, trust or other
business with any Credit Party, any Subsidiary thereof, or any Affiliate of any
Credit Party or any Subsidiary thereof, as if it were not the Administrative
Agent and without any duty to account therefor to the Lenders.  JPMorgan Chase Bank (and each successor
Administrative Agent) need not account to any other Lender for any monies
received by it for reimbursement of its costs and expenses as Administrative
Agent hereunder, or for any monies received by it in any 


 


69

















 


other
capacity.  The Administrative Agent
shall not be deemed to hold a fiduciary relationship with any Lender and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent, regardless of whether a Default or an Event of Default
has occurred and is continuing.


 


Section 9.03.  Lenders’
Credit Decisions.  Each
Lender agrees that it has, independently and without reliance upon the
Administrative Agent, any other Lender or the directors, officers, agents,
employees or attorneys of the Administrative Agent or of any other Lender, and
instead in reliance upon information supplied to it by or on behalf of the
Company and upon such other information as it has deemed appropriate, made its
own independent credit analysis and decision to enter into this Agreement.  Each Lender also agrees that it shall,
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the
Loan Documents.


 


Section 9.04.  Action by
Administrative Agent.


 


(a)           Absent
actual knowledge of the Administrative Agent of the existence of a Default, the
Administrative Agent may assume that no Default has occurred and is continuing,
unless the Administrative Agent (or the Lender that is then the Administrative
Agent) has received notice from any Credit Party stating the nature of the
Default or has received notice from a Lender stating the nature of the Default
and that such Lender considers the Default to have occurred and to be
continuing.


 


(b)           The
Administrative Agent has only those duties under the Loan Documents as are
expressly set forth therein.


 


(c)           Except
for any obligation expressly set forth in the Loan Documents and as long as the
Administrative Agent may assume that no Event of Default has occurred and is
continuing, the Administrative Agent may, but shall not be required to,
exercise its discretion to act or not act, except that the Administrative Agent
shall be required to act or not act upon the instructions of the Requisite
Lenders (or of all the Lenders, to the extent required by Section 10.01) and
those instructions shall be binding upon the Administrative Agent and all the
Lenders, provided
that the Administrative Agent shall not be required to act or not act if to do
so would be contrary to any Loan Document or to any applicable Requirement of
Law or would result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent.


 


(d)           If
the Administrative Agent has received a notice specified in subsection (a), the
Administrative Agent shall immediately give notice thereof to the Lenders and
shall act or not act upon the instructions of the Requisite Lenders, or of all


 


70

















 


the Lenders, as
required hereunder, provided that the Administrative Agent
shall not be required to act or not act if to do so would be contrary to any
Loan Document or to any applicable Requirement of Law or would result, in the
reasonable judgment of the Administrative Agent, in substantial risk of
liability to the Administrative Agent, and except that if the Requisite
Lenders, or all the Lenders, if required hereunder, fail, for five Business
Days after the receipt of notice from the Administrative Agent, to instruct the
Administrative Agent, then the Administrative Agent, in its sole discretion,
may act or not act as it deems advisable for the protection of the interests of
the Lenders.


 


(e)           The
Administrative Agent shall have no liability to any Lender for acting, or not
acting, as instructed by the Requisite Lenders, or all the Lenders, if required
hereunder, notwithstanding any other provision hereof.


 


Section 9.05.  Liability
of Administrative Agent. 
Neither the Administrative Agent nor any of its directors, officers,
agents, employees or attorneys shall be liable for any action taken or not
taken by them under or in connection with the Loan Documents, except for their
own gross negligence or willful misconduct. 
Without limitation on the foregoing, the Administrative Agent and its
directors, officers, agents, employees and attorneys:


 


(a)           May
treat any Lender as a Lender until the Administrative Agent receives notice of
the assignment or transfer thereof, in form satisfactory to the Administrative
Agent, signed by the payee, and may treat each Lender as the owner of that
Lender’s interest in the Obligations for all purposes of this Agreement until
the Administrative Agent receives notice of the assignment or transfer thereof,
in form satisfactory to the Administrative Agent, signed by that Lender.


 


(b)           May
consult with legal counsel (including in-house legal counsel), accountants (including
in-house accountants) and other professionals or experts selected by it, or
with legal counsel, accountants or other professionals or experts for the
Credit Parties and/or their Subsidiaries or the Lenders, and shall not be
liable for any action taken or not taken by it in good faith in accordance with
any advice of such legal counsel, accountants or other professionals or
experts.


 


(c)           Shall
not be responsible to any Lender for any statement, warranty or representation
made in any of the Loan Documents or in any notice, certificate, report,
request or other statement (written or oral) given or made in connection with
any of the Loan Documents.


 


(d)           Except
to the extent expressly set forth in the Loan Documents, shall have no duty to
ask or inquire as to the performance or observance by the Company or its
Subsidiaries of any of the terms, conditions or covenants of any of the Loan
Documents or to inspect the Property, books or records of the Company or its
Subsidiaries.


 


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(e)           Will
not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, effectiveness, sufficiency or value of any Loan
Document, any other instrument or writing furnished pursuant thereto or in
connection therewith.


 


(f)            Will
not incur any liability by acting or not acting in reliance upon any Loan
Document, notice, consent, certificate, statement, request or other instrument
or writing believed by it to be genuine and signed or sent by the proper party
or parties.


 


(g)           Will
not incur any liability for any arithmetical error in computing any amount paid
or payable by any Credit Party or any Subsidiary or Affiliate thereof or paid
or payable to or received or receivable from any Lender under any Loan
Document, including, without limitation, principal, interest, Facility Fees,
Loans and other amounts; provided  that,
promptly upon discovery of such an error in computation, the Administrative
Agent, the Lenders and (to the extent applicable) such Credit Party and/or its
Subsidiaries or Affiliates shall make such adjustments as are necessary to
correct such error and to restore the parties to the position that they would
have occupied had the error not occurred.


 


Section 9.06.  Indemnification.  Each Lender shall, ratably in accordance
with its Pro Rata Share (if the Commitments are then in effect) or in
accordance with its proportion of the aggregate outstanding Loans (if the
Commitments have then been terminated), indemnify and hold the Administrative
Agent and its Affiliates, directors, officers, agents, employees and attorneys
harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including, without limitation, Attorneys Costs that
may be imposed on, incurred by or asserted against it or them in any way
relating to or arising out of the Loan Documents (other than Loan losses
incurred by reason of the failure of any Credit Party to pay the Loans) or any
action taken or not taken by it as Administrative Agent thereunder, except such
as result from its own gross negligence or willful misconduct.  Without limitation on the foregoing, each Lender
shall reimburse the Administrative Agent upon demand for that Lender’s Pro Rata
Share of any out-of-pocket cost or expense incurred by the Administrative Agent
in connection with the negotiation, preparation, execution, delivery,
amendment, waiver, restructuring, reorganization (including a bankruptcy
reorganization), enforcement or attempted enforcement of the Loan Documents, to
the extent that any Credit Party is required by Section 10.04 to pay that cost
or expense but fails to do so upon demand. 
Nothing in this Section 9.06 shall entitle the Administrative Agent
to recover any amount from the Lenders if and to the extent that such amount
has theretofore been recovered from the Company or any of its
Subsidiaries.  To the extent that the
Administrative Agent is later reimbursed such cost or expense by any Credit
Party or any of its Subsidiaries, it shall return the amounts paid to it by the
Lenders in respect of such cost or expense.


 


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Section 9.07.  Successor
Administrative Agent.  The
Administrative Agent may, and at the request of the Requisite Lenders shall,
resign as Administrative Agent upon 30 days’ notice to the Lenders and the
Company.  If the Administrative Agent
shall resign as Administrative Agent under this Agreement, the Company shall
appoint from among the Lenders a successor Administrative Agent for the
Lenders, unless an Event of Default has occurred and is continuing, in which
case such successor administrative agent shall be selected from among the
Lenders by the Requisite Lenders.  If no
successor Administrative Agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Company, a successor administrative
agent from among the Lenders.  Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term “Administrative Agent”
shall mean such successor administrative agent and the retiring Administrative
Agent’s appointment, powers and duties as Administrative Agent shall be
terminated.  After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article IX, and Sections 10.04 and 10.16 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. 
If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as a successor administrative agent is appointed as
provided for above.


 


Section 9.08.  No
Obligations of Credit Parties. 
Nothing contained in this Article IX shall be deemed to impose upon
any Credit Party any obligation in respect of the due and punctual performance
by the Administrative Agent of its obligations to the Lenders under any
provision of this Agreement, and, except as expressly provided in any Articles
of the Agreement other than this Article IX, no Credit Party shall have
liability to the Administrative Agent or any of the Lenders in respect of any
failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders under this
Agreement.  Without limiting the
generality of the foregoing, where any provision of this Agreement relating to
the payment of any amounts due and owing under the Loan Documents provides that
such payments shall be made by any Credit Party to the Administrative Agent for
the account of the Lenders, such Credit Party’s obligations to the Lenders in
respect of such payments shall be deemed to be satisfied upon the making of
such payments to the Administrative Agent in the manner provided by this
Agreement.


 


Section 9.09.  Documentation
Agent; Syndication Agent. 
None of the Lenders identified on the facing page or signature pages of
this Agreement as Documentation Agent or Syndication Agent shall have any
right, power, obligation, liability or responsibility or duty under this
Agreement other than those applicable to all


 


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Lenders as
such.  Without limiting the foregoing,
none of the Lenders so identified shall have or be deemed to have any fiduciary
relations with any Lender.  Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders
so identified in deciding to enter into this Agreement or in taking any action
hereunder.


 


ARTICLE X


 


MISCELLANEOUS


 


Section 10.01.  Amendments;
Consents.  No amendment,
modification, supplement, extension, termination or waiver of any provision of
this Agreement or any other Loan Document, no approval or consent thereunder,
and no consent to any departure by any Credit Party therefrom, may in any event
be effective unless in writing signed by the Requisite Lenders (and, in the
case of any amendment, modification or supplement of or to any Loan Document to
which such Credit Party is a party, signed by such Credit Party and, in the
case of any amendment, modification or supplement affecting the rights and
duties of the Administrative Agent, signed by the Administrative Agent), and
then only in the specific instance and for the specific purpose given; and,
without the approval in writing of each Lender affected thereby, no amendment,
modification, supplement, termination, waiver or consent may be effective:


 


(a)           To
decrease the principal of, or the amount of principal, principal prepayments or
the rate of interest payable on, any Loan, or to increase the amount of the
Commitment or the Pro Rata Share of such Lender, or to decrease the amount of
any Facility Fee payable to such Lender, or any other fee or amount payable to
such Lender under the Loan Documents or to waive an Event of Default consisting
of the failure of any Credit Party to pay when due principal, interest or any
Facility Fee;


 


(b)           To
postpone any date fixed for any payment of principal of, prepayment of
principal of or any installment of interest on, any Loan or any installment of
any Facility Fee, or to extend the term of the Commitments;


 


(c)           To
amend the provisions of the definition of “Requisite Lenders,” Article IV
or this Article;


 


(d)           To
release the Company from its Obligations under the Guaranty, to release any
Foreign Borrower from its obligations under any Foreign Borrower Joinder
Agreement in respect of outstanding Foreign Currency Loans; or


 


(e)           To
amend any provision of this Agreement that expressly requires the consent or
approval of all the Lenders.


 


Any amendment,
modification, supplement, termination, waiver or consent pursuant to this
Section shall apply equally to, and shall be binding upon, all the Lenders and
the Administrative Agent.


 


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Section 10.02.  Notices.  Except as otherwise expressly provided in
the Loan Documents, all notices, requests, demands, directions and other
communications provided for therein shall be given by Requisite Notice and
shall be effective as follows:


 




	
  Mode of Delivery

  	
   

  	
  Effective on earlier of 

  actual receipt and:

  
	
   

  	
   

  	
   

  
	
  Courier

  	
   

  	
  On scheduled delivery
  date

  
	
   

  	
   

  	
   

  
	
  Facsimile

  	
   

  	
  When transmission
  complete

  
	
   

  	
   

  	
   

  
	
  Mail

  	
   

  	
  Fourth Business Day
  after deposit in U.S. mail

  
	
   

  	
   

  	
   

  
	
  Personal delivery

  	
   

  	
  When received

  
	
   

  	
   

  	
   

  
	
  Telephone

  	
   

  	
  When answered

  






 


provided,
however, that notice to the
Administrative Agent pursuant to Article II or IX shall not be effective
until actually received by the Administrative Agent.  The Administrative Agent and any Lender shall be entitled to rely
and act on any notice purportedly given by or on behalf of any Credit Party
even if such notice (i) was not made in a manner specified herein,
(ii) was incomplete, or (iii) was not preceded or followed by any
other notice specified herein or the terms of such notice as understood by the
recipient varied from any subsequent related notice provided for herein.  The applicable Credit Party shall indemnify
the Administrative Agent and any Lender from any loss, cost, expense or
liability as a result of relying on any notice permitted herein.


 


Section 10.03.  No
Waiver; Cumulative Remedies. 
No failure to exercise and no delay in exercising, on the part of any
Lender or the Administrative Agent or the Issuing Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.  The
rights, powers, privileges and remedies of the Administrative Agent, the
Issuing Bank and the Lenders provided herein or other Loan Document are
cumulative and not exclusive of any right, power, privilege or remedy provided
by Requirement of Law or equity.  The
terms and conditions of Article IX are inserted for the sole benefit of
the Administrative Agent, the Issuing Bank and the Lenders; the same may be
waived in whole or in part, with or without terms or conditions, in respect of
any Loan without prejudicing the Administrative Agent’s, the Issuing Bank’s or
the Lenders’ rights to assert them in whole or in part in respect of any other
Loan.


 


Section 10.04.  Costs and
Expenses.  The Company shall
pay, whether or not the Transactions shall be consummated:


 


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(a)           all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent), J.P. Morgan Securities, Salomon Smith Barney and Citicorp USA, Inc. in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), and


 


(b)           all out-of-pocket expenses
incurred by the Administrative Agent or any Lender, including the fees, charges
and disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement after a Default or Event of Default, including its rights under
this Section, or in connection with Letters of Credit or Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Letters of Credit or Loans.


 


Section 10.05.  Binding
Effect; Assignment.


 


(a)           This
Agreement and the other Loan Documents to which each of the Credit Parties is a
party will be binding upon and inure to the benefit of each Credit Party, the
Administrative Agent, each of the Lenders, and their respective successors and
assigns, except that (i) no Credit Party may assign its rights hereunder
or thereunder or any interest herein or therein without the prior written
consent of all the Lenders, and (ii) no Lender may assign or transfer its
rights or obligations hereunder except in accordance with this Section.  Any Lender may at any time pledge its Note
or any other instrument evidencing its rights as a Lender under this Agreement
to a Federal Reserve Lender, but no such pledge shall release that Lender from
its obligations hereunder or grant to such Federal Reserve Lender the rights of
a Lender hereunder absent foreclosure of such pledge.


 


(b)           From
time to time following the Closing Date, each Lender may assign to one or more
assignees all or any portion of its Pro Rata Share; provided that so long as no
Default or Event of Default exists, (i) such assignee is an Eligible Assignee,
and (ii) if such assignee is not then a Lender, an Affiliate of the assigning
Lender or a CLO administered or managed by the assigning Lender or an Affiliate
of the assigning Lender, shall be approved by each of the Administrative Agent
and the Company (neither of which approvals shall be unreasonably withheld or
delayed; it being understood that it shall not be deemed unreasonable to
withhold such consent if based solely on the desire to avoid the payment of
additional costs or taxes), and (iii) except in the case of an assignment to an
Affiliate of the assigning Lender, to a CLO administered or managed by the
assigning Lender or an Affiliate of the assigning Lender, to another Lender or
of the entire remaining Commitment of the assigning Lender; the assignment
shall not assign a Pro Rata Share which is equivalent to less than the Minimum
Amount therefor.  A copy of a Notice of
Assignment and Acceptance shall be delivered to the Administrative Agent


 


76

















 


with respect to
any assignment.  The effective date of
any such assignment shall be as specified in the Notice of Assignment and
Acceptance, but not earlier than the date which is five Business Days after the
date the Administrative Agent has received the Notice of Assignment and
Acceptance.  Upon acceptance by the
Administrative Agent of such Notice Assignment and Acceptance, the Eligible
Assignee named therein shall be a Lender for all purposes of this Agreement,
with the Pro Rata Share therein set forth and, to the extent of such Pro Rata
Share, the assigning Lender shall be released from its further obligations
under this Agreement.  Each Credit Party
agrees that it shall execute and deliver upon request (against delivery by the
assigning Lender to such Credit Party of any Note) to such assignee Lender, one
or more Notes evidencing that assignee Lender’s Pro Rata Share, and to the
assigning Lender if requested, one or more Notes evidencing the remaining
balance Pro Rata Share retained by the assigning Lender.


 


(c)           By
executing and delivering a Notice of Assignment and Acceptance, the Eligible
Assignee thereunder acknowledges and agrees that:  (i) other than the representation and warranty that it is
the legal and beneficial owner of the Pro Rata Share being assigned thereby
free and clear of any adverse claim, the assigning Lender has made no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness or
sufficiency of this Agreement or any other Loan Document; (ii) the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to the financial condition of any Credit Party or
the performance by any Credit Party of the Obligations; (iii) it has
received a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 6.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(iv) it will, independently and without reliance upon the Administrative
Agent or any Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) it appoints and
authorizes the Administrative Agent to take such action and to exercise such
powers under this Agreement as are delegated to the Administrative Agent by
this Agreement; and (vi) it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.


 


(d)           After
receipt of a completed Notice of Assignment and Acceptance, and receipt of an
assignment fee of $3,500 from such Eligible Assignee, the Administrative Agent
shall, promptly following the effective date thereof, provide to the Company
and the Lenders a revised Schedule 10.02 giving effect thereto.


 


(e)           Each
Lender may from time to time grant participations to one or more banks or other
financial institutions (including another Lender) in a portion of its Pro Rata
Share; provided,
however,
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to


 


77

















 


the other parties
hereto for the performance of such obligations, (iii) the participating
banks or other financial institutions shall not be a Lender hereunder for any
purpose except, if the participation agreement so provides, for the purposes of
Article III but only to the extent that the cost of such benefits to the Company
does not exceed the cost which the Company would have incurred in respect of
such Lender absent the participation, (iv) the Credit Parties, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement, (v) the participation shall not restrict
an increase in the Commitments or in the granting Lender’s Pro Rata Share, so
long as the amount of the participation interest is not affected thereby and
(vi) the consent of the holder of such participation interest shall not be
required for amendments or waivers of provisions of the Loan Documents other
than those which (A) extend the Maturity Date as to such participant or
any other date upon which any payment of money is due to such participant,
(B) reduce the rate of interest owing to such participant, any fee or any
other monetary amount owing to such participant or (C) reduce the amount
of any installment of principal owing to such participant.  A Lender granting a participation in
accordance with this clause (e) shall give Requisite Notice to the Company on
by executing and delivering a Notice of Participation no later than 5 Business
Days after the effective date of such participation.


 


Section 10.06.  Sharing
of Setoffs.  Each Lender
severally agrees that if it, through the exercise of any right of setoff,
banker’s lien or counterclaim against any Credit Party or otherwise, receives
payment of the Obligations held by it that is ratably more than all Extensions
of Credit (including Competitive Loans) made by any other Lender, through any
means, then, subject to any applicable Requirement of Law: (a) the Lender
exercising the right of setoff, banker’s lien or counterclaim or otherwise receiving
such payment shall purchase, and shall be deemed to have simultaneously
purchased, from the other Lenders a participation in the Obligations held by
the other Lenders and shall pay to the other Lenders a purchase price in an
amount so that the share of the Obligations held by each Lender after the
exercise of the right of setoff, banker’s lien or counterclaim or receipt of
payment shall be in the same proportion that existed prior to the exercise of
the right of setoff, banker’s lien or counterclaim or receipt of payment; and
(b) such other adjustments and purchases of participations shall be made
from time to time as shall be equitable to ensure that all of the Lenders share
any payment obtained in respect of the Obligations ratably in accordance with
each Lender’s share of the Obligations immediately prior to, and without taking
into account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker’s lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by such Credit Party or any Person claiming through or
succeeding to the rights of such Credit Party, the purchase of a participation
shall be rescinded and the purchase price thereof shall be restored to the
extent of the recovery, but without interest. 
Each Lender that purchases a participation in the Obligations pursuant
to this Section shall from and after the purchase have the right to give all notices,
requests, demands, directions and other communications under this


 


78

















 


Agreement with
respect to the portion of the Obligations purchased to the same extent as
though the purchasing Lender were the original owner of the Obligations purchased.  Each Credit Party expressly consents to the
foregoing arrangements and agree that any Lender holding a participation in an
Obligation so purchased may, to the fullest extent permitted by any applicable
Requirement of Law, exercise any and all rights of setoff, banker’s lien or
counterclaim with respect to the participation as fully as if the Lender were
the original owner of the Obligation purchased.


 


Section 10.07.  Counterparts.  This Agreement may be executed by one or
more of the parties to this Agreement in any number of separate counterparts,
each of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument.  A set of the copies of this
Agreement signed by all the parties shall be lodged with the Company and the
Administrative Agent.


 


Section 10.08.  Severability.  The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.


 


Section 10.09.  No Third
Parties Benefited.  This
Agreement is made and entered into for the sole protection and legal benefit of
the Credit Parties, the Administrative Agent and the Lenders, and their
permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action
or claim in connection with, this Agreement or any of the other Loan
Documents.  Neither the Administrative
Agent nor any Lender shall have any obligation to any Person not a party to
this Agreement or other Loan Documents.


 


Section 10.10.  Time.  Time is of the essence as to each term or
provision of this Agreement and each of the other Loan Documents.


 


Section 10.11.  GOVERNING
LAW AND JURISDICTION.


 


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


 


(b)           ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND ANY OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, COUNTY OF NEW YORK AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH CREDIT PARTY CONSENTS TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. 
EACH CREDIT PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
REQUIREMENT OF LAW, ANY OBJECTION,


 


79

















 


INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO.  EACH CREDIT PARTY
WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY
BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.


 


Section 10.12.  WAIVER OF
JURY TRIAL.  THE CREDIT
PARTIES, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE
RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
ANY ADMINISTRATIVE AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.  THE CREDIT PARTIES, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. 
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS
TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.


 


Section 10.13.  Entire
Agreement.  This Agreement,
together with the other Loan Documents, embodies the entire agreement and
understanding between the Credit Parties, the Administrative Agent and the
Lenders, and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof, and any prior arrangements made with respect to the
payment by the Credit Parties of (or any indemnification for) any fees, costs
or expenses payable to or incurred (or to be incurred) by or on behalf of the
Administrative Agent or any Lender.


 


Section 10.14.  Interpretation.  This Agreement is the result of negotiations
between and has been reviewed by counsel to the Administrative Agent, the
Lenders, the Company and other parties, and is the product of all parties
hereto.  Accordingly, this Agreement and
the other Loan Documents shall not be construed against the Administrative
Agent or any Lender merely because of the Administrative


 


80

















 


Agent’s or any
Lender’s involvement in the preparation of such documents and agreements.


 


Section 10.15.  Nature of
Lenders’ Obligations.  The
obligations of the Lenders hereunder are several and not joint or joint and
several.  Nothing contained in this
Agreement or any other Loan Document and no action taken by the Administrative
Agent or the Lenders or any of them pursuant hereto or thereto may, or may be
deemed to, make the Lenders a partnership, an association, a joint venture or
other entity, either among themselves or with any Credit Party or any Affiliate
of any Credit Party.  Each Lender’s
obligation to make any Loan pursuant hereto is several and not joint or joint
and several.  A default by any Lender
will not increase the Pro Rata Share attributable to any other Lender.  Any Lender not in default may, if it
desires, assume in such proportion as the nondefaulting Lenders agree the
obligations of any Lender in default, but is not obligated to do so.  The Administrative Agent agrees that it will
use its best efforts either to induce the other Lenders to assume the
obligations of a Lender in default or to obtain another Lender, reasonably
satisfactory to the Company, to replace such a Lender in default.


 


Section 10.16.  Indemnity; Damage Waiver.


 


(a)           The Company shall indemnify the
Administrative Agent and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any exchange or conversion of currencies in connection with
Section 2.06 or otherwise, (iv) the issuance of any Letter of Credit or
(v) the failure of the Issuing Bank to honor a drawing under any Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of any
Governmental Authority,
(vi) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by any Credit Party or any of its
Subsidiaries, or any Environmental Liability related in any way to any Credit
Party or any of its Subsidiaries or (vii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses resulted from the gross negligence or
willful misconduct of such Indemnitee.  As
between the Company and the Issuing Bank, the Company assumes all risks of the
acts and omissions of, or misuse of a Letter of Credit by, a beneficiary of
such Letter of Credit.  In furtherance
and not in limitation of


 


81

















 


the foregoing, no
Indemnitee shall be responsible for any of the following:  (A) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any documents submitted by any party
in connection with the request and application for and issuance of any Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason whatsoever; (C) any failure of a beneficiary of any
Letter of Credit to comply with any condition of drawing thereunder; (D) any
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not in
cipher; (E) any error in interpretation; (F) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (G) any misapplication
by a beneficiary of any Letter of Credit of the proceeds of any drawing
thereunder; or (H) any consequences arising from or related to events or circumstances
beyond the control of the Issuing Bank, including any act or omission, whether
rightful or wrongful, of any Governmental Authority.  In furtherance and not in limitation of the specific provisions
herein set forth, any action taken or omitted by the Issuing Bank under or in
connection with any Letter of Credit or related certificates, if taken or
omitted in good faith, shall not result in or give rise to any liability of any
Indemnitee to the Company.


 


(b)           The
Company shall indemnify the Administrative Agent and each Lender for funding
costs or funding losses (excluding loss of margin) if prepayment or conversion
of a IBOR Loan occurs prior to the end of an Interest Period, if caused or
requested by any Credit Party or if any Credit Party fails to consummate a IBOR
Loan because conditions precedent to borrowing or conversion are not satisfied.


 


Section 10.17.  Nonliability
of the Lenders.  Each Credit
Party acknowledges and agrees that the relationship between each Credit Party
and the Administrative Agent and the Lenders is, and shall at all times remain,
solely that of borrowers and lenders; neither the Administrative Agent nor the
Lenders shall under any circumstance be construed to be partners or joint
venturers of any Credit Party or its Affiliates; neither the Administrative
Agent nor the Lenders shall under any circumstance be deemed to be in a
relationship of confidence or trust or a fiduciary relationship with any Credit
Party or its Affiliates, or to owe any fiduciary duty to any Credit Party or
its Affiliates; neither the Administrative Agent nor the Lenders undertake or
assume any responsibility or duty to any Credit Party or its Affiliates to
select, review, inspect, supervise, pass judgment upon or inform such Credit
Party or its Affiliates of any matter in connection with its Property or the
operations of such Credit Party or its Affiliates; each Credit Party and its
Affiliates shall rely entirely upon their own judgment with respect to such
matters; and any review, inspection, supervision, exercise of judgment or
supply of information undertaken or assumed by the Administrative Agent or the
Lenders in connection with such matters is solely for the protection of the
Administrative Agent


 


82

















 


and the Lenders
and neither any Credit Party nor any other Person is entitled to rely thereon.


 


Section 10.18.  Failure
to Charge Not Subsequent Waiver. 
Any decision by the Administrative Agent or any Lender not to require
payment of any interest (including Default Interest), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent’s or such Lender’s right to require full payment of
any interest (including Default Interest), fee, cost or other amount payable
under any Loan Document, or to calculate an amount payable by another method
that is not inconsistent with this Agreement, on any other or subsequent occasion.


 


Section 10.19.  Headings.  Section headings in this Agreement and the
other Loan Documents are included for convenience of reference only and are not
part of this Agreement or the other Loan Documents for any other purpose.


 


Section 10.20.  Foreign
Lenders and Participants. 
Each Lender, and each holder of a participation interest herein, that is
a “foreign corporation, partnership or trust” within the meaning of the Code
shall deliver to the Administrative Agent, (a) within 20 days after the
Closing Date, or (b) prior to accepting an assignment or receiving a
participation interest herein in respect of Dollar Loans, two duly signed
completed copies of either Form W-8BEN (relating to such Person and entitling
it to a complete exemption from withholding on all payments to be made to such
Person by any Credit Party pursuant to this Agreement) or Form W-8ECI (relating
to all payments to be made to such Person by any Credit Party pursuant to this
Agreement) of the United States Internal Revenue Service or such other evidence
(including, if reasonably necessary, Form W-8 or W-9) satisfactory to the
Company and the Administrative Agent that no withholding under the U.S. federal
income tax laws is required with respect to such Person.  Thereafter and from time to time, each such
Person shall (a) promptly submit to the Administrative Agent two such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
the Company and the Administrative Agent of any available exemption from,
United States withholding taxes in respect of all payments to be made to such
Person by the Company pursuant to this Agreement and (b) take such steps
as shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re-designation
of its Lending Office, if any) to avoid any Requirement of Law that the Company
make any deduction or withholding for taxes from amounts payable to such
Person.  If such Person fails to timely
deliver the above forms or other documentation, then the Administrative Agent
may withhold from any interest payment to such Person an amount equivalent to
the applicable withholding tax imposed by Sections 1441 and 1442 of the Code,
without reduction.  If any Governmental
Authority asserts that the Administrative Agent did not properly withhold


 


83

















 


any tax or other
amount from payments made in respect of such Person, such Person shall
indemnify the Administrative Agent therefor, including all penalties and
interest and costs and expenses (including reasonable Attorneys Fees of the
Administrative Agent.  The obligation of
the Lenders under this Section shall survive the payment of all Obligations and
the resignation or replacement of the Administrative Agent.


 


Section 10.21.  Confidentiality.  Each Lender agrees to hold any confidential
information that it may receive from any Credit Party pursuant to this
Agreement in confidence, except for disclosure: (a) to a Lender’s
Affiliates; (b) to other Lenders and their Affiliates; (c) to legal
counsel and accountants for any Credit Party or any Lender; (d) to other
professional advisors to any Credit Party or any Lender, provided that the recipient
has accepted such information subject to a confidentiality agreement
substantially similar to this Section; (e) to regulatory officials having
jurisdiction over that Lender; (f) as required by Requirement of Law or
legal process or in connection with any legal proceeding to which that Lender
and any Credit Party is adverse parties; and (g) to another financial
institution in connection with a disposition or proposed disposition to that
financial institution of all or part of that Lender’s interests hereunder or a
participation interest in its Loans, provided that the recipient has agreed to
treat such information confidentially on a basis similar to the foregoing.  For purposes of the foregoing, “confidential information” shall mean any
information respecting any Credit Party or its Subsidiaries reasonably
considered by such Credit Party to be confidential, other than
(i) information previously filed with any Governmental Authority and
available to the public, (ii) information previously published in any
public medium from a source other than, directly or indirectly, that Lender,
and (iii) information previously disclosed by any Credit Party to any
Person on a non-confidential basis. 
Nothing in this Section shall be construed to create or give rise to any
fiduciary duty on the part of the Administrative Agent or the Lenders to any
Credit Party.


 


84

















 


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


 


	
   

  	
  SCIENCE APPLICATIONS

  INTERNATIONAL
  CORPORATION,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–1

















 


	
   

  	
  JPMORGAN CHASE BANK, as
  

  
	
   

  	
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–2

















 


	
   

  	
  JPMORGAN CHASE BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–3

















 


	
   

  	
  CITICORP USA, INC.,

  
	
   

  	
  as Syndication Agent
  and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–4

















 


	
   

  	
  MORGAN STANLEY BANK,

  
	
   

  	
  as Co-Documentation
  Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–5

















 


	
   

  	
  WACHOVIA BANK N.A.,

  
	
   

  	
  as Co-Documentation
  Agent and as a

  Lender,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–6

















 


	
   

  	
  THE ROYAL BANK OF
  SCOTLAND plc,

  
	
   

  	
  as Co-Documentation
  Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–7

















 


	
   

  	
  THE BANK OF
  TOKYO-MITSUBISHI

  TRUST COMPANY,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–8

















 


	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–9

















 


	
   

  	
  MELLON BANK N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–10

















 


	
   

  	
  KEY CORPORATE CAPITAL,
  INC.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Julien Michaels

  
	
   

  	
   

  	
  Title:  Vice President

  



 


S–11

















 


	
   

  	
  SOCIETE GENERALE

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–12

















 


	
   

  	
  MIZUHO CORPORATE BANK,
  Ltd.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–13

















 


	
   

  	
  CREDIT LYONNAIS (NEW
  YORK BRANCH),

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–14

















 


	
   

  	
  THE NORTHERN TRUST
  COMPANY,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–15

















 


	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–16

















 


	
   

  	
  ALLFIRST BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–17

















 


	
   

  	
  WELLS FARGO BANK, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S–18

















 


Exhibits and Schedules
have been omitted.