Exhibit
10.1


 


CREDIT AGREEMENT


July 20, 2007


among


NATIONAL SEMICONDUCTOR CORPORATION,


 


VARIOUS LENDERS,


GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Syndication Agent


BANK OF AMERICA, N.A.,

as Administrative Agent


and


GOLDMAN SACHS CREDIT PARTNERS L.P.,

and

BANC OF AMERICA SECURITIES LLC

as Joint Lead Arrangers and Joint Bookrunners


and


JPMORGAN
SECURITIES INC.,

and

MIZUHO CORPORATE BANK (USA),

and

SUMITOMO MITSUI BANKING CORPORATION,

as Co-Documentation Agents


 


	
  

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  $500,000,000
  Senior Unsecured Credit Facility

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


















TABLE OF CONTENTS


	
  

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1. DEFINITIONS AND INTERPRETATION

  	
   

  	
  1

  
	
  1.1.
  Definitions

  	
   

  	
  14

  
	
  1.2.
  Accounting Terms

  	
   

  	
  15

  
	
  1.3.
  Interpretation, etc.

  	
   

  	
  15

  
	
  1.4.
  Times of Day

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 2. LOANS

  	
   

  	
  15

  
	
  2.1.
  Loans

  	
   

  	
  15

  
	
  2.2.
  Pro Rata Shares; Availability of Funds

  	
   

  	
  16

  
	
  2.3.
  Use of Proceeds

  	
   

  	
  16

  
	
  2.4.
  Evidence of Debt; Register; Lenders’ Books and Records; Notes

  	
   

  	
  16

  
	
  2.5.
  Interest on Loans

  	
   

  	
  17

  
	
  2.6.
  Conversion/Continuation

  	
   

  	
  18

  
	
  2.7.
  Default Interest

  	
   

  	
  19

  
	
  2.8.
  Fees

  	
   

  	
  19

  
	
  2.9.
  Scheduled Payments/Commitment Reductions

  	
   

  	
  19

  
	
  2.10.
  Voluntary Prepayments/Commitment Reductions

  	
   

  	
  20

  
	
  2.11.
  Application of Prepayments

  	
   

  	
  21

  
	
  2.12.
  General Provisions Regarding Payments

  	
   

  	
  21

  
	
  2.13.
  Ratable Sharing

  	
   

  	
  22

  
	
  2.14.
  Making or Maintaining LIBO Rate Loans

  	
   

  	
  22

  
	
  2.15.
  Increased Costs; Capital Adequacy

  	
   

  	
  24

  
	
  2.16.
  Taxes; Withholding, etc.

  	
   

  	
  25

  
	
  2.17.
  Obligation to Mitigate

  	
   

  	
  27

  
	
  2.18.
  Removal or Replacement of a Lender

  	
   

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 3. CONDITIONS PRECEDENT

  	
   

  	
  29

  
	
  3.1.
  Closing Date

  	
   

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 4. REPRESENTATIONS AND WARRANTIES

  	
   

  	
  30

  
	
  4.1.
  Organization; Requisite Power and Authority; Qualification

  	
   

  	
  30

  
	
  4.2.
  Due Authorization

  	
   

  	
  31

  
	
  4.3. No
  Conflict

  	
   

  	
  31

  
	
  4.4.
  Governmental Consents

  	
   

  	
  31

  
	
  4.5.
  Binding Obligation

  	
   

  	
  31

  
	
  4.6.
  Historical Financial Statements

  	
   

  	
  31

  
	
  4.7. No
  Material Adverse Change

  	
   

  	
  32

  
	
  4.8.
  Adverse Proceedings, etc.

  	
   

  	
  32

  
	
  4.9.
  Governmental Regulation

  	
   

  	
  32

  
	
  4.10.
  Margin Stock

  	
   

  	
  32

  
	
  4.11.
  Disclosure

  	
   

  	
  32

  
	
  4.12.
  Patriot Act

  	
   

  	
  33

  



 



 ii
 









 


	
  

  	
   

  	
   

  
	
  SECTION 5. AFFIRMATIVE COVENANTS

  	
   

  	
  33

  
	
  5.1.
  Financial Statements and Other Reports

  	
   

  	
  33

  
	
  5.2.
  Existence

  	
   

  	
  35

  
	
  5.3.
  Payment of Taxes and Claims

  	
   

  	
  35

  
	
  5.4.
  Maintenance of Properties

  	
   

  	
  36

  
	
  5.5.
  Insurance

  	
   

  	
  36

  
	
  5.6.
  Books and Records; Inspections

  	
   

  	
  36

  
	
  5.7.
  Compliance with Laws

  	
   

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 6. NEGATIVE COVENANTS

  	
   

  	
  36

  
	
  6.1.
  Liens

  	
   

  	
  36

  
	
  6.2.
  Financial Covenants

  	
   

  	
  38

  
	
  6.3.
  Fundamental Changes; Disposition of Assets

  	
   

  	
  38

  
	
  6.4.
  Transactions with Shareholders and Affiliates

  	
   

  	
  39

  
	
  6.5.
  Conduct of Business

  	
   

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 7. EVENTS OF DEFAULT

  	
   

  	
  39

  
	
  7.1.
  Events of Default

  	
   

  	
  39

  
	
  7.2.
  Application of Funds

  	
   

  	
  41

  
	
   

  	
   

  	
   

  
	
  SECTION 8. THE AGENT

  	
   

  	
  42

  
	
  8.1.
  Appointment of the Agent

  	
   

  	
  42

  
	
  8.2.
  Powers and Duties

  	
   

  	
  42

  
	
  8.3.
  General Immunity

  	
   

  	
  42

  
	
  8.4.
  Agent Entitled to Act as Lender

  	
   

  	
  44

  
	
  8.5.
  Lenders’ Representations, Warranties and Acknowledgment

  	
   

  	
  44

  
	
  8.6.
  Right to Indemnity

  	
   

  	
  44

  
	
  8.7.
  Successor Agent

  	
   

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 9. MISCELLANEOUS

  	
   

  	
  46

  
	
  9.1.
  Notices

  	
   

  	
  46

  
	
  9.2.
  Expenses

  	
   

  	
  48

  
	
  9.3.
  Indemnity

  	
   

  	
  48

  
	
  9.4.
  Set-Off

  	
   

  	
  49

  
	
  9.5.
  Amendments and Waivers

  	
   

  	
  49

  
	
  9.6.
  Successors and Assigns; Participations

  	
   

  	
  50

  
	
  9.7.
  Independence of Covenants

  	
   

  	
  53

  
	
  9.8.
  Survival of Representations, Warranties and Agreements

  	
   

  	
  53

  
	
  9.9. No
  Waiver; Remedies Cumulative

  	
   

  	
  53

  
	
  9.10.
  Marshalling; Payments Set Aside

  	
   

  	
  53

  
	
  9.11.
  Severability

  	
   

  	
  54

  
	
  9.12.
  Obligations Several; Independent Nature of Lenders’ Rights

  	
   

  	
  54

  
	
  9.13.
  Headings

  	
   

  	
  54

  
	
  9.14.
  APPLICABLE LAW

  	
   

  	
  54

  
	
  9.15.
  CONSENT TO JURISDICTION

  	
   

  	
  54

  
	
  9.16.
  WAIVER OF JURY TRIAL

  	
   

  	
  55

  
	
  9.17.
  Confidentiality

  	
   

  	
  55

  



 



 iii
 









 


	
  9.18. Counterparts

  	
   

  	
  56

  
	
  9.19.
  Effectiveness

  	
   

  	
  56

  
	
  9.20.
  Patriot Act

  	
   

  	
  56

  
	
  9.21.
  Electronic Execution of Assignments

  	
   

  	
  56

  
	
  9.22.
  No Advisory or Fiduciary Responsibility

  	
   

  	
  56

  



 



 iv
 









 


	
  

  	
  APPENDICES:

  
	
   

  	
  A

  	
  Commitments

  
	
   

  	
  B

  	
  Notice Addresses

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
  A-1

  	
  Funding Notice

  
	
   

  	
  A-2

  	
  Conversion/Continuation Notice

  
	
   

  	
  B

  	
  Note

  
	
   

  	
  C

  	
  Compliance Certificate

  
	
   

  	
  D

  	
  Opinions of Counsel

  
	
   

  	
  E

  	
  Assignment Agreement

  
	
   

  	
  F

  	
  Certificate Re Non-bank Status

  
	
   

  	
  G

  	
  Closing Date Certificate

  



 



 v















CREDIT AGREEMENT


This CREDIT AGREEMENT,
dated as of July 20, 2007, is entered into by and among NATIONAL SEMICONDUCTOR CORPORATION, a Delaware corporation
(the “Borrower”), the Lenders
party hereto from time to time, GOLDMAN SACHS
CREDIT PARTNERS L.P. (“GSCP”),
as Syndication Agent, and BANK OF AMERICA, N.A. (“Bank of America”), as the Administrative
Agent (together with its permitted successors in such capacity, the “Agent”).


RECITALS:


WHEREAS,
capitalized terms used in these Recitals shall have the respective meanings set
forth for such terms in Section 1.1 hereof;


WHEREAS, the
Lenders have agreed to extend credit to the Borrower, in an aggregate amount
not to exceed $500,000,000, the proceeds of which will be used to refinance
debt incurred to repurchase shares of capital stock of the Borrower, and to pay
related fees and expenses.


NOW, THEREFORE, in
consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:


SECTION 1.   DEFINITIONS AND
INTERPRETATION


1.1   Definitions.  The following terms used herein, including in
the preamble, recitals and exhibits hereto, shall have the following meanings:


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


“Adverse Proceeding”
means any action, suit, proceeding, hearing (whether administrative, judicial
or otherwise), governmental investigation or arbitration (whether or not
purportedly on behalf of the Borrower or any of its Subsidiaries) at law or in equity,
or before or by any Governmental Authority, domestic or foreign (including any
Environmental Claims), whether pending or, to the knowledge of the Borrower or
any of its Subsidiaries, threatened against or affecting the Borrower or any of
its Subsidiaries or any property of the Borrower or any of its Subsidiaries.


“Affected Lender”
as defined in Section 2.14(b).


“Affected Loans” as
defined in Section 2.14(b).


“Affiliate” means,
as applied to any Person, any other Person directly or indirectly controlling,
controlled by, or under common control with, that Person.  For the purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling”, “controlled by”
and “under common control with”), as applied to any Person (other than an
Eligible Assignee), means the possession, directly or indirectly, of the power
(i) to 













vote 5% or more of the
Securities having ordinary voting power for the election of directors of such
Person or (ii) to direct or cause the direction of the management and policies
of that Person, whether through the ownership of voting securities or by
contract or otherwise.


“Agent” as defined
in the preamble hereto.


“Agent Parties” as defined in
Section 9.1(c).


“Aggregate Amounts Due”
as defined in Section 2.13.


“Agreement” means
this Credit Agreement, dated as of July    , 2007,
as it may be amended, supplemented or otherwise modified from time to time.


“Applicable
Margin” means (a)
with respect to LIBO Rate Loans, as of any date, a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as set forth
below:




	
  Public Debt Rating

  S&P/Moody’s

  	
   

  	
  Applicable Margin

  
	
  Level 1

  3 BBB+/Baa1

  	
   

  	
  0.500%

  
	
  Level 2

  BBB/Baa2

  	
   

  	
  0.625%

  
	
  Level 3

  BBB-/Baa3

  	
   

  	
  0.750%

  
	
  Level 4

  BB+/Ba1

  	
   

  	
  1.000%

  
	
  Level 5

  £ BB/Ba2

  	
   

  	
  1.250%

  






 


and (b) with respect to Base Rate Loans, 0.00%.


“Arrangers” means Goldman Sachs Credit Partners L.P. and Banc of
America Securities LLC.


“Assignment Agreement”
means an Assignment and Assumption Agreement substantially in the form of
Exhibit E, with such amendments or modifications as may be approved by the
Agent.


“Assignment Effective Date” as
defined in Section 9.6(b).


“Authorized Officer”
means, as applied to any Person, any individual holding the position of chairman
of the board (if an officer), chief executive officer, president or one of its
senior vice presidents (or the equivalent thereof), and such Person’s chief
financial officer, corporate controller, chief legal officer, general counsel
or treasurer.


“Bank of America” as defined in the preamble hereto.



 2
 









“Bankruptcy Code”
means Title 11 of the United States Code entitled “Bank­ruptcy,” as now
and hereafter in effect, or any successor statute.


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


“Base Rate Loan”
means a Loan bearing interest at a rate determined by reference to the Base
Rate.


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


“Borrower” as
defined in the preamble hereto.


“Borrower Materials” as defined
in Section 5.1(h).


“Business
Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the State of California and, if such
day relates to any LIBO Rate Loan, means any such day on which dealings in
Dollar deposits are conducted by and between banks in the London interbank eurodollar market.


“Capital Lease”
means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is
or should be accounted for as a capital lease on the balance sheet of that
Person.


“Certificate re Non-Bank Status”
means a certificate substantially in the form of Exhibit F.


“Change
of Control” means, at any time, (a) any Person or “group”
(within the meaning of Rules 13d-3 and 13d-5 under the Exchange
Act) (i) shall have acquired beneficial ownership of 40% or more on a fully
diluted basis of the voting and/or economic interest in the Equity Interests of
the Borrower or (ii) shall have obtained the power (whether or not exercised)
to elect a majority of the members of the board of directors (or similar
governing body) of the Borrower; (b) the majority of the seats (other than
vacant seats) on the board of directors (or similar governing body) of the
Borrower cease to be occupied by Persons who either (i) were members of the
board of directors of the Borrower on the Closing Date or (ii) were nominated
for election by the board of directors of the Borrower, a majority of whom were
directors on the Closing Date or whose election or nomination for election was
previously approved by a majority of such directors.


“Closing Date”
means the date on which the Loans are made.



 3
 









“Closing Date Certificate”
means a Closing Date Certificate substantially in the form of Exhibit G.


“Commitment” means
the commitment of a Lender to make or otherwise fund a Loan and “Commitments” means such commitments of all
Lenders in the aggregate.  The amount of
each Lender’s Commitment is set forth on Appendix A-1 or in the applicable
Assignment Agreement, subject to any adjustment or reduction pursuant to the
terms and conditions hereof.  The
aggregate amount of the Commitments as of the Closing Date is $500,000,000.


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


“Consolidated Adjusted EBITDA”
means, for any period, an amount determined for the Borrower and its
Subsidiaries on a consolidated basis equal to (i) Consolidated Net Income, plus,
to the extent reducing Consolidated Net Income, the sum, without duplication,
of amounts for (a) Consolidated Interest Expense, (b) provisions for
taxes based on income, (c) total depreciation expense, (d) total
amortization expense, and (e) other non-cash employee compensation
and other charges reducing Consolidated Net Income (excluding any such non-cash
charge to the extent that it represents an accrual or reserve for potential
cash charge in any future period or amortization of a prepaid cash charge that
was paid in a prior period), minus (ii) other non-cash gains increasing
Consolidated Net Income for such period (excluding any such non-cash gain
to the extent it represents the reversal of an accrual or reserve for potential
cash gain in any prior period).


“Consolidated Interest Expense”
means, for any period, total interest expense (including that portion
attributable to Capital Leases in accordance with GAAP and capitalized
interest) of the Borrower and its Subsidiaries on a consolidated basis with
respect to all outstanding Indebtedness of the Borrower and its Subsidiaries.


“Consolidated Net Income”
means, for any period, (i) the net income (or loss) of the Borrower and
its Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP, minus
(ii) any net extraordinary gains and plus (iii) any net
extraordinary losses.


“Consolidated Total Debt”
means, as at any date of determination, the aggregate stated balance sheet
amount of all Indebtedness of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with GAAP.


“Contractual Obligation”
means, as applied to any Person, any provision of any Security issued by that
Person or of any indenture, mortgage, deed of trust, contract, undertaking,
agreement or other instrument to which that Person is a party or by which it or
any of its properties is bound or to which it or any of its properties is
subject.


“Conversion/Continuation Date”
means the effective date of a continuation or conversion, as the case may be,
as set forth in the applicable Conversion/Continuation Notice.



 4
 









“Conversion/Continuation Notice”
means a Conversion/Continuation Notice substantially in the form of
Exhibit A-2.


“Credit Document”
means any of this Agreement, the Notes, if any, and all other documents,
instruments or agreements executed and delivered by the Borrower for the
benefit of the Agent or any Lender in connection herewith.


“Credit Extension”
means the making of a Loan.


“Default” means a
condition or event that, after notice or lapse of time or both, would constitute
an Event of Default.


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


“Eligible Assignee”
means (i) any Lender, any Affiliate of any Lender and any Related Fund (any two
or more Related Funds being treated as a single Eligible Assignee for all
purposes hereof), and (ii) any commercial bank, insurance company,
investment or mutual fund or other entity that is an “accredited investor” (as
defined in Regulation D under the Securities Act) which (A) extends credit
or buys loans and (B) is approved by
the Agent and, unless an Event of Default has occurred and is continuing at the
time any assignment is effected in accordance with Section 9.6, the Borrower,
each such approval not to be unreasonably withheld or delayed; provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.


“Employee Benefit Plan”
means any “employee benefit plan” as defined in Section 3(3) of ERISA which is
or was sponsored, maintained or contributed to by, or required to be
contributed by, the Borrower, any of its Subsidiaries or any of their
respective ERISA Affiliates.


“Environmental Claim”
means any investigation, notice, notice of violation, claim, action, suit,
proceeding, demand, abatement order or other order or directive (conditional or
otherwise), by any Governmental Authority or any other Person, arising (i)
pursuant to or in connection with any actual or alleged violation of any
Environmental Law; (ii) in connection with any Hazardous Material or any actual
or alleged Hazardous Materials Activity; or (iii) in connection with any actual
or alleged damage, injury, threat or harm to health, safety, natural resources
or the environment.


“Environmental Laws”
means any and all current or future foreign or domestic, federal or state (or
any subdivision of either of them), statutes, ordinances, orders, rules,
regulations, judgments, Governmental Authorizations, or any other requirements
of Governmental Authorities relating to (i) environmental matters,
including those relating to any Hazardous Materials Activity; (ii) the
generation, use, storage, transportation or disposal of Hazardous Materials; or
(iii) occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare, in any manner
applicable to the Borrower or any of its Subsidiaries or any Facility.



 5
 









“Equity Interests”
means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation), including
partnership interests and membership interests, and any and all warrants,
rights or options to purchase or other arrangements or rights to acquire any of
the foregoing.


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


“ERISA Affiliate”
means, as applied to any Person, (i) any corporation which is a member of
a controlled group of corporations within the meaning of Section 414(b) of the
Internal Revenue Code of which that Person is a member; (ii) any trade or
business (whether or not incorporated) which is a member of a group of trades
or businesses under common control within the meaning of Section 414(c) of the
Internal Revenue Code of which that Person is a member; and (iii) any member of
an affiliated service group within the meaning of Section 414(m) or (o) of the
Internal Revenue Code of which that Person, any corporation described in clause
(i) above or any trade or business described in clause (ii) above is a member.


“ERISA Event” means
(i) a “reportable event” within the meaning of Section 4043 of ERISA and the
regulations issued thereunder with respect to any Pension Plan (excluding those
for which the provision for 30-day notice to the PBGC has been waived by
regulation); (ii) the failure to meet the minimum funding standard of Section
412 of the Internal Revenue Code with respect to any Pension Plan (whether or
not waived in accordance with Section 412(d) of the Internal Revenue Code) or
the failure to make by its due date a required installment under Section 412(m)
of the Internal Revenue Code with respect to any Pension Plan or the failure to
make any required contribution to a Multiemployer Plan; (iii) the provision by
the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA
of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by the Borrower, any
of its Subsidiaries or any of their respective ERISA Affiliates from any
Pension Plan with two or more contributing sponsors or the termination of any
such Pension Plan resulting in liability to the Borrower, any of its
Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or
4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which might
constitute grounds under ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (vi) the imposition of liability on
the Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application
of Section 4212(c) of ERISA; (vii) the withdrawal of the Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability therefore, or the
receipt by the Borrower, any of its Subsidiaries or any of their respective
ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that
it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could reasonably be expected
to give rise to the imposition on the Borrower, any of its Subsidiaries or any
of their respective ERISA Affiliates of fines, penalties, taxes or related
charges under Chapter 43 of the Internal Revenue Code or under Section 409,
Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee




 6
 









Benefit Plan; or (ix)
receipt from the Internal Revenue Service of final, no-appealable notice of the
failure of any Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Section 401(a) of the Internal Revenue Code) to qualify under
Section 401(a) of the Internal Revenue Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code.


“Event of Default”
means each of the conditions or events set forth in Section 7.1.


“Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.


“Existing Multicurrency Credit
Agreement” means the Credit Agreement (Multicurrency) dated
as of October 30, 2000, between the Borrower and Bank of America, N.A., as
amended to the date hereof.


“Exposure” means,
with respect to any Lender, as of any date of determination, the outstanding
principal amount of the Loans of such Lender; provided, at any time
prior to the making of the Loans, the Exposure of any Lender shall be equal to
such Lender’s Commitment.


“Facility” means
any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated or used
by the Borrower or any of its Subsidiaries or any of their respective
predecessors or Affiliates.


“Federal Funds Effective Rate”
means for any day, the rate per annum (expressed, as a decimal, rounded
upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided, (i) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged to
the Agent, in its capacity as a Lender, on such day on such transactions as
determined by the Agent.


“Financial Officer Certification”
means, with respect to the financial statements for which such certification is
required, the certification of the chief financial officer of the Borrower that
such financial statements fairly present, in all material respects, the
financial condition of the Borrower and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end
adjustments.


“Fiscal Quarter”
means a fiscal quarter of any Fiscal Year.


“Fiscal Year” means
the fiscal year of the Borrower and its Subsidiaries ending the last Sunday of
May of each calendar year.


“Funding Notice”
means a notice substantially in the form of Exhibit A-1.


 



 7
 









“GAAP” means,
subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date
of determination thereof.


“Governmental Authority”
means any federal, state, municipal, national or other government, governmental
department, commission, board, bureau, court, agency or instrumentality or
political subdivision thereof or any entity, officer or examiner exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether associated with
a state of the United States, the United States, or a foreign entity or
government.


“Governmental Authorization”
means any permit, license, authorization, plan, directive, consent order or
consent decree of or from any Governmental Authority.


“GSCP” as defined in the preamble hereto.


“Hazardous Materials”
means any chemical, material or substance, exposure to which is prohibited,
limited or regulated by any Governmental Authority or which may or could pose a
hazard to the health and safety of the owners, occupants or any Persons in the
vicinity of any Facility or to the indoor or outdoor environment.


“Hazardous Materials Activity”
means any past, current, proposed or threatened activity, event or occurrence
involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release,
discharge, placement, generation, transportation, processing, construction, treatment,
abatement, removal, remediation, disposal, disposition or handling of any
Hazardous Materials, and any corrective action or response action with respect
to any of the foregoing.


“Historical Financial Statements”
means as of the Closing Date, (i) the audited financial statements of the
Borrower and its Subsidiaries, for the Fiscal Years ending May 30, 2004, May
29, 2005 and May 28, 2006, consisting of balance sheets and the related
consolidated statements of income, stockholders’ equity and cash flows for such
Fiscal Years, and (ii) the unaudited financial statements of the Borrower and
its Subsidiaries as at the most recent Fiscal Quarter ending at least 60 days
prior to the Closing Date, consisting of a balance sheet and the related
consolidated statements of income, stockholders’ equity and cash flows for the
three-, six- or nine-month period, as applicable, ending on
such date, and, in the case of clauses (i) and (ii), certified by the chief
financial officer of the Borrower that they fairly present, in all material
respects, the financial condition of the Borrower and its Subsidiaries as at
the dates indicated and the results of their operations and their cash flows
for the periods indicated, subject to changes resulting from audit and normal
year-end adjustments.


“Increased-Cost Lenders”
as defined in Section 2.18.


“Indebtedness”, as
applied to any Person, means, without duplication, (i) all indebtedness
for borrowed money; (ii) that portion of obligations with respect to
Capital Leases that is properly classified as a liability on a balance sheet in
conformity with GAAP; (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed
money; (iv) any obligation owed for all or any part of the deferred 



 8
 









purchase price of
property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of
incurrence of the obligation in respect thereof or (b) evidenced by a note or
similar written instrument; (v) all indebtedness secured by any Lien on
any property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person; (vi) the face amount of any
letter of credit issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings; (vii) the direct or
indirect guaranty, endorsement (otherwise than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or
sale with recourse by such Person of the obligation of another; (viii) any
obligation of such Person the primary purpose or intent of which is to provide
assurance to an obligee that the obligation of the obligor thereof will be paid
or discharged, or any agreement relating thereto will be complied with, or the
holders thereof will be protected (in whole or in part) against loss in respect
thereof; (ix) any liability of such Person for an obligation of another through
any agreement (contingent or otherwise) (a) to purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to provide funds
for the payment or discharge of such obligation (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise) or (b) to
maintain the solvency or any balance sheet item, level of income or financial
condition of another if, in the case of any agreement described under
subclauses (a) or (b) of this clause (ix), the primary purpose or intent
thereof is as described in clause (viii) above; and (x) all obligations of such
Person in respect of any exchange traded or over the counter derivative
transaction.


“Indemnified Liabilities”
means, collectively, any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever (including the reasonable fees and
disbursements of counsel for Indemnitees in connection with any investigative,
administrative or judicial proceeding or hearing commenced or threatened by any
Person, whether or not any such Indemnitee shall be designated as a party or a
potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct, indirect or consequential and
whether based on any federal, state or foreign laws, statutes, rules or
regulations (including securities and commercial laws, statutes, rules or
regulations and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or asserted against
any such Indemnitee, in any manner relating to or arising out of (i) this
Agreement or the other Credit Documents or the transactions contemplated hereby
or thereby (including the Lenders’ agreement to make Credit Extensions or the
use or intended use of the proceeds thereof, or any enforcement of any of the
Credit Documents); or (ii) the commitment letter (and any related fee letter)
delivered by the Agent or any Lender to the Borrower with respect to the
transactions contemplated by this Agreement.


“Indemnitee” as
defined in Section 9.3.


“Installment” as defined in Section 2.9.


“Interest Coverage Ratio”
means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated
Adjusted EBITDA for the four-Fiscal Quarter period then ended to (ii)
Consolidated Interest Expense for such four-Fiscal Quarter period.


 



 9
 









“Interest Payment Date”
means with respect to (i) any Loan that is a Base Rate Loan, each
March 31, June 30, September 30 and December 31 of each
year, commencing on the first such date to occur after the Closing Date and the
final maturity date of such Loan; and (ii) any Loan that is a LIBO Rate Loan,
the last day of each Interest Period applicable to such Loan.


“Interest Period”
means, in connection with a LIBO Rate Loan, an interest period of one, two,
three or six months (i) initially, commencing on the Closing Date or
Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter,
commencing on the day on which the immediately preceding Interest Period
expires; provided that:


(a)
          whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day,
provided, however, that, if such extension would cause the last
day of such Interest Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next preceding Business
Day;


(b)           whenever the first
day of any Interest Period occurs on a day of an initial calendar month for
which there is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month; and


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


“Interest Rate Determination Date”
means, with respect to any Interest Period, the date that is two Business Days
prior to the first day of such Interest Period.


“Internal Revenue Code”
means the Internal Revenue Code of 1986, as amended to the date hereof and from
time to time hereafter, and any successor statute.


“Lender” means each
financial institution listed on the signature pages hereto as a Lender, and any
other Person that becomes a party hereto pursuant to an Assignment Agreement.


“Leverage Ratio”
means the ratio as of the last day of any Fiscal Quarter of
(i) Consolidated Total Debt as of such day to (ii) Consolidated
Adjusted EBITDA for the four-Fiscal Quarter period ending on such date.


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


 



 10















approximate amount of the LIBO Rate Loan
being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London
branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to
the commencement of such Interest Period.


“LIBO Rate Loan”
means a Loan bearing interest at a rate determined by reference to the LIBO
Rate.


“Lien” means (i)
any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement, and any lease or
license in the nature thereof) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing and (ii) in the
case of Securities, any purchase option, call or similar right of a third party
with respect to such Securities.


“Loan” means a Loan
made by a Lender to the Borrower pursuant to Section 2.1(a).


“Margin Stock” as
defined in Regulation U of the Board of Governors as in effect from time
to time.


“Material Adverse Effect”
means a material adverse effect on and/or material adverse developments with
respect to (i) the business, financial condition or operations, of the Borrower
and its Subsidiaries taken as a whole; (ii) the ability of the Borrower to
fully and timely perform its Obligations; (iii) the legality, validity, binding
effect or enforceability against the Borrower of a Credit Document; or (iv) the
rights, remedies and benefits available to, or conferred upon, the Agent or any
Lender under any Credit Document.


“Material Subsidiary” means each Subsidiary now existing or hereafter acquired or formed, and
each successor thereto, which accounts for more than 5% of (i) the Consolidated
gross revenues of the Borrower and its Subsidiaries, (ii) Consolidated Adjusted
EBITDA, or (iii) the consolidated assets of the Borrower and its Subsidiaries,
in each case, as of the last day of the most recently completed fiscal quarter
of the Borrower with respect to which, pursuant to clauses (a) or (b) of
Section 5.1, financial statements have been, or are required to have been,
delivered by the Borrower.


“Maturity Date”
means the earlier of (i) the fifth anniversary of the Closing Date, and (ii)
the date that all Loans shall become due and payable in full hereunder, whether
by acceleration or otherwise.


“Moody’s” means
Moody’s Investor Services, Inc.


“Multiemployer Plan”
means any Employee Benefit Plan which is a “multiemployer plan” as defined in
Section 3(37) of ERISA.


“NAIC” means The
National Association of Insurance Commissioners, and any successor thereto.


 



 11
 









“Non-Consenting Lender” as
defined in Section 2.18.


“Nonpublic Information” means
information which has not been disseminated in a manner making it available to
investors generally, within the meaning of Regulation FD.


“Non-US Lender”
as defined in Section 2.16(c).


“Note” means a
promissory note in the form of Exhibit B, as it may be amended,
supplemented or otherwise modified from time to time.


“Notice” means a
Funding Notice or a Conversion/Continuation Notice.


“Obligations” means
all obligations of every nature of the Borrower under any Credit Document,
including obligations from time to time owed to the Agent (including any former
Agent), the Lenders or any of them, whether for principal, interest (including
interest which, but for the filing of a petition in bankruptcy with respect to
the Borrower, would have accrued on any Obligation, whether or not a claim is
allowed against the Borrower for such interest in the related bankruptcy
proceeding), fees, expenses, indemnification or otherwise.


“PBGC” means the
Pension Benefit Guaranty Corporation or any successor thereto.


“Pension Plan”
means any Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.


“Person” means and
includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships,
joint stock companies, joint ventures, associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other organizations, whether
or not legal entities, and Governmental Authorities.


“Platform” as defined in Section
5.1(h).


“Principal Office”
means, for the Agent, such Person’s “Principal Office” as set forth on Appendix
B, or such other office or office of a third party or sub-agent, as appropriate,
as such Person may from time to time designate in writing to the Borrower, the
Agent and each Lender.


“Pro Rata Share” of
any Lender means the percentage obtained by dividing (a) the Exposure of
such Lender by (b) the aggregate Exposure of all Lenders.


“Public Debt Rating” means, as of any date, the rating that has
been most recently announced by either S&P or Moody’s, as the case may be,
for any class of non-credit enhanced long-term senior unsecured debt
issued by the Borrower or, if any such rating agency shall have issued more
than one such rating, the lowest such rating issued by such rating agency.  For purposes of the foregoing, (a) if
only one of S&P and Moody’s shall have in effect a Public Debt Rating, the
Applicable Margin shall be determined by reference to the available rating;
(b) if neither S&P nor Moody’s shall have in effect a Public Debt
Rating, the Applicable Margin 



 12
 









will
be set in accordance with Level 5 under the definition of “Applicable
Margin”; (c) if the ratings established by S&P and Moody’s shall fall
within different levels, the Applicable Margin shall be based upon the higher
rating unless the such ratings differ by two or more levels, in which case the
applicable level will be deemed to be one level above the lower of such levels;
(d) if any rating established by S&P or Moody’s shall be changed, such
change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (e) if
S&P or Moody’s shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or Moody’s, as
the case may be, shall refer to the then equivalent rating by S&P or Moody’s,
as the case may be.


“Public Lender” as defined in
Section 5.1(h).


“Register” as
defined in Section 2.4(b).


“Regulation D”
means Regulation D of the Board of Governors, as in effect from time to
time.


“Regulation FD” means Regulation
FD as promulgated by the US Securities and Exchange Commission under the
Securities Act and Exchange Act as in effect from time to time.


“Related Fund”
means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and that is managed or advised
by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.


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


“Release” means any
release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any
Hazardous Material into the indoor or outdoor environment (including the
abandonment or disposal of any barrels, containers or other closed receptacles
containing any Hazardous Material), including the movement of any Hazardous
Material through the air, soil, surface water or groundwater.


“Replacement Lender”
as defined in Section 2.18.


“Requisite Lenders”
means one or more Lenders having or holding Exposure and representing more than
50% of the Exposure of all Lenders.


“S&P” means
Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.


“Securities” means
any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement
or arrangement, options, warrants, bonds, debentures, notes, or other evidences
of indebtedness, secured or unsecured, convertible, subordinated or otherwise,
or in general any instruments commonly known as “securities” or any
certificates of interest, shares or participations in 



 13
 









temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.


“Securities Act”
means the Securities Act of 1933, as amended from time to time, and any
successor statute.


“Subsidiary” means,
with respect to any Person, any corporation, partnership, limited liability
company, association, joint venture or other business entity of which more than
50% of the total voting power of shares of stock or other ownership interests
entitled (without regard to the occurrence of any contingency) to vote in the
election of the Person or Persons (whether directors, managers, trustees or
other Persons performing similar functions) having the power to direct or cause
the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof; provided, in
determining the percentage of ownership interests of any Person controlled by
another Person, no ownership interest in the nature of a “qualifying share” of
the former Person shall be deemed to be outstanding.


“Tax” means any
present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature and whatever called, by whomsoever, on whomsoever
and wherever imposed, levied, collected, withheld or assessed; provided,
“Tax on the overall net income” of a Person shall be construed as a reference
to a tax imposed by the jurisdiction in which that Person is organized or in
which that Person’s applicable principal office (and/or, in the case of a Lender,
its lending office) is located or in which that Person (and/or, in the case of
a Lender, its lending office) is deemed to be doing business on all or part of
the net income, profits or gains (whether worldwide, or only insofar as such
income, profits or gains are considered to arise in or to relate to a
particular jurisdiction, or otherwise) of that Person (and/or, in the case of a
Lender, its applicable lending office), including branch profits tax, minimum
tax (in lieu of net income tax) and franchise tax imposed by such jurisdiction.


“Terminated Lender”
as defined in Section 2.18.


“Type of Loan”
means a Base Rate Loan or a LIBO Rate Loan.


“UCC” means the
Uniform Commercial Code (or any similar or equivalent legislation) as in effect
in any applicable jurisdiction.


“U.S. Lender” as defined in
Section 2.16(c).


1.2.   Accounting
Terms.  Except as otherwise expressly
provided herein, all accounting terms not otherwise defined herein shall have
the meanings assigned to them in conformity with GAAP.  Financial statements and other information
required to be delivered by the Borrower to the Lenders pursuant to Section
5.1(a) and 5.1(b) shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation
statements provided for in Section 5.1(d), if applicable).  Subject to the foregoing, calculations in
connection with the definitions, covenants and other provisions hereof shall
utilize accounting principles and policies in conformity with those used to
prepare the Historical Financial Statements.


 



 14
 









1.3.   Interpretation,
etc.  Any of the terms defined herein
may, unless the context otherwise requires, be used in the singular or the
plural, depending on the reference. 
References herein to any Section, Appendix or Exhibit shall be to a
Section, an Appendix or an Exhibit, as the case may be, hereof unless otherwise
specifically provided.  The use herein of
the word “include” or “including”, when following any general statement, term
or matter, shall not be construed to limit such statement, term or matter to
the specific items or matters set forth immediately following such word or to
similar items or matters, whether or not non-limiting language (such as “without
limitation” or “but not limited to” or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or
matters that fall within the broadest possible scope of such general statement,
term or matter.  The terms lease and
license shall include sub-lease and sub-license, as applicable.


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


SECTION 2.   LOANS


2.1   Loans.


(a)   Commitments.  Subject to the terms and conditions hereof,
each Lender severally agrees to make, on the Closing Date, a Loan to the
Borrower in an amount equal to such Lender’s Commitment.


The Borrower may make only one borrowing under the
Commitment which shall be on the Closing Date. 
Any amount borrowed under this Section 2.1(a) and subsequently repaid or
prepaid may not be reborrowed.  Subject
to Sections 2.10(a) and 2.11, all amounts owed hereunder shall be paid in full
no later than the Maturity Date.  Each
Lender’s Commitment shall terminate immediately and without further action on
the Closing Date after giving effect to the funding of such Lender’s Commitment
on such date.


(b)   Borrowing
Mechanics.


(i)  
The Borrower shall deliver to the Agent a fully executed Funding Notice
no later than three days prior to the Closing Date.  Promptly upon receipt by the Agent of such
Funding Notice, the Agent shall notify each Lender of the proposed borrowing.


(ii)  
Each Lender shall make its Loan available to the Agent not later than
11:00 a.m. on the Closing Date, by wire transfer of same day funds in Dollars,
at the Principal Office designated by the Agent.  Upon satisfaction or waiver of the conditions
precedent specified herein, the Agent shall make the proceeds of the Loans
available to the Borrower on the Closing Date by causing an amount of same day
funds in Dollars equal to the proceeds of all such Loans received by the Agent
from the Lenders to be credited to the account of the Borrower at the Principal
Office designated by the Agent or to such other account as may be designated in
writing to the Agent by the Borrower.


 



 15
 









2.2.   Pro Rata Shares;
Availability of Funds.


(a)   Pro
Rata Shares.  All Loans shall be made
by the Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that no Lender shall be responsible for any default
by any other Lender in such other Lender’s obligation to make a Loan requested
hereunder nor shall any Commitment of any Lender be increased or decreased as a
result of a default by any other Lender in such other Lender’s obligation to
make a Loan requested hereunder.


(b)   Availability
of Funds.  Unless the Agent shall
have been notified by any Lender prior to the Closing Date that such Lender
does not intend to make available to the Agent the amount of such Lender’s Loan
requested on the Closing Date, the Agent may assume that such Lender has made
such amount available to the Agent on the Closing Date and the Agent may, in
its sole discretion, but shall not be obligated to, make available to the
Borrower a corresponding amount on the Closing Date.  If such corresponding amount is not in fact
made available to the Agent by such Lender, the Agent shall be entitled to
recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from the Closing Date until the date such amount
is paid to the Agent, at the customary rate set by the Agent for the correction
of errors among banks for three Business Days and thereafter at the Base
Rate.  If such Lender does not pay such corresponding
amount forthwith upon the Agent’s demand therefor, the Agent shall promptly
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Agent together with interest thereon, for each day from the
Closing Date until the date such amount is paid to the Agent, at the rate
payable hereunder for Base Rate Loans. 
Nothing in this Section 2.2(b) shall be deemed to relieve any Lender
from its obligation to fulfill its Commitments hereunder or to prejudice any
rights that the Borrower may have against any Lender as a result of any default
by such Lender hereunder.


2.3.   Use of Proceeds.  The proceeds of the Loans shall
be applied by the Borrower to refinance debt incurred to repurchase shares of
capital stock of the Borrower, and to pay related fees and expenses.  No portion of the proceeds of any Credit
Extension shall be used in any manner that causes or might cause such Credit
Extension or the application of such proceeds to violate Regulation T,
Regulation U or Regulation X of the Board of Governors or any other
regulation thereof or to violate the Exchange Act.


2.4.   Evidence of Debt;
Register; Lenders’ Books and Records; Notes.


(a)   Lenders’
Evidence of Debt.  Each Lender shall
maintain on its internal records an account or accounts evidencing the
Obligations of the Borrower to such Lender, including the amounts of the Loans
made by it and each repayment and prepayment in respect thereof.  Any such recordation shall be conclusive and
binding on the Borrower, absent manifest error; provided, that the
failure to make any such recordation, or any error in such recordation, shall
not affect the Borrower’s Obligations in respect of any Loans; and provided
further, in the event of any inconsistency between the Register and any
Lender’s records, the recordations in the Register shall govern.


(b)   Register.  The Agent (or its agent or sub-agent
appointed by it) shall maintain at the Principal Office a register for the
recordation of the names and addresses of the Lenders and the Loans of each
Lender from time to time (the “Register”).  The Register
shall be available for inspection by the Borrower or any Lender (with respect
to any entry relating to such 



 16
 









Lender’s
Loans) at any reasonable time and from time to time upon reasonable prior
notice.  The Agent shall record, or shall
cause to be recorded, in the Register the Loans in accordance with the
provisions of Section 9.6, and each repayment or prepayment in respect of the
principal amount of the Loans, and any such recordation shall be conclusive and
binding on the Borrower and each Lender, absent manifest error; provided,
failure to make any such recordation, or any error in such recordation, shall
not affect the Borrower’s Obligations in respect of any Loan.  The Borrower hereby designates Bank of
America to serve as the Borrower’s agent solely for purposes of maintaining the
Register as provided in this Section 2.4, and the Borrower hereby agrees that,
to the extent Bank of America serves in such capacity, Bank of America and its
officers, directors, employees, agents, sub-agents and affiliates shall
constitute “Indemnitees.”


(c)   Notes.  If so requested by any Lender by written
notice to the Borrower (with a copy to the Agent) at least two Business Days
prior to the Closing Date, the Borrower shall execute and deliver to such
Lender (and/or, if applicable and if so specified in such notice, to any Person
who is an assignee of such Lender pursuant to Section 9.6) on the Closing Date
a Note or Notes to evidence such Lender’s Loan.


2.5.   Interest on Loans.


(a)  
Except as otherwise set forth herein, each Loan shall bear interest on
the unpaid principal amount thereof from the date made through repayment
(whether by acceleration or otherwise) thereof as follows:


(i)  
if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or


(ii)  
if a LIBO Rate Loan, at the LIBO Rate plus the Applicable Margin.


(b)  
The basis for determining the rate of interest with respect to any Loan,
and the Interest Period with respect to any LIBO Rate Loan, shall be selected
by the Borrower and notified to the Agent and the Lenders pursuant to the
applicable Funding Notice or Conversion/Continuation Notice, as the case may
be.  If on any day a Loan is outstanding
with respect to which a Funding Notice or Conversion/Continuation Notice has
not been delivered to the Agent in accordance with the terms hereof specifying
the applicable basis for determining the rate of interest, then for that day
such Loan shall be a Base Rate Loan.


(c)  
In connection with LIBO Rate Loans there shall be no more than five (5)
Interest Periods outstanding at any time. 
In the event the Borrower fails to specify between a Base Rate Loan or a
LIBO Rate Loan in the applicable Funding Notice or Conversion/Continuation
Notice, such Loan (if outstanding as a LIBO Rate Loan) will be automatically
converted into a Base Rate Loan on the last day of the then-current
Interest Period for such Loan (or if outstanding as a Base Rate Loan will
remain as, or (if not then outstanding) will be made as, a Base Rate
Loan).  In the event the Borrower fails
to specify an Interest Period for any LIBO Rate Loan in the applicable Funding
Notice or Conversion/Continuation Notice, the Borrower shall be deemed to have
selected an Interest Period of one month. 
As soon as practicable after 9:00 a.m. on each Interest Rate
Determination Date, the Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) the interest
rate that shall apply to the LIBO Rate Loans for which an interest rate is then




 17
 









being
determined for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to the Borrower and
each Lender.


(d)  
Interest payable pursuant to Section 2.5(a) shall be computed (i) in the
case of Base Rate Loans on the basis of a 365-day or 366-day year,
as the case may be, and (ii) in the case of LIBO Rate Loans, on the basis of a
360-day year, in each case for the actual number of days elapsed in the
period during which it accrues.  In
computing interest on any Loan, the date of the making of such Loan or the
first day of an Interest Period applicable to such Loan or, with respect to a
Loan, the last Interest Payment Date with respect to such Loan or, with respect
to a Base Rate Loan being converted from a LIBO Rate Loan, the date of
conversion of such LIBO Rate Loan to such Base Rate Loan, as the case may be,
shall be included, and the date of payment of such Loan or the expiration date
of an Interest Period applicable to such Loan or, with respect to a Base Rate
Loan being converted to a LIBO Rate Loan, the date of conversion of such Base
Rate Loan to such LIBO Rate Loan, as the case may be, shall be excluded; provided,
if a Loan is repaid on the same day on which it is made, one day’s interest
shall be paid on that Loan.


(e)  
Except as otherwise set forth herein, interest on each Loan (i) shall
accrue on a daily basis and shall be payable in arrears on each Interest
Payment Date with respect to interest accrued on and to each such payment date;
(ii) shall accrue on a daily basis and shall be payable in arrears upon any
prepayment of that Loan, whether voluntary or mandatory, to the extent accrued
on the amount being prepaid; and (iii) shall accrue on a daily basis and shall
be payable in arrears at maturity of the Loans, including final maturity of the
Loans; provided, however, with respect to any voluntary prepayment of a
Base Rate Loan, accrued interest shall instead be payable on the applicable
Interest Payment Date.


2.6.   Conversion/Continuation.


(a)  
Subject to Section 2.14 and so long as no Default or Event of Default
shall have occurred and then be continuing, the Borrower shall have the option:


(i)  
to convert at any time all or any part of any Loan equal to $5,000,000
and integral multiples of $1,000,000 in excess of that amount from one Type of
Loan to another Type of Loan; provided, a LIBO Rate Loan may only be
converted on the expiration of the Interest Period applicable to such LIBO Rate
Loan unless the Borrower shall pay all amounts due under Section 2.14 in
connection with any such conversion; or


(ii)  
upon the expiration of any Interest Period applicable to any LIBO Rate
Loan, to continue all or any portion of such Loan equal to $5,000,000 and
integral multiples of $1,000,000 in excess of that amount as a LIBO Rate Loan.


(b)  
The Borrower shall deliver a Conversion/Continuation Notice to the Agent
no later than 11:00 a.m. at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to a Base Rate Loan) and at least
three Business Days in advance of the proposed conversion/continuation date (in
the case of a conversion to, or a continuation of, a LIBO Rate Loan).  In lieu of delivering a written
Conversion/Continuation Notice, the Borrower may give the Agent telephonic
notice by the required time of any proposed 



 18
 









conversion/continuation;
provided each such notice shall be promptly confirmed in writing by
delivery of a Conversion/Continuation Notice to the Agent on or before the
applicable date of the continuation/conversion. 
Neither the Agent nor any Lender shall incur any liability to the
Borrower in acting upon any telephonic notice referred to above that the Agent
believes in good faith to have been given by a duly authorized officer or other
person authorized on behalf of the Borrower or for otherwise acting in good
faith.  Except as otherwise provided
herein, a Conversion/Continuation Notice for conversion to, or continuation of,
any LIBO Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable
on and after the related Interest Rate Determination Date, and the Borrower
shall be bound to effect a conversion or continuation in accordance therewith.


2.7.   Default Interest.  Upon the occurrence and during the
continuance of an Event of Default under Section 7.1(a), the principal amount
of all Loans outstanding and, to the extent permitted by applicable law, any
interest payments on the Loans or any fees or other amounts owed hereunder,
shall thereafter bear interest (including post-petition interest in any
proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable on demand at a rate that is 2% per annum in excess of the interest rate
otherwise payable hereunder with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable hereunder for Base Rate Loans); provided,
in the case of LIBO Rate Loans, upon the expiration of the Interest Period in
effect at the time any such increase in interest rate is effective such LIBO
Rate Loans shall thereupon become Base Rate Loans and shall thereafter bear
interest payable upon demand at a rate which is 2% per annum in excess of the
interest rate otherwise payable hereunder for Base Rate Loans.  Payment or acceptance of the increased rates
of interest provided for in this Section 2.7 is not a permitted alternative to
timely payment and shall not constitute a waiver of any Event of Default or
otherwise prejudice or limit any rights or remedies of the Agent or any Lender.


2.8.   Fees.


The Borrower agrees to pay
to the Agent such fees in the amounts and at the times separately agreed upon
in that certain letter dated as of July 2, 2007 between the Borrower and the
Agent.


2.9.   Scheduled
Payments/Commitment Reductions.  The principal amounts of the Loans shall be
repaid in consecutive quarterly installments (each, an “Installment”) in the aggregate amounts set
forth below on the four quarterly scheduled Interest Payment Dates applicable
to Loans, commencing September 30, 2007:




	
  Amortization Date

  	
   

  	
  Installments

  
	
  September 30,
  2007

  	
   

  	
  $15,625,000

  
	
  December 31,
  2007

  	
   

  	
  $15,625,000

  
	
  March 31, 2008

  	
   

  	
  $15,625,000

  
	
  June 30, 2008

  	
   

  	
  $15,625,000

  
	
  September 30,
  2008

  	
   

  	
  $15,625,000

  
	
  December 31,
  2008

  	
   

  	
  $15,625,000

  






 



 19
 









 




	
  Amortization Date

  	
   

  	
  Installments

  
	
  March 31, 2009

  	
   

  	
  $15,625,000

  
	
  June 30, 2009

  	
   

  	
  $15,625,000

  
	
  September 30,
  2009

  	
   

  	
  $15,625,000

  
	
  December 31,
  2009

  	
   

  	
  $15,625,000

  
	
  March 31, 2010

  	
   

  	
  $15,625,000

  
	
  June 30, 2010

  	
   

  	
  $15,625,000

  
	
  September 30,
  2010

  	
   

  	
  $15,625,000

  
	
  December 31,
  2010

  	
   

  	
  $15,625,000

  
	
  March 31, 2011

  	
   

  	
  $15,625,000

  
	
  June 30, 2011

  	
   

  	
  $15,625,000

  
	
  September 30,
  2011

  	
   

  	
  $62,500,000

  
	
  December 31,
  2011

  	
   

  	
  $62,500,000

  
	
  March 31, 2012

  	
   

  	
  $62,500,000

  
	
  June 30, 2012

  	
   

  	
  $62,500,000

  






 


Notwithstanding the foregoing, (x) such Installments
shall be reduced in connection with any voluntary prepayments of the Loans in
accordance with Sections 2.10 and 2.11, as applicable; and (y) the
Loans, together with all other amounts owed hereunder with respect thereto,
shall, in any event, be paid in full no later than the Maturity Date.


2.10.   Voluntary
Prepayments/Commitment Reductions.


(a)  
Any time and from time to time (A) with respect to Base Rate Loans, the
Borrower may prepay any such Loans on any Business Day in whole or in part, in
an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000
in excess of that amount; and (B) with respect to LIBO Rate Loans, the Borrower
may prepay any such Loans on any Business Day in whole or in part in an
aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess of that amount.


(b)  
All such prepayments shall be made (A) upon not less than one Business
Day’s prior written or telephonic notice in the case of Base Rate Loans; and
(B) upon not less than three Business Days’ prior written or telephonic notice
in the case of LIBO Rate Loans; in each case given to the Agent by 11:00 a.m.
on the date required and, if given by telephone, promptly confirmed in writing
to the Agent (and the Agent will promptly transmit such telephonic or original
notice for Loans by telefacsimile or telephone to each Lender).  Upon the giving of any such notice, the
principal amount of the Loans specified in such notice shall become due and
payable on the prepayment date specified therein.  Any such voluntary prepayment shall be
applied as specified in Section 2.11.


 



 20















2.11.   Application of
Prepayments.


Any prepayment of Loans
shall be applied (a) first to Base Rate Loans to the full extent thereof before
application to LIBO Rate Loans, in each case in a manner which minimizes the
amount of any payments required to be made by the Borrower pursuant to Section
2.14(c) and (b) to the Installments thereof in inverse order of maturity.


2.12.   General Provisions
Regarding Payments.


(a)  
All payments by the Borrower of principal, interest, fees and other
Obligations shall be made in Dollars in same day funds, without defense, setoff
or counterclaim, free of any restriction or condition, and delivered to the
Agent not later than 11:00 p.m. on the date due at the Principal Office
designated by the Agent for the account of the Lenders; for purposes of
computing interest and fees, funds received by the Agent after that time on
such due date shall be deemed to have been paid by the Borrower on the next
succeeding Business Day.


(b)  
All payments in respect of the principal amount of any Loan shall be
accompanied by payment of accrued interest on the principal amount being repaid
or prepaid, and all such payments (and, in any event, any payments in respect
of any Loan on a date when interest is due and payable with respect to such
Loan) shall be applied to the payment of interest then due and payable before
application to principal.


(c)  
The Agent (or its agent or sub-agent appointed by it) shall promptly
distribute to each Lender at such address as such Lender shall indicate in
writing, such Lender’s applicable Pro Rata Share of all payments and
prepayments of principal and interest due hereunder, together with all other
amounts due thereto, including all fees payable with respect thereto, to the
extent received by the Agent.


(d)  
Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation
Notice is withdrawn as to any Affected Lender or if any Affected Lender makes
Base Rate Loans in lieu of its Pro Rata Share of any LIBO Rate Loans, the Agent
shall give effect thereto in apportioning payments received thereafter.


(e)  
Whenever any payment to be made hereunder with respect to any Loan shall
be stated to be due on a day that is not a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest; provided,
however, that, if such extension would cause payment of interest on or
principal of LIBO Rate Loans to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.


(f)  
The Borrower hereby authorizes the Agent to charge the Borrower’s
accounts with the Agent in order to cause timely payment to be made to the
Agent of all principal, interest, fees and expenses due hereunder (subject to
sufficient funds being available in its accounts for that purpose).


(g)  
The Agent shall deem any payment by or on behalf of the Borrower
hereunder that is not made in same day funds prior to 11:00 a.m. to be a non-conforming
payment.  Any such payment shall not be
deemed to have been received by the Agent until the later of (i) the time such
funds become available funds, and (ii) the applicable next Business Day.  The Agent shall give prompt telephonic notice
to the Borrower and each applicable Lender 



 21
 









(confirmed
in writing) if any payment is non-conforming.  Any non-conforming payment may
constitute or become a Default or Event of Default in accordance with the terms
of Section 7.1(a).  Interest shall
continue to accrue on any principal as to which a non-conforming payment
is made until such funds become available funds (but in no event less than the
period from the date of such payment to the next succeeding applicable Business
Day) at the rate determined pursuant to Section 2.7 from the date such amount
was due and payable until the date such amount is paid in full.


2.13.       Ratable Sharing.  The Lenders hereby agree among themselves
that if any of them shall, whether by voluntary payment (other than a voluntary
prepayment of Loans made and applied in accordance with the terms hereof),
through the exercise of any right of set-off or banker’s lien, by
counterclaim or cross action or by the enforcement of any right under the
Credit Documents or otherwise, or as adequate protection of a deposit treated
as cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, fees and other
amounts then due and owing to such Lender hereunder or under the other Credit
Documents (collectively, the “Aggregate Amounts Due” to such
Lender) which is greater than the proportion received by any other Lender in
respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (a) notify the Agent
and each other Lender of the receipt of such payment and (b) apply a
portion of such payment to purchase participations (which it shall be deemed to
have purchased from each seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment) in the Aggregate Amounts
Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
shall be shared by all Lenders in proportion to the Aggregate Amounts Due to
them; provided, if all or part of such proportionately greater payment
received by such purchasing Lender is thereafter recovered from such Lender
upon the bankruptcy or reorganization of the Borrower or otherwise, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. 
The Borrower expressly consents to the foregoing arrangement and agrees
that any holder of a participation so purchased may exercise any and all rights
of banker’s lien, set-off or counterclaim with respect to any and all
monies owing by the Borrower to that holder with respect thereto as fully as if
that holder were owed the amount of the participation held by that holder.


2.14.       Making or Maintaining LIBO Rate Loans.


(a)   Inability
to Determine Applicable Interest Rate. 
In the event that the Agent shall have determined (which determination
shall be final and conclusive and binding upon all parties hereto), on any
Interest Rate Determination Date with respect to any LIBO Rate Loans, that by
reason of circumstances affecting the London interbank market adequate and fair
means do not exist for ascertaining the interest rate applicable to such Loans
on the basis provided for in the definition of LIBO Rate, the Agent shall on
such date give notice (by telefacsimile or by telephone confirmed in writing)
to the Borrower and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, LIBO Rate Loans until such time as the
Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist, and (ii) any Funding Notice or Conver­sion/Continuation
Notice given by the Borrower with respect to the Loans in respect of which such
determination was made shall be deemed to be rescinded by the Borrower.



 22
 









(b)   Illegality
or Impracticability of LIBO Rate Loans. 
In the event that on any date any Lender shall have determined (which
determination shall be final and conclusive and binding upon all parties hereto
but shall be made only after consultation with the Borrower and the Agent) that
the making, maintaining or continuation of its LIBO Rate Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not
be unlawful), or (ii) has become impracticable, as a result of contingencies
occurring after the date hereof which materially and adversely affect the
London interbank market or the position of such Lender in that market, then,
and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give
notice (by telefacsimile or by telephone confirmed in writing) to the Borrower
and the Agent of such determination (which notice the Agent shall promptly
transmit to each other Lender). 
Thereafter (1) the obligation of the Affected Lender to make Loans as,
or to convert Loans to, LIBO Rate Loans shall be suspended until such notice
shall be withdrawn by the Affected Lender, (2) to the extent such determination
by the Affected Lender relates to a LIBO Rate Loan then being requested by the
Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the
Affected Lender shall make such Loan as (or continue such Loan as or convert
such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender’s
obligation to maintain its outstanding LIBO Rate Loans (the “Affected Loans”) shall be terminated at the earlier
to occur of the expiration of the Interest Period then in effect with respect
to the Affected Loans or when required by law, and (4) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such
termination.  Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described
above relates to a LIBO Rate Loan then being requested by the Borrower pursuant
to a Funding Notice or a Conversion/Continuation Notice, the Borrower shall
have the option, subject to the provisions of Section 2.14(c), to rescind such
Funding Notice or Conversion/Continuation Notice as to all Lenders by giving notice
(by telefacsimile or by telephone confirmed in writing) to the Agent of such
rescission on the date on which the Affected Lender gives notice of its
determination as described above (which notice of rescission the Agent shall
promptly transmit to each other Lender). 
Except as provided in the immediately preceding sentence, nothing in
this Section 2.14(b) shall affect the obligation of any Lender other than an
Affected Lender to make or maintain Loans as, or to convert Loans to, LIBO Rate
Loans in accordance with the terms hereof. 
The Affected Lender shall use commercially reasonable efforts to
promptly notify the Agent and the Borrower that it is withdrawing the notice
referred to in the first sentence of this Section when the conditions giving
rise thereto are no longer applicable.


(c)   Compensation
for Breakage or Non-Commencement of Interest Periods.  The Borrower shall compensate each Lender,
upon written request by such Lender (which request shall set forth the basis
for requesting such amounts), for all reasonable losses, expenses and
liabilities (including any interest paid by such Lender to the Lenders of funds
borrowed by it to make or carry its LIBO Rate Loans and any loss, expense or
liability sustained by such Lender in connection with the liquidation or re-employment
of such funds but excluding loss of anticipated profits) which such Lender may
sustain: (i) if for any reason (other than a default by such Lender) a
borrowing of any LIBO Rate Loan does not occur on a date specified therefor in
a Funding Notice or a telephonic request for borrowing, or a conversion to or
continuation of any LIBO Rate Loan does not occur on a date specified therefor
in a Conversion/Continuation Notice 



 23
 









or
a telephonic request for conversion or continuation; (ii) if any
prepayment or other principal payment of, or any conversion of, any of its LIBO
Rate Loans occurs on a date prior to the last day of an Interest Period
applicable to that Loan; or (iii) if any prepayment of any of its LIBO
Rate Loans is not made on any date specified in a notice of prepayment given by
the Borrower.


(d)   Booking
of LIBO Rate Loans.  Any Lender may
make, carry or transfer LIBO Rate Loans at, to, or for the account of any of
its branch offices or the office of an Affiliate of such Lender.


(e)   Assumptions
Concerning Funding of LIBO Rate Loans. 
Calculation of all amounts payable to a Lender under this Section 2.14
and under Section 2.15 shall be made as though such Lender had actually funded
each of its relevant LIBO Rate Loans through the purchase of a LIBO deposit
bearing interest at the rate obtained pursuant to the definition of LIBO Rate
in an amount equal to the amount of such LIBO Rate Loan and having a maturity
comparable to the relevant Interest Period and through the transfer of such
LIBO deposit from an offshore office of such Lender to a domestic office of
such Lender in the United States of America; provided, however,
each Lender may fund each of its LIBO Rate Loans in any manner it sees fit and
the foregoing assumptions shall be utilized only for the purposes of
calculating amounts payable under this Section 2.14 and under Section 2.15.


2.15.       Increased Costs; Capital Adequacy.


(a)   Compensation
For Increased Costs and Taxes. 
Subject to the provisions of Section 2.16 (which shall be controlling
with respect to the matters covered thereby), in the event that any Lender
shall determine (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any law, treaty or governmental
rule, regulation (including, without limitation, Regulation D) or order, or any
change therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental
authority, in each case that becomes effective after the date hereof, or
compliance by such Lender with any guideline, request or directive issued or
made after the date hereof by any central bank or other governmental or quasi-governmental
authority (whether or not having the force of law): (i) subjects such Lender
(or its applicable lending office) to any additional Tax (other than any Tax on
the overall net income of such Lender) with respect to this Agreement or any of
the other Credit Documents or any of its obligations hereunder or thereunder or
any payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder; (ii) imposes, modifies or
holds applicable any reserve (including any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC insurance or
similar requirement against assets held by, or deposits or other liabilities in
or for the account of, or advances or loans by, or other credit extended by, or
any other acquisition of funds by, any office of such Lender; or (iii) imposes
any other condition (other than with respect to a Tax matter) on or affecting
such Lender (or its applicable lending office) or its obligations hereunder or
the London interbank market; and the result of any of the foregoing is to
increase the cost to such Lender of agreeing to make, making or maintaining
Loans hereunder or to reduce any amount received or receivable by such Lender
(or its applicable lending office) with respect thereto; then, in any such
case, the Borrower shall promptly pay to such Lender, upon receipt of the
statement referred to in the next sentence, such additional amount or amounts 



 24
 









(in
the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Lender in its sole discretion shall determine) as
may be necessary to compensate such Lender for any such increased cost or
reduction in amounts received or receivable hereunder.  Such Lender shall deliver to the Borrower
(with a copy to the Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender under
this Section 2.15(a), which statement shall be conclusive and binding upon all
parties hereto absent manifest error; provided that the Borrower shall
not be required to compensate a Lender pursuant to this Section for any
increased costs incurred more than 180 days prior to the date that such Lender
notifies the Borrower and the Agent of any event described in this Section (a “Change
in Law”) which gives rise to such increased costs and of such Lender’s
intention to claim compensation therefor; provided  further that,
if the Change in Law giving rise to such increased costs is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.


(b)   Capital
Adequacy Adjustment.  In the event
that any Lender shall have determined that the adoption, effectiveness, phase-in
or applicability after the Closing Date of any law, rule or regulation (or any
provision thereof) regarding capital adequacy, or any change therein or in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its applicable lending office) with
any guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender’s Loans, or participations
therein or other obligations hereunder with respect to the Loans to a level
below that which such Lender or such controlling corporation could have
achieved but for such adoption, effectiveness, phase-in, applicability,
change or compliance (taking into consideration the policies of such Lender or
such controlling corporation with regard to capital adequacy), then from time
to time, within five Business Days after receipt by the Borrower from such
Lender of the statement referred to in the next sentence, the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such controlling corporation on an after-tax basis for such
reduction.  Such Lender shall deliver to
the Borrower (with a copy to the Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to such
Lender under this Section 2.15(b), which statement shall be conclusive and
binding upon all parties hereto absent manifest error; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs incurred more than 180 days prior to the date that such
Lender notifies the Borrower and the Agent of any Change in Law which gives
rise to such increased costs and of such Lender’s intention to claim
compensation therefor; provided  further that, if the Change in
Law giving rise to such increased costs is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof.


2.16.       Taxes; Withholding, etc.


(a)   Payments
to Be Free and Clear.  All sums
payable by the Borrower hereunder and under the other Credit Documents shall
(except to the extent required by law) be paid free and clear of, and without
any deduction or withholding on account of, any Tax (other 



 25
 









than
a Tax on the overall net income of any Lender) imposed, levied, collected,
withheld or assessed by or within the United States of America or any political
subdivision in or of the United States of America or any other jurisdiction
from or to which a payment is made by or on behalf of the Borrower or by any
federation or organization of which the United States of America or any such
jurisdiction is a member at the time of payment.


(b)   Withholding
of Taxes.  If the Borrower or any
other Person is required by law to make any deduction or withholding on account
of any such Tax from any sum paid or payable by the Borrower to the Agent or
any Lender under any of the Credit Documents: (i) the Borrower shall pay or
cause to be paid any such Tax before the date on which penalties attach
thereto, such payment to be made (if the liability to pay is imposed on the
Borrower) for its own account or (if that liability is imposed on the Agent or
such Lender, as the case may be) on behalf of and in the name of the Agent or
such Lender; (ii) the sum payable by the Borrower in respect of which the
relevant deduction, withholding or payment is required shall be increased to
the extent necessary to ensure that, after the making of that deduction,
withholding or payment, the Agent or such Lender, as the case may be, receives
on the due date a net sum equal to what it would have received had no such
deduction, withholding or payment been required or made; and (iii) within
thirty days after paying any sum from which it is required by law to make any
deduction or withholding, and within thirty days after the due date of payment
of any Tax which it is required by clause (i) above to pay, the Borrower shall
deliver or cause to be delivered to the Agent evidence satisfactory to the
other affected parties of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority; provided, no such
additional amount shall be required to be paid to any Lender under clause (ii)
above except to the extent that any change after the date hereof (in the case
of each Lender listed on the signature pages hereof on the Closing Date) or
after the effective date of the Assignment Agreement pursuant to which such
Lender became a Lender (in the case of each other Lender) in any such
requirement for a deduction, withholding or payment as is mentioned therein
shall result in an increase in the rate of such deduction, withholding or
payment from that in effect at the date hereof or at the date of such
Assignment Agreement, as the case may be, in respect of payments to such
Lender.


(c)   Evidence
of Exemption From U.S. Withholding Tax. 
Each Lender that is not a United States Person (as such term is defined
in Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income
tax purposes (a “Non-US Lender”) shall deliver to the Agent for transmission to the
Borrower, on or prior to the Closing Date (in the case of each Lender listed on
the signature pages hereof on the Closing Date) or on or prior to the date of
the Assignment Agreement pursuant to which it becomes a Lender (in the case of
each other Lender), and at such other times as may be necessary in the
determination of the Borrower or the Agent (each in the reasonable exercise of
its discretion), (i) two original copies of Internal Revenue Service Form W-8BEN,
W-8ECI or W-8IMY (with required attachments) (or, in each case, any
successor forms), properly completed and duly executed by such Lender, and such
other documentation required under the Internal Revenue Code and reasonably
requested by the Borrower to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to
any payments to such Lender of principal, interest, fees or other amounts
payable under any of the Credit Documents, or (ii) if such Lender is not a “bank”
or other Person described in Section 881(c)(3) of the Internal Revenue
Code and cannot deliver either Internal Revenue Service Form W-8ECI
pursuant to clause (i) above, a Certificate re Non-Bank Status 



 26
 









together
with two original copies of Internal Revenue Service Form W-8BEN (or any
successor form), properly completed and duly executed by such Lender, and such
other documentation required under the Internal Revenue Code and reasonably
requested by the Borrower to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to
any payments to such Lender of interest payable under any of the Credit
Documents.  Each Lender that is a United
States person (as such term is defined in Section 7701(a)(30) of the Internal
Revenue Code) for United States federal income tax purposes (a “U.S. Lender”) shall deliver to the Agent
and the Borrower on or prior to the Closing Date (or, if later, on or prior to
the date on which such Lender becomes a party to this Agreement) two original
copies of Internal Revenue Service Form W-9 (or any successor form), properly
completed and duly executed by such Lender, certifying that such U.S. Lender is
entitled to an exemption from United States backup withholding tax, or
otherwise prove that it is entitled to such an exemption.  Each Lender required to deliver any forms,
certificates or other evidence with respect to United States federal income tax
withholding matters pursuant to this Section 2.16(c) hereby agrees, from time
to time after the initial delivery by such Lender of such forms, certificates
or other evidence, whenever a lapse in time or change in circumstances renders
such forms, certificates or other evidence obsolete or inaccurate in any
material respect, that such Lender shall promptly deliver to the Agent for
transmission to the Borrower two new original copies of Internal Revenue
Service Form W-8BEN, W-8ECI or W-8IMY (with required attachments),
or a Certificate re Non-Bank Status and two original copies of Internal
Revenue Service Form W-8BEN (or any successor form), as the case may be,
properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code and reasonably requested
by the Borrower to confirm or establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to
payments to such Lender under the Credit Documents, or notify the Agent and the
Borrower of its inability to deliver any such forms, certificates or other
evidence.  The Borrower shall not be
required to pay any additional amount to any Non-US Lender under Section
2.16(b)(iii) if such Lender shall have failed (1) to deliver the forms,
certificates or other evidence referred to in the second sentence of this
Section 2.16(c), or (2) to notify the Agent and the Borrower of its inability
to deliver any such forms, certificates or other evidence, as the case may be; provided,
if such Lender shall have satisfied the requirements of the first sentence of
this Section 2.16(c) on the Closing Date or on the date of the Assignment
Agreement pursuant to which it became a Lender, as applicable, nothing in this
last sentence of Section 2.16(c) shall relieve the Borrower of its obligation
to pay any additional amounts pursuant this Section 2.16 in the event that, as
a result of any change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described herein.


2.17.       Obligation to Mitigate.  Each Lender agrees that, as promptly as
practicable after the officer of such Lender responsible for administering its
Loans becomes aware of the occurrence of an event or the existence of a
condition that would cause such Lender to become an Affected Lender or that
would entitle such Lender to receive payments under Section 2.14, 2.15 or
2.16, it will, to the extent not inconsistent with the internal policies of
such Lender and any applicable legal or regulatory restrictions, use reasonable
efforts to (a) make, issue, fund or maintain its Credit Extensions, including
any Affected Loans, through another office of such 



 27
 









Lender,
or (b) take such other measures as such Lender may deem reasonable, if as
a result thereof the circumstances which would cause such Lender to be an
Affected Lender would cease to exist or the additional amounts which would
otherwise be required to be paid to such Lender pursuant to Section 2.14,
2.15 or 2.16 would be materially reduced and if, as determined by such Lender
in its sole discretion, the making, funding or maintaining of such Loans
through such other office or in accordance with such other measures, as the
case may be, would not otherwise adversely affect such Loans or the interests
of such Lender; provided, such Lender will not be obligated to utilize
such other office pursuant to this Section 2.17 unless the Borrower agrees to
pay all incremental expenses incurred by such
Lender as a result of utilizing such other office as described above.  A certificate as to the amount of any such
expenses payable by the Borrower pursuant to this Section 2.17 (setting forth
in reasonable detail the basis for requesting such amount) submitted by such
Lender to the Borrower (with a copy to the Agent) shall be conclusive absent
manifest error.


2.18.       Removal or Replacement of a Lender.  Anything contained herein to the contrary
notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost
Lender”) shall give notice to the Borrower that such Lender is an Affected
Lender or that such Lender is entitled to receive payments under Section
 2.14, 2.15 or 2.16, (ii) the circumstances which have caused such Lender
to be an Affected Lender or which entitle such Lender to receive such payments
shall remain in effect, and (iii) such Lender shall fail to withdraw such
notice within five Business Days after the Borrower’s request for such
withdrawal; or (b) in connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of the provisions hereof as
contemplated by Section 9.5(b), the consent of the Requisite Lenders shall have
been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting
Lender”) whose consent is required shall not have been obtained; then, with
respect to each such Increased-Cost Lender or Non-Consenting Lender
(the “Terminated Lender”), the Borrower may, by
giving written notice to the Agent and any Terminated Lender of its election to
do so, elect to cause such Terminated Lender (and such Terminated Lender hereby
irrevocably agrees) to assign its outstanding Loans in full to one or more
Eligible Assignees (each a “Replacement Lender”) in accordance
with the provisions of Section 9.6 and the Borrower shall pay the fees, if any,
payable thereunder in connection with any such assignment from an Increased
Cost Lender or a Non-Consenting Lender; provided, (1) on the date of such
assignment, the Replacement Lender shall pay to Terminated Lender an amount
equal to the principal of, and all accrued interest on, all outstanding Loans
of the Terminated Lender; (2) on the date of such assignment, the Borrower
shall pay any amounts payable to such Terminated Lender pursuant to Section
2.14(c), 2.15 or 2.16; or otherwise as if it were a prepayment and (3) in the
event such Terminated Lender is a Non-Consenting Lender, each Replacement
Lender shall consent, at the time of such assignment, to each matter in respect
of which such Terminated Lender was a Non-Consenting Lender.  Upon the prepayment of all amounts owing to
any Terminated Lender, such Terminated Lender shall no longer constitute a “Lender”
for purposes hereof; provided, any rights of such Terminated Lender to
indemnification hereunder shall survive as to such Terminated Lender.



 28
 









SECTION 3.   CONDITIONS PRECEDENT


3.1.         Closing Date.  The obligation of each Lender to make any
Credit Extension on the Closing Date is subject to the satisfaction, or waiver
in accordance with Section 9.5, of the following conditions on or before the
Closing Date:


(a)   Credit
Documents.  The Agent shall have
received sufficient copies of each Credit Document originally executed and
delivered by the Borrower for each Lender.


(b)   Organizational
Documents; Incumbency.  The Agent
shall have received (i) sufficient copies of the Borrower’s articles of
incorporation, as amended, and its by-laws, as amended, and, to the
extent applicable, certified as of a recent date by the appropriate
governmental official, for each Lender, each dated the Closing Date or a recent
date prior thereto; (ii) signature and incumbency certificates of the officers
of such Person executing the Credit Documents; (iii) resolutions of the Board
of Directors or similar governing body of the Borrower approving and
authorizing the execution, delivery and performance of this Agreement and the
other Credit Documents, certified as of the Closing Date by its secretary or an
assistant secretary as being in full force and effect without modification or
amendment; (iv) a good standing certificate from the applicable Governmental
Authority of the Borrower’s jurisdiction of incorporation, organization or
formation, dated a recent date prior to the Closing Date; and (v) such other
documents as the Agent may reasonably request.


(c)   Governmental
Authorizations and Consents.  The
Borrower shall have obtained all Governmental Authorizations and all
consents of other Persons, in each case that are necessary or advisable in
connection with the transactions contemplated by the Credit Documents and the
foregoing shall be in full force and effect and in form and substance
reasonably satisfactory to the Agent.


(d)   Financial
Statements.  The Lenders shall have
received from the Borrower the Historical Financial Statements.


(e)   Opinions
of Counsel to the Borrower.  The
Lenders shall have received originally executed copies of the favorable written
opinion of Latham & Watkins LLP, counsel for the Borrower, in the form of
Exhibit D hereto, dated as of the Closing Date (and the Borrower hereby
instructs such counsel to deliver such opinions to the Agent and the Lenders).


(f)   Fees.  The Borrower shall have paid to the Agent the
fees payable on the Closing Date referred to in Section 2.8.


(g)   Closing
Date Certificate.  The Borrower shall
have delivered to the Agent an originally executed Closing Date Certificate,
together with all attachments thereto.


(h)   No
Litigation.  There shall not exist
any action, suit, investigation, litigation, proceeding, hearing or other legal
or regulatory developments, pending or threatened in any court or before any
arbitrator or Governmental Authority that, in the reasonable opinion of the
Agent, singly or in the aggregate, materially impairs any of the other
transactions contemplated by the Credit Documents, or that could reasonably be
expected to have a Material Adverse Effect.



 29
 









(i)   Completion
of Proceedings.  All partnership,
corporate and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incidental thereto not
previously found acceptable by the Agent and its counsel shall be satisfactory
in form and substance to the Agent and such counsel, and the Agent and such
counsel shall have received all such counterpart originals or certified copies
of such documents as the Agent may reasonably request.


(j)   Letter
of Direction.  The Agent shall have
received a duly executed letter of direction from the Borrower addressed to the
Agent, on behalf of itself and the Lenders, directing the disbursement on the
Closing Date of the proceeds of the Loans made on such date.


(k)   Patriot
Act.  Prior to the Closing Date, the
Agent shall have received all documentation and other information required by
bank regulatory authorities under applicable “know-your-customer” and
anti-money laundering rules and regulations, including the U.S.A. Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)).


(l)   Existing
Indebtedness.  On the Closing Date,
the Borrower shall have repaid in full, or shall have made arrangements such
that substantially contemporaneously with the initial Loans it will repay in
full, all indebtedness outstanding under the Credit Agreement dated as of June
7, 2007 among the Borrower, the lenders parties thereto and GSCP, as lead
arranger and administrative agent.


(m)   Funding
Notice.  The Agent shall have
received a fully executed and delivered Funding Notice as required pursuant to
Section 2.1(b)(i);


(n)   Representation
and Warranties.  As of the Closing
Date, the representations and warranties contained herein and in the other
Credit Documents shall be true and correct in all material respects on and as
of that Closing Date to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties shall have
been true and  correct in all material
respects on and as of such earlier date; and


(o)   Event
of Default.  As of the Closing Date,
no event shall have occurred and be continuing or would result from the
consummation of the Credit Extension that would constitute an Event of Default
or a Default.


SECTION 4.   REPRESENTATIONS AND
WARRANTIES


In order to induce the Lenders to enter into this Agreement and to make
each Credit Extension to be made thereby, the Borrower represents and warrants
to each Lender, on the Closing Date, that the following statements are true and
correct:


4.1.         Organization; Requisite Power and Authority; Qualification.  The Borrower (a) is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, (b) has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Credit Documents and to carry out the transactions
contemplated thereby, and (c) is qualified to do


 



 30















business
and in good standing in every jurisdiction where its assets are located and
wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had, and could not be reasonably expected to have, a Material Adverse Effect.


4.2.         Due Authorization.  The execution, delivery and performance of
the Credit Documents have been duly authorized by all necessary action on the
part of the Borrower.


4.3.         No Conflict.  The execution, delivery and performance by
the Borrower of the Credit Documents and the consummation of the transactions
contemplated by the Credit Documents do not and will not (a) violate (i) any
provision of any law or any governmental rule or regulation applicable to the
Borrower or any of its Subsidiaries, (ii) the articles of incorporation, as
amended, or by-laws, as amended, of the Borrower, or (iii) any order, judgment
or decree of any court or other agency of government binding on the Borrower or
any of its Subsidiaries; (b) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of the Borrower or any of its Subsidiaries; (c) result
in or require the creation or imposition of any Lien upon any of the properties
or assets of the Borrower or any of its Subsidiaries; or (d) require any
approval of stockholders, members or partners or any approval or consent of any
Person under any Contractual Obligation of the Borrower or any of its Subsidiaries,
except for such approvals or consents which will be obtained on or before the
Closing Date and disclosed in writing to the Lenders.


4.4.         Governmental Consents.  The execution, delivery and performance by
the Borrower of the Credit Documents and the consummation of the transactions
contemplated by the Credit Documents do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any Governmental Authority, except for such registrations, consents
or approvals which have been obtained on or before the Closing Date.


4.5.         Binding Obligation.  Each Credit Document has been duly executed
and delivered by the Borrower and is the legally valid and binding obligation
of the Borrower, enforceable against the Borrower in accordance with its
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’
rights generally or by equitable principles relating to enforceability.


4.6.         Historical Financial Statements.  The Historical Financial Statements were
prepared in conformity with GAAP and fairly present, in all material respects,
the financial position, on a consolidated basis, of the Persons described in
such financial statements as at the respective dates thereof and the results of
operations and cash flows, on a consolidated basis, of the entities described
therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-end
adjustments.  As of the Closing Date,
neither the Borrower nor any of its Subsidiaries has any contingent liability
or liability for taxes, long-term lease or unusual forward or long-term
commitment that is not reflected in the Historical Financial Statements or the
notes thereto and which in any such case is material in relation to the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole.



 31
 









4.7.         No Material Adverse Change.  Since May 28, 2006, no event, circumstance or
change has occurred that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect.


4.8.         Adverse Proceedings, etc.  There are no Adverse Proceedings,
individually or in the aggregate, that could reasonably be expected to have a
Material Adverse Effect.  Neither the
Borrower nor any of its Subsidiaries (a) is in violation of any applicable
laws (including Environmental Laws) that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, or (b) is
subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any federal, state,
municipal or other governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.


4.9.         Governmental Regulation.  Neither the Borrower nor any of its
Subsidiaries is subject to regulation under the Federal Power Act or the
Investment Company Act of 1940 or under any other federal or state statute or
regulation which may limit its ability to incur Indebtedness or which may
otherwise render all or any portion of the Obligations unenforceable.  Neither the Borrower nor any of its
Subsidiaries is a “registered investment company” or a company “controlled” by
a “registered investment company” or a “principal underwriter” of a “registered
investment company” as such terms are defined in the Investment Company Act of
1940.


4.10.       Margin Stock.  Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying any
Margin Stock.  No part of the proceeds of
the Loans made to the Borrower will be used to purchase or carry any such
Margin Stock or to extend credit to others for the purpose of purchasing or carrying
any such Margin Stock or for any purpose that violates, or is inconsistent
with, the provisions of Regulation T, U or X of the Board of Governors.


4.11.       Disclosure.  No representation or warranty of the Borrower
contained in any Credit Document or in any other documents, certificates or
written statements furnished to the Agent or any Lender by or on behalf of the
Borrower or any of its Subsidiaries for use in connection with the transactions
contemplated hereby, when taken as a whole, contains any untrue statement of a
material fact or omits to state a material fact (known to the Borrower, in the
case of any document not furnished by either of them) necessary in order to
make the statements contained herein or therein not misleading in light of the
circumstances in which the same were made. 
Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such projections as to future events are not to be viewed as facts and
that actual results during the period or periods covered by any such
projections may differ from the projected results.  There are no facts known (or which should upon
the reasonable exercise of diligence be known) to the Borrower (other than
matters of a general economic nature) that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect and that
have not been disclosed herein or in such other 



 32
 









documents,
certificates and statements furnished to the Lenders for use in connection with
the transactions contemplated hereby.


4.12.       Patriot Act.  To the extent applicable, the Borrower is in
compliance, in all material respects, with the (i) Trading with the Enemy
Act, as amended, and each of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
and any other enabling legislation or executive order relating thereto, and
(ii) Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001).  No part of the proceeds of the Loans will be
used, directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.


SECTION 5.   AFFIRMATIVE
COVENANTS


The Borrower covenants and agrees that, so long as any Commitment is in
effect and until payment in full of all Obligations, the Borrower shall perform,
and shall cause each of its Subsidiaries to perform, all covenants in this
Section 5.


5.1.         Financial Statements and Other Reports.  The Borrower will deliver to the Agent (on
behalf of itself and the Lenders):


(a)   Quarterly
Financial Statements.  As soon as
available, and in any event within 45 days after the end of each of the first
three Fiscal Quarters of each Fiscal Year, commencing with the Fiscal Quarter
in which the Closing Date occurs, the consolidated balance sheets of the
Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated statements of income, stockholders’ equity and cash flows
of the Borrower and its Subsidiaries for such Fiscal Quarter and for the period
from the beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year, all in
reasonable detail, together with a Financial Officer Certification with respect
thereto;


(b)   Annual
Financial Statements.  As soon as
available, and in any event within 90 days after the end of each Fiscal Year,
commencing with the Fiscal Year in which the Closing Date occurs, (i) the
consolidated balance sheets of the Borrower and its Subsidiaries as at the end
of such Fiscal Year and the related consolidated statements of income,
stockholders’ equity and cash flows of the Borrower and its Subsidiaries for
such Fiscal Year, setting forth in each case in comparative form the corresponding
figures for the previous Fiscal Year covered by such financial statements, in
reasonable detail, together with a Financial Officer Certification with respect
thereto; and (ii) with respect to such consolidated financial statements a
report thereon of KPMG LLP or other independent certified public accountants of
recognized national standing selected by the Borrower, and reasonably
satisfactory to the Agent (which report shall be unqualified as to going
concern and scope of audit, and shall state that such consolidated financial
statements fairly present, in all material respects, the consolidated financial
position of the Borrower and its Subsidiaries as at the dates indicated and the
results of their operations and 



 33
 









their
cash flows for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise disclosed in such financial
state­ments) and that the examination by such accountants in connection with
such consolidated financial statements has been made in accordance with
generally accepted auditing standards);


(c)   Compliance
Certificate.  Together with each
delivery of financial statements of the Borrower and its Subsidiaries pursuant
to Sections 5.1(a) and 5.1(b), a duly executed and completed Compliance
Certificate;


(d)   Statements
of Reconciliation after Change in Accounting Principles.  If, as a result of any change in accounting
principles and policies from those used in the preparation of the Historical
Financial Statements, the consolidated financial statements of the Borrower and
its Subsidiaries delivered pursuant to Section 5.1(a) or 5.1(b) will differ in
any material respect from the consolidated financial statements that would have
been delivered pursuant to such subdivisions had no such change in accounting
principles and policies been made, then, together with the first delivery of
such financial statements after such change, one or more statements of
reconciliation for all such prior financial statements in form and substance
satisfactory to the Agent;


(e)   Notice
of Default.  Promptly upon any
Authorized Officer of the Borrower obtaining knowledge (i) of any condition or
event that constitutes a Default or an Event of Default or that notice has been
given to the Borrower with respect thereto; (ii) that any Person has given
any notice to the Borrower or any of its Subsidiaries or taken any other action
with respect to any event or condition set forth in Section 7.1(b); or (iii) of
the occurrence of any event or change that has caused or evidences, either in
any case or in the aggregate, a Material Adverse Effect, a certificate of its
Authorized Officer specifying the nature and period of existence of such
condition, event or change, or specifying the notice given and action taken by any
such Person and the nature of such claimed Event of Default, Default, default,
event or condition, and what action the Borrower has taken, is taking and
proposes to take with respect thereto;


(f)   Notice
of Litigation.  Promptly upon any
Authorized Officer of the Borrower obtaining knowledge of (i) the institution
of, or non-frivolous threat of, any Adverse Proceeding not previously
disclosed in writing by the Borrower to the Lenders, or (ii) any material
development in any Adverse Proceeding that, in the case of either clause (i) or
(ii), could be reasonably expected to have a Material Adverse Effect, or seeks
to enjoin or otherwise prevent the consummation of, or to recover any damages
or obtain relief as a result of, the transactions contemplated hereby, written
notice thereof together with such other information as may be reasonably
available to the Borrower to enable the Lenders and their counsel to evaluate
such matters;


(g)   Other
Information.  (A) Promptly upon their
becoming available, copies of (i) all financial statements, reports,
notices and proxy statements sent or made available generally by the Borrower
to its security holders acting in such capacity or by any Subsidiary of the
Borrower to its security holders other than the Borrower or another Subsidiary
of the Borrower, (ii) all regular and periodic reports and all
registration statements and prospectuses, if any, filed by the Borrower or any
of its Subsidiaries with any securities exchange or with the Securities and 



 34
 









Exchange
Commission or any governmental or private regulatory authority, (iii) all press
releases and other statements made available generally by the Borrower or any
of its Subsidiaries to the public concerning material developments in the
business of the Borrower or any of its Subsidiaries, and (B) such other
information and data with respect to the Borrower or any of its Subsidiaries as
from time to time may be reasonably requested by the Agent or any Lender; and


(h)   Certification
of Public Information.  The Borrower
hereby acknowledges that (a) the Agent and/or the Arrangers will make available
to the Lenders materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or
another similar electronic system (the “Platform”)
and (b) certain of the Lenders (each, a “Public
Lender”) may have personnel who do not wish to receive material
non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in
investment and other market-related activities with respect to such Persons’
securities.  The Borrower hereby agrees
that it will use commercially reasonable efforts to identify that portion of
the Borrower Materials that may be distributed to the Public Lenders and that
(w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently
on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrower shall be deemed to have authorized the Agent, the Arrangers and the
Lenders to treat such Borrower Materials as not containing any material
non-public information (although it may be sensitive and proprietary) with
respect to the Borrower or its securities for purposes of United States Federal
and state securities laws (provided, however, that to the extent
such Borrower Materials constitute non-public information regarding the
Borrower and its Subsidiaries and their businesses identified as such by the
Borrower, they shall be treated as set forth in Section 9.17); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (z) the Agent and the
Arrangers shall be entitled to treat any Borrower Materials that are not marked
“PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor.”


5.2.         Existence.  Except as otherwise permitted under Section
6.4, the Borrower will, and will cause each of its Subsidiaries to, at all
times preserve and keep in full force and effect its existence and all rights
and franchises, licenses and permits material to its business; provided,
neither the Borrower (other than with respect to existence) or any of its
Subsidiaries shall be required to preserve any such existence, right or
franchise, licenses and permits if such Person’s board of directors (or similar
governing body) shall determine that the preservation thereof is no longer
desirable in the conduct of the business of such Person, and that the loss
thereof is not disadvantageous in any material respect to such Person or to the
Lenders.


5.3.         Payment of Taxes and Claims.  The Borrower will, and will cause each of its
Subsidiaries to, pay all Taxes imposed upon it or any of its properties or
assets or in respect of any of its income, businesses or franchises (other than
de minimus Taxes) before any penalty or fine accrues thereon, and all claims
(including claims for labor, services, materials and supplies, but not
including any de minimus claims) for sums that have become due and payable and
that by law have or may become a Lien upon any of its properties or assets,
prior to the time when any penalty or fine shall be incurred with respect
thereto; provided, no such Tax or claim need be paid if it is being
contested in good faith by appropriate proceedings promptly instituted and 



 35
 









diligently
conducted, so long as adequate reserve or other appropriate provision, as shall
be required in conformity with GAAP shall have been made therefor.  The Borrower will not, nor will it permit any
of its Subsidiaries to, file or consent to the filing of any consolidated
income tax return with any Person (other than the Borrower or any of its
Subsidiaries).


5.4.         Maintenance of Properties.  The Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of the Borrower and its Subsidiaries and from
time to time will make or cause to be made all appropriate repairs, renewals
and replacements thereof.


5.5.         Insurance.  The Borrower will maintain or cause to be
maintained, with financially sound and reputable insurers, such public
liability insurance, third party property damage insurance, business
interruption insurance and casualty insurance with respect to liabilities,
losses or damage in respect of the assets, properties and businesses of the
Borrower and its Subsidiaries as may customarily be carried or maintained under
similar circumstances by Persons of established reputation engaged in similar
businesses, in each case in such amounts (giving effect to self-insurance),
with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons.


5.6.         Books and Records; Inspections.  The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and accounts in which full, true
and correct entries in conformity in all material respects with GAAP shall be
made of all dealings and transactions in relation to its business and
activities.  The Borrower will, and will
cause each of its Subsidiaries to, permit any authorized representatives
designated by any Lender to visit and inspect any of the properties of the
Borrower and any of its respective Subsidiaries, to inspect, copy and take
extracts from its and their financial and accounting records, and to discuss
its and their affairs, finances and accounts with its and their officers and
independent public accountants, all upon reasonable notice and at such
reasonable times during normal business hours and as often as may reasonably be
requested.


5.7.         Compliance with Laws.  The Borrower will comply, and shall cause
each of its Subsidiaries and all other Persons, if any, on or occupying any
Facilities to comply, with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority (including all
Environmental Laws), noncompliance with which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.


SECTION 6.   NEGATIVE COVENANTS


The Borrower covenants and agrees that, so long as any Commitment is in
effect and until payment in full of all Obligations, the Borrower shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.


6.1.         Liens.  The
Borrower shall not, nor shall it permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist any Lien on or with
respect to any property or asset of any kind (including any document or
instrument in respect of goods or accounts receivable) of the Borrower or any
of its Subsidiaries, whether now owned or hereafter acquired 



 36
 









or
licensed, or any income, profits or royalties therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income,
profits or royalties under the UCC of any State or under any similar recording
or notice statute or under the intellectual property laws, rules or procedures,
except:


(a)  
Liens for Taxes if obligations with respect to such Taxes are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted;


(b)  
statutory Liens of landlords, banks (and rights of set-off), of
carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and
other Liens imposed by law (other than any such Lien imposed pursuant to
Section 401 (a)(29) or 412(n) of the Internal Revenue Code or by ERISA), in
each case incurred in the ordinary course of business (i) for amounts not yet
overdue or (ii) for amounts that are overdue and that (in the case of any such
amounts overdue for a period in excess of five days) are being contested in
good faith by appropriate proceedings, so long as such reserves or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made for any such contested amounts;


(c)  
Liens incurred in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, trade contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money or other
Indebtedness);


(d)  
easements, rights-of-way, restrictions, encroachments, and
other minor defects or irregularities in title, in each case which do not and
will not interfere in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;


(e)  
any interest or title of a lessor or sublessor under any lease of real
estate permitted hereunder;


(f)  
Liens solely on any cash earnest money deposits made by the Borrower or
any of its Subsidiaries in connection with any letter of intent or purchase
agreement permitted hereunder;


(g)  
purported Liens evidenced by the filing of precautionary UCC financing
statements relating solely to operating leases of personal property entered
into in the ordinary course of business;


(h)  
Liens in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of
goods;


(i)  
any zoning or similar law or right reserved to or vested in any governmental
office or agency to control or regulate the use of any real property;


(j)  
non-exclusive outbound licenses of patents, copyrights, trademarks and
other intellectual property rights granted by the Borrower or any of its
Subsidiaries in the ordinary 



 37
 









course
of business and not interfering in any respect with the ordinary conduct of or
materially detracting from the value of the business of the Borrower or such
Subsidiary;


(k)  
Liens securing purchase money Indebtedness; provided, any such
Lien shall encumber only the asset acquired with the proceeds of such
Indebtedness;


(l)  
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 (a) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against access by the
Borrower or any Subsidiary in excess of those set forth by regulations
promulgated by the Federal Reserve Bank, and (b) such deposit account is not
intended by the Borrower or any Subsidiary to provide collateral to the
depository institution;


(m)  
Liens on assets of any Person that becomes a Subsidiary after the date
of this Agreement, provided that such Liens existed at the time of such
acquisition of such Person and were not created in anticipation thereof or for
purposes of circumventing this Agreement;


(n)  
Liens on assets acquired by the Borrower or any of its Subsidiaries
after the date of this Agreement, provided that such Liens existed at the time
of such acquisition and were not created in anticipation thereof or for
purposes of circumventing this Agreement;


(o)  
Extensions, renewals or replacements of any Liens referred to in the
foregoing clauses (k), (m) and (n), provided that (i) the principal amount of
Indebtedness secured thereby shall not exceed the principal amount of
Indebtedness so secured at the time of such extension, renewal or replacement
and (ii) such extension, renewal or replacement Liens shall be limited to all
or part of the same property and improvement thereon which secured the
Indebtedness so secured at the time of such extension, renewal or replacement;
and


(p)  
other Liens securing Indebtedness in an aggregate amount not to exceed
10% of the total assets of the Borrower and its Subsidiaries at any time
outstanding.


6.2.         Financial Covenants.


(a)   Interest
Coverage Ratio.  The Borrower shall
not permit the Interest Coverage Ratio as of the last day of any Fiscal
Quarter, beginning with the Fiscal Quarter ending August 26, 2007, to be less
than 5.00 to 1.00.


(b)   Leverage
Ratio.  The Borrower shall not permit
the Leverage Ratio as of the last day of any Fiscal Quarter, beginning with the
Fiscal Quarter ending August 26, 2007, to exceed 2.75 to 1.00.  For purposes of calculating the Leverage
Ratio on any date, if the Borrower or any of its Subsidiaries shall have made
an acquisition during the preceding four Fiscal Quarters, Consolidated Adjusted
EBITDA for such period shall be calculated after giving pro forma effect
thereto as if such acquisition occurred on the first day of such period.


6.3.         Fundamental Changes; Disposition of Assets.  The Borrower shall not merge or consolidate
with or into, or convey, transfer, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its
assets (whether now owned 



 38
 









or
hereafter acquired) to, any Person, or permit any of its Subsidiaries to do so,
except that (a) any Subsidiary of the Borrower may merge or consolidate with or
into, or dispose of assets to, any other Subsidiary of the Borrower or the
Borrower and in connection therewith such Subsidiary may be liquidated or
dissolved, (b) the Borrower and its Subsidiaries may liquidate or dissolve any
business, including any Subsidiary, that has been determined by the Borrower’s
chief executive officer or chief financial officer in good faith to be of
immaterial importance to the total business conducted by the Borrower and its
Subsidiaries taken as a whole, (c) the Borrower or a Subsidiary of the Borrower
may merge or consolidate with or into, or dispose of assets to, any other
Person so long as the Borrower or such Subsidiary is the surviving corporation
and (d) the Borrower and its Subsidiaries may make dispositions not otherwise
permitted hereunder that are made for fair market value, provided that
the aggregate book value of all such assets or property so sold by the Borrower
and its Subsidiaries shall at no time exceed an amount equal to 10% of the
total assets of the Borrower and its Subsidiaries (determined as of the date
hereof); provided, in each case, that no Default shall have occurred and
be continuing at the time of such proposed transaction or would result
therefrom.


6.4.         Transactions with
Shareholders and Affiliates.  The Borrower shall not, nor
shall it permit any of its Subsidiaries to, directly or indirectly, enter into
or permit to exist any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate of
the Borrower on terms that are less favorable to the Borrower or that
Subsidiary, as the case may be, than those that might be obtained at the time
from a Person who is not such a holder or Affiliate; provided, the
foregoing restriction shall not apply to (a) reasonable and customary fees
paid to members of the board of directors (or similar governing body) of the
Borrower and its Subsidiaries, (b) compensation arrangements for officers and
other employees of the Borrower and its Subsidiaries entered into in the
ordinary course of business and (c) any transaction between or among the
Borrower and its wholly-owned Subsidiaries.


6.5.         Conduct of Business.  From and after the Closing Date, the Borrower
shall not, nor shall it permit any of its Subsidiaries to, engage in any
business other than (i) the businesses engaged in by the Borrower on the
Closing Date and similar or related businesses and any business that is
complementary to or a reasonable extension of such business and (ii) such other
lines of business as may be consented to by the Requisite Lenders.


SECTION 7.   EVENTS OF DEFAULT


7.1.         Events of Default.  If any one or more of the following
conditions or events shall occur:


(a)   Failure
to Make Payments When Due.  Failure
by the Borrower to pay (i) when due any installment of principal of any Loan,
whether at stated maturity, by acceleration, by notice of voluntary prepayment,
by mandatory prepayment or otherwise; or (ii) any interest on any Loan or any
fee or any other amount due hereunder within five days after the date due; or


(b)   Default
in Other Agreements.  (i) Failure of
the Borrower or any of its Subsidiaries to pay when due any principal of or
interest on or any other amount payable in 



 39
 









respect
of one or more items of Indebtedness (other than Indebtedness referred to in
Section 7.1(a)) in an aggregate principal amount of $50,000,000 or more, in
each case beyond the grace period, if any, provided therefor; or (ii) breach or
default by the Borrower with respect to any other material term of (1) one or
more items of Indebtedness in the individual or aggregate principal amounts
referred to in clause (i) above or (2) any loan agreement, mortgage, indenture
or other agreement relating to such item(s) of Indebtedness, in each case
beyond the grace period, if any, provided therefor, if the effect of such
breach or default is to cause, or to permit the holder or holders of that
Indebtedness (or a trustee on behalf of such holder or holders), to cause, that
Indebtedness to become or be declared due and payable (or redeemable) prior to
its stated maturity or the stated maturity of any underlying obligation, as the
case may be; or


(c)   Breach
of Certain Covenants.  Failure of the
Borrower to perform or comply with any term or condition contained in Section
2.3, Sections 5.1(a), 5.1(b), 5.1(c) and 5.1(e), Section 5.2 or Section 6; or


(d)   Breach
of Representations, etc.  Any
representation, warranty, certification or other statement made or deemed made
by the Borrower in any Credit Document or in any statement or certificate at
any time given by the Borrower or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false in any
material respect as of the date made or deemed made; or


(e)   Other
Defaults Under Credit Documents.  The
Borrower shall default in the performance of or compliance with any term
contained herein or any of the other Credit Documents, other than any such term
referred to in any other Section of this Section 7.1, and such default
shall not have been remedied or waived within thirty days after the earlier of
(i) an Authorized Officer of the Borrower becoming aware of such default or (ii)
receipt by the Borrower of written notice from the Agent or any Lender of such
default; or


(f)   Involuntary
Bankruptcy; Appointment of Receiver, etc. 
(i) A court of competent jurisdiction shall enter a decree or order for
relief in respect of the Borrower or any of its Material Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be
commenced against the Borrower or any of its Material Subsidiaries under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over
the Borrower or any of its Material Subsidiaries, or over all or a substantial
part of its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of
the Borrower or any of its Material Subsidiaries for all or a substantial part
of its property; or a warrant of attachment, execution or similar process shall
have been issued against any substantial part of the property of the Borrower
or any of its Material Subsidiaries, and any such event described in this clause
(ii) shall continue for sixty days without having been dismissed, bonded or
discharged; or


 



 40















(g)   Voluntary
Bankruptcy; Appointment of Receiver, etc. 
(i) The Borrower or any of its Material Subsidiaries shall have an order
for relief entered with respect to it or shall commence a voluntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; or the Borrower or any of its
Material Subsidiaries shall make any assignment for the benefit of creditors;
or (ii) the Borrower or any of its Material Subsidiaries shall be unable,
or shall fail generally, or shall admit in writing its inability, to pay its
debts as such debts become due; or the board of directors (or similar governing
body) of the Borrower or any of its Material Subsidiaries (or any committee
thereof) shall adopt any resolution or otherwise authorize any action to
approve any of the actions referred to herein or in Section 7.1(f); or


(h)   Judgments
and Attachments.  Any money judgment,
writ or warrant of attachment or similar process involving in the aggregate at
any time an amount in excess of $50,000,000 (to the extent not adequately
covered by insurance as to which a solvent and unaffiliated insurance company
has acknowledged coverage) shall be entered or filed against the Borrower or
any of its Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of sixty days (or in
any event later than five days prior to the date of any proposed sale thereunder);
or


(i)   Dissolution.  Any order, judgment or decree shall be
entered against the Borrower decreeing the dissolution or split up of the
Borrower and such order shall remain undischarged or unstayed for a period in
excess of thirty days; or


(j)   Employee
Benefit Plans.  (i) There shall occur
one or more ERISA Events which individually or in the aggregate results in or
might reasonably be expected to result in liability of the Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates in excess of
$50,000,000; or (ii) there exists any fact or circumstance that reasonably
could be expected to result in the imposition of a Lien or security interest
under Section 412(n) of the Internal Revenue Code or under ERISA with respect
to any Pension Plan.


(k)   Change
of Control.  A Change of Control
shall occur;


THEN, (1) upon the occurrence of any Event of Default
described in Section 7.1(f) or 7.1(g), automatically, and (2) upon the
occurrence and during the continuance of any other Event of Default, at the
request of (or with the consent of) the Requisite Lenders, upon notice to the
Borrower by the Agent, each of the following shall immediately become due and
payable, in each case without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by the
Borrower: (I) the unpaid principal amount of and accrued interest on the Loans
and (II) all other Obligations.


7.2.         Application of Funds.  After the exercise of remedies provided for
in Section 7.1 (or after the Loans have automatically become immediately
due and payable as set forth in the proviso to Section 7.1), any amounts
received on account of the Obligations shall be applied by the Agent in the
following order:



 41
 









First,
to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of
counsel to the Agent and amounts payable under Section 2.15 or 2.16)
payable to the Agent in its capacity as such;


Second, to payment of that portion of the
Obligations constituting fees, indemnities and other amounts payable to the
Lenders (including fees, charges and disbursements of counsel to the
respective Lenders and amounts payable
under Section 2.15 or 2.16,
ratably among them in proportion to the respective amounts described in this
clause Second payable to them;


Third, to payment of that portion of the
Obligations constituting unpaid principal of the Loans, ratably among the
Lenders in proportion to the respective amounts described in this clause Third
held by them; and


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


SECTION 8.   THE AGENT


8.1.         Appointment of the Agent.  Bank of America is hereby appointed the Agent
hereunder and under the other Credit Documents and each Lender hereby
authorizes Bank of America to act as the Agent in accordance with the terms
hereof and the other Credit Documents. 
The Agent hereby agrees to act in its capacity as such upon the express
conditions contained herein and the other Credit Documents, as applicable.  The provisions of this Section 8(other than
Section 8.7)  are solely for the benefit
of the Agent and the Lenders and the Borrower shall not have any rights as a
third party beneficiary of any of the provisions thereof.  In performing its functions and duties
hereunder, the Agent shall act solely as an agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation towards or relationship
of agency or trust with or for the Borrower or any of its Subsidiaries.


8.2.         Powers and Duties.  Each Lender irrevocably authorizes the Agent
to take such action on such Lender’s behalf and to exercise such powers, rights
and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to the Agent
by the terms hereof and thereof, together with such powers, rights and remedies
as are reasonably incidental thereto. 
The Agent shall have only those duties and responsibilities that are
expressly specified herein and the other Credit Documents.  The Agent may exercise such powers, rights
and remedies and perform such duties by or through its agents or employees.  Neither the Agent nor any Arranger shall
have, by reason hereof or any of the other Credit Documents, a fiduciary
relationship in respect of any Lender; and nothing herein or any of the other
Credit Documents, expressed or implied, is intended to or shall be so construed
as to impose upon the Agent or any Arranger any obligations in respect hereof
or any of the other Credit Documents except as expressly set forth herein or
therein.


8.3.         General Immunity.


(a)   No
Responsibility for Certain Matters. 
Neither the Agent nor any Arranger shall be responsible to any Lender
for the execution, effectiveness, genuineness, validity, enforceability,
collectability or sufficiency hereof or any other Credit Document or for any
representations, warranties, recitals or statements made herein or therein or
made in any written 



 42
 









or
oral statements or in any financial or other statements, instruments, reports
or certificates or any other documents furnished or made by the Agent or any
Arranger to the Lenders or by or on behalf of the Borrower or any Lender or in
connection with the Credit Documents and the transactions contemplated thereby
or for the financial condition or business affairs of the Borrower or any other
Person liable for the payment of any Obligations, nor shall the Agent be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in any of
the Credit Documents or as to the use of the proceeds of the Loans or as to the
existence or possible existence of any Event of Default or Default or to make
any disclosures with respect to the foregoing. 
Anything contained herein to the contrary notwithstanding, the Agent
shall not have any liability arising from confirmations of the amount of
outstanding Loans.


(b)   Exculpatory
Provisions.  Neither the Agent nor
any of its officers, partners, directors, employees or agents shall be liable
to the Lenders for any action taken or omitted by the Agent under or in
connection with any of the Credit Documents except to the extent caused by the
Agent’s gross negligence or willful misconduct. 
The Agent shall be entitled to refrain from any act or the taking of any
action (including the failure to take an action) in connection herewith or any
of the other Credit Documents or from the exercise of any power, discretion or
authority vested in it hereunder or thereunder unless and until the Agent shall
have received instructions in respect thereof from the Requisite Lenders (or
such other Lenders as may be required to give such instructions under Section
9.5) and, upon receipt of such instructions from the Requisite Lenders (or such
other Lenders, as the case may be), the Agent shall be entitled to act or
(where so instructed) refrain from acting, or to exercise such power,
discretion or authority, in accordance with such instructions.  Without prejudice to the generality of the
foregoing, (i) the Agent shall be entitled to rely, and shall be fully
protected in relying, upon any communication, instrument or document believed
by it to be genuine and correct and to have been signed or sent by the proper
Person or Persons, and shall be entitled to rely and shall be protected in
relying on opinions and judgments of attorneys (who may be attorneys for the
Borrower and its Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or (where so
instructed) refraining from acting hereunder or any of the other Credit
Documents in accordance with the instructions of the Requisite Lenders (or such
other Lenders as may be required to give such instructions under Section 9.5).


(c)   Delegation
of Duties.  The Agent may perform any
and all of its duties and exercise its rights and powers under this
Agreement or under any other Credit Document by or through any one or more
sub-agents appointed by the Agent.  The
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Affiliates.  The exculpatory, indemnification and other
provisions of this Section 8.3 and of Section 8.6 shall apply to any the
Affiliates of the Agent and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as the Agent.  All of
the rights, benefits, and privileges (including the exculpatory and
indemnification provisions) of this Section 8.3 and of Section 8.6 shall apply
to any such sub-agent and to the Affiliates of any such sub-agent, and shall
apply to their respective activities as sub-agent as if such sub-agent and
Affiliates were named herein. 
Notwithstanding anything herein to the contrary, with respect to each sub-agent
appointed by the Agent, (i) such sub-agent shall be a third party beneficiary
under this Agreement with respect to all such rights, 



 43
 









benefits
and privileges (including exculpatory rights and rights to indemnification) and
shall have all of the rights and benefits of a third party beneficiary,
including an independent right of action to enforce such rights, benefits and
privileges (including exculpatory rights and rights to indemnification)
directly, without the consent or joinder of any other Person, against any or
all of the Borrower and the Lenders, (ii) such rights, benefits and privileges
(including exculpatory rights and rights to indemnification) shall not be
modified or amended without the consent of such sub-agent, and (iii) such
sub-agent shall only have obligations to the Agent and not to the Borrower, any
Lender or any other Person and none of the Borrower, any Lender or any other
Person shall have any rights, directly or indirectly, as a third party
beneficiary or otherwise, against such sub-agent.


8.4.         Agent Entitled to Act as Lender.  The agency hereby created shall in no way
impair or affect any of the rights and powers of, or impose any duties or
obligations upon, the Agent in its individual capacity as a Lender hereunder.  With respect to its participation in the
Loans, the Agent shall have the same rights and powers hereunder as any other
Lender and may exercise the same as if it were not performing the duties and
functions delegated to it hereunder, and the term “Lender” shall, unless the
context clearly otherwise indicates, include the Agent in its individual
capacity.  The Agent and its Affiliates
may accept deposits from, lend money to, own securities of, and generally
engage in any kind of banking, trust, financial advisory or other business with
the Borrower or any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from the Borrower
for services in connection herewith and otherwise without having to account for
the same to the Lenders.


8.5.         Lenders’ Representations, Warranties and Acknowledgment.


(a)  
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of the Borrower and its
Subsidiaries in connection with Credit Extensions hereunder and that it has
made and shall continue to make its own appraisal of the creditworthiness of
the Borrower and its Subsidiaries. 
Neither the Agent nor any Arranger shall have any duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of the Lenders or to provide any
Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter, and neither the Agent nor any Arranger shall have any
responsibility with respect to the accuracy of or the completeness of any
information provided to the Lenders.


(b)  
Each Lender, by delivering its signature page to this Agreement or  an Assignment Agreement and funding its
Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and
consented to and approved, each Credit Document and each other document
required to be approved by the Agent, the Requisite Lenders or the Lenders, as applicable
on the Closing Date.


8.6.         Right to Indemnity.  Each Lender, in proportion to its Pro Rata
Share, severally agrees to indemnify the Agent, to the extent that the Agent
shall not have been reimbursed by the Borrower, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements) or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against the 



 44
 









Agent
in exercising its powers, rights and remedies or performing its duties
hereunder or under the other Credit Documents or otherwise in its capacity as
the Agent in any way relating to or arising out of this Agreement or the other
Credit Documents; provided that (i) no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements if such Lender has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent
jurisdiction that such liability resulted from the Agent’s gross
negligence or willful misconduct.  If any
indemnity furnished to the Agent for any purpose shall, in the opinion of the
Agent, be insufficient or become impaired, the Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished, (ii) in no event shall this sentence
require any Lender to indemnify the Agent against any liability, obligation,
loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in
excess of such Lender’s Pro Rata Share thereof, (iii) this sentence shall not
be deemed to require any Lender to indemnify the Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement described in the proviso in the immediately preceding sentence,
and (iv) nothing in this sentence shall be deemed to affect the Borrower’s
reimbursement obligations.


8.7.         Successor Agent. 
The Agent may resign at any time by giving thirty days’ prior written
notice thereof to the Lenders and the Borrower, and the Agent may be removed at
any time with or without cause by an instrument or concurrent instruments in
writing delivered to the Borrower and the Agent and signed by the Requisite
Lenders.  Upon any such notice of
resignation or any such removal, the Requisite Lenders shall have the right,
with the consent of the Borrower (except during the continuance of an Event of
Default), such consent not to be unreasonably withheld or delayed, to appoint a
successor Agent.  Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, after consent of the
Borrower, that successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or removed
Agent and the retiring or removed Agent shall promptly transfer to such
successor Agent all records and other documents necessary or appropriate in connection
with the performance of the duties of the successor Agent under the Credit
Documents, whereupon such retiring or removed Agent shall be discharged from
its duties and obligations hereunder.  If
the Requisite Lenders have not appointed a successor agent, the Agent shall
have the right, with the consent of the Borrower (not to be unreasonably
withheld or delayed), to appoint a financial institution to act as Agent
hereunder and in any case, the Agent’s resignation shall become effective on
the thirtieth day after such notice of resignation.  If neither the Requisite Lenders nor the
Agent shall have appointed a successor to the Agent, the Requisite Lenders
shall be deemed to have succeeded to and become vested with all the rights,
powers, privileges and duties of the retiring the Agent.  After any retiring or removed Agent’s
resignation or removal hereunder as Agent, the provisions of this Section 8
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was the Agent hereunder.



 45
 









SECTION 9.   MISCELLANEOUS


9.1.         Notices.


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


(i)            if
to the Borrower or the Agent, to the address, telecopier number, electronic
mail address or telephone number specified for such Person on Appendix B;
and


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


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


(b)   Electronic
Communications.  Notices and other
communications to the Lenders hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Agent, provided that the
foregoing shall not apply to notices to any Lender pursuant to Section 2
if such Lender has notified the Agent that it is incapable of receiving notices
under such Section by electronic communication. 
The Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.


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


(c)   The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY 



 46
 









OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Agent or any of its
Related Parties (collectively, the “Agent
Parties”) have any liability to the Borrower, any Lender  or any other Person for losses, claims, damages, liabilities
or expenses of any kind (whether in tort, contract or otherwise) arising out of
the Borrower’s or the Agent’s transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities
or expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender  or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).


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


(e)   Reliance by
Agent and Lenders.  The Agent and the Lenders shall be
entitled to rely and act upon any notices purportedly given by or on behalf of
the Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof.  The Borrower shall indemnify the Agent, each
Lender and the Related Parties of each of them from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower, provided, the
Borrower shall not have any obligation to any Indemnitee (as defined below)
hereunder with respect to any Indemnified Liabilities to the extent the
Borrower has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction that such Indemnified Liabilities arise from the
gross negligence or willful misconduct of that Indemnitee.  All telephonic notices to and other
telephonic communications with the Agent may be recorded by the Agent, and each
of the parties hereto hereby consents to such recording.



 47
 









9.2.         Expenses.  Whether or not the transactions contemplated
hereby shall be consummated, the Borrower agrees to pay promptly (a) all the
actual and reasonable costs and expenses of preparation of the Credit Documents
and any consents, amendments, waivers or other modifications thereto; (b) all
the costs of furnishing all opinions by counsel for the Borrower; (c) the
reasonable fees, expenses and disbursements of counsel to the Agent and the
Arrangers in connection with the negotiation, preparation, execution and
administration of the Credit Documents and any consents, amendments, waivers or
other modifications thereto and any other documents or matters requested by the
Borrower; (d) all the actual costs and reasonable fees, expenses and
disbursements of any auditors, accountants, consultants or appraisers; (e) all
other actual and reasonable costs and expenses incurred by the Agent and the
Arrangers in connection with the syndication of the Loans and Commitments and
the negotiation, preparation and execution of the Credit Documents and any
consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (f) after the occurrence of a Default or
an Event of Default, all costs and expenses, including reasonable attorneys’
fees and costs of settlement, incurred by the Agent and the Lenders in
enforcing any Obligations of or in collecting any payments due from the
Borrower hereunder or under the other Credit Documents by reason of such
Default or Event of Default or in connection with any refinancing or
restructuring of the credit arrangements provided hereunder in the nature of a “work-out”
or pursuant to any insolvency or bankruptcy cases or proceedings.


9.3.         Indemnity.


(a)  
In addition to the payment of expenses pursuant to Section 9.2, whether
or not the transactions contemplated hereby shall be consummated, the Borrower
agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay
and hold harmless, the Agent, the Arrangers and each Lender and the officers,
partners, members, directors, trustees, advisors, employees, agents, sub-agents
and Affiliates of the Agent, each Arranger and each Lender (each, an “Indemnitee”), from and against any and all
Indemnified Liabilities; provided, the Borrower shall not have any
obligation to any Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent the Borrower has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction that such
Indemnified Liabilities arise from the gross negligence or willful misconduct
of that Indemnitee.  To the extent that
the undertakings to defend, indemnify, pay and hold harmless set forth in this
Section 9.3 may be unenforceable in whole or in part because they are violative
of any law or public policy, the Borrower shall contribute the maximum portion
that it is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of
them.


(b)  
To the extent permitted by applicable law, the Borrower shall not
assert, and the Borrower hereby waives, any claim against each Lender, each Arranger,
the Agent and their respective Affiliates, directors, employees, attorneys,
agents or sub-agents, on any theory of liability, for special, indirect,
consequential or punitive damages  (as
opposed to direct or actual damages) (whether or not the claim therefor is
based on contract, tort or duty imposed by any applicable legal requirement)
arising out of, in connection with, arising out of, as a result of, or in any
way related to, this Agreement or any Credit Document or any agreement or
instrument contemplated hereby or thereby or referred to herein or therein, the
transactions contemplated hereby or thereby, any Loan or the use of the
proceeds thereof or any act or omission or event 



 48
 









occurring
in connection therewith, and the Borrower hereby waives, releases and agrees
not to sue upon any such claim or any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor.


9.4.         Set-Off.  In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default each Lender is hereby authorized by
the Borrower at any time or from time to time subject to the consent of the
Agent (such consent not to be unreasonably withheld or delayed), without notice
to the Borrower or to any other Person (other than the Agent), any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, including Indebtedness evidenced by certificates
of deposit, whether matured or unmatured, but not including trust accounts) and
any other Indebtedness at any time held or owing by such Lender to or for the
credit or the account of the Borrower against and on account of the obligations
and liabilities of the Borrower to such Lender hereunder and under the other
Credit Documents, including all claims of any nature or description arising out
of or connected hereto or with any other Credit Document, irrespective of
whether or not (a) such Lender shall have made any demand hereunder or (b) the
principal of or the interest on the Loans or any other amounts due hereunder
shall have become due and payable pursuant to Section 2 and although such
obligations and liabilities, or any of them, may be contingent or unmatured.


9.5.         Amendments and Waivers.


(a)   Requisite
Lenders’ Consent.  Subject to the
additional requirements of Sections 9.5(b) and 9.5(c), no amendment,
modification, termination or waiver of any provision of the Credit Documents,
or consent to any departure by the Borrower therefrom, shall in any event be
effective without the written concurrence of the Requisite Lenders; provided
that the Agent may, with the consent of the Borrower only, amend, modify or
supplement this Agreement to cure any ambiguity, omission, defect or
inconsistency, so long as such amendment, modification or supplement does not
adversely affect the rights of any Lender.


(b)   Affected
Lenders’ Consent.  Without the
written consent of each Lender that would be affected thereby, no amendment,
modification, termination, or consent shall be effective if the effect thereof
would:


(i)  
extend the scheduled final maturity of any Loan or Note;


(ii)  
waive, reduce or postpone any scheduled repayment (but not prepayment);


(iii)  
reduce the rate of interest on any Loan (other than any waiver of any
increase in the interest rate applicable to any Loan pursuant to Section 2.7)
or any fee or any premium payable hereunder;


(iv)  
extend the time for payment of any such interest or fees;


(v)  
reduce the principal amount of any Loan;



 49
 









(vi)  
amend, modify, terminate or waive any provision of this Section 9.5(b),
Section 9.5(c) or any other provision of this Agreement that expressly provides
that the consent of all Lenders is required;


(vii)   amend the definition of “Requisite Lenders” or “Pro Rata Share”; or


(viii)  
consent to the assignment or transfer by the Borrower of any of its
rights and obligations under any Credit Document.


(c)   Other
Consents.  No amendment,
modification, termination or waiver of any provision of the Credit Documents,
or consent to any departure by the Borrower therefrom, shall:


(i)  
amend, modify, terminate or waive any provision of Section 8 as the same
applies to the Agent, or any other provision hereof as the same applies to the
rights or obligations of the Agent, in each case without the consent of the
Agent; or


(ii)  
amend, modify, terminate or waive any provision of Section 8 as the same
applies to any Arranger, or any other provision hereof as the same applies to
the rights or obligations of an Arranger, in each case without the consent of
such Arranger.


(d)   Execution
of Amendments, etc.  The Agent may,
but shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such Lender.  Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was
given.  No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances. 
Any amendment, modification, termination, waiver or consent effected in
accordance with this Section 9.5 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by the Borrower, on the
Borrower.


9.6.         Successors and Assigns; Participations.


(a)   Generally.  This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and the successors and assigns of the
Lenders.  Neither the Borrower’s rights
or obligations hereunder nor any interest therein may be assigned or delegated
by the Borrower without the prior written consent of all Lenders.  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, Affiliates of each of the Agent, the
Arrangers and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement.


(b)   Register.  The Borrower, the Agent and the Lenders shall
deem and treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment or Loan
shall be effective, in each case, unless and until recorded in the Register
following receipt of an Assignment Agreement effecting the assignment or
transfer thereof, together with the required forms and certificates regarding
tax matters and any fees payable in connection with such assignment, in each
case, as provided in Section 9.6(d). 
Each


 



 50















assignment
shall be recorded in the Register on the Business Day the Assignment Agreement
is received by the Agent, if received by 12:00 noon New York City time, and on
the following Business Day if received after such time, prompt notice thereof
shall be provided to the Borrower and a copy of such Assignment Agreement shall
be maintained.  The date of such
recordation of a transfer shall be referred to herein as the “Assignment Effective Date.” 
Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is listed in the
Register as a Lender shall be conclusive and binding on any subsequent holder,
assignee or transferee of the corresponding Commitments or Loans.


(c)   Right
to Assign.  Each Lender shall have
the right at any time to sell, assign or transfer all or a portion of its
rights and obligations under this Agreement, including all or a portion of its
Commitment or Loans owing to it or other Obligations (provided, however,
that each assignment shall be of a uniform, and not varying, percentage of all
rights and obligations under and in respect of any applicable Loan) to any
Person meeting the criteria of the definition of the term of “Eligible Assignee”
upon the giving of notice to the Borrower and the Agent; provided,
further each such assignment pursuant to this Section 9.6(c) shall be in an
aggregate amount of not less than $2,500,000 (or such lesser amount as may be
agreed to by the Borrower and the Agent or as shall constitute the amount of
the Loan of the assigning Lender).


(d)   Mechanics.  Assignments of Loans by Lenders may be made
with a manually executed Assignment Agreement and delivery to the Agent of an
Assignment Agreement.  Assignments made
pursuant to the foregoing provision shall be effective as of the Assignment
Effective Date.  In connection with all
assignments there shall be delivered to the Agent such forms, certificates or
other evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may be
required to deliver pursuant to Section 2.16(c), together with payment to the Agent of a registration and processing fee of
$3,500 (except that no such registration and processing fee shall be payable (y)
in connection with an assignment by or to GSCP or any Affiliate thereof or (z)
in the case of an Assignee which is already a Lender or is an Affiliate or
Related Fund of a Lender).


(e)   Representations
and Warranties of Assignee.  Each
Lender, upon execution and delivery hereof or upon succeeding to an interest in
the Commitments and Loans, as the case may be, represents and warrants as of
the Closing Date or as of the Assignment Effective Date that (i) it is an
Eligible Assignee; (ii) it has experience and expertise in the making of or
investing in commitments or  loans such
as the applicable Commit­ments or Loans, as the case may be; and (iii) it will
make or invest in, as the case may be, its Commitments or Loans for its own
account in the ordinary course and without a view to distribution of such
Commitments or Loans within the meaning of the Securities Act or the Exchange
Act or other federal securities laws (it being understood that, subject to the
provisions of this Section 9.6, the disposition of such Commitments or Loans or
any interests therein shall at all times remain within its exclusive control).


(f)   Effect
of Assignment.  Subject to the terms
and conditions of this Section 9.6, as of the “Assignment Effective Date” (i)
the assignee thereunder shall have the rights and obligations of a “Lender”
hereunder to the extent of its interest in the Loans as reflected in the
Register and shall thereafter be a party hereto and a “Lender” for all purposes
hereof; (ii) the assigning Lender thereunder shall, to the extent that rights
and obligations hereunder have been 



 51
 









assigned
to the assignee, relinquish its rights (other than any rights which survive the
termination hereof under Section 9.8) and be released from its obligations
hereunder (and, in the case of an assignment covering all or the remaining
portion of an assigning Lender’s rights and obligations hereunder, such Lender
shall cease to be a party hereto on the Assignment Effective Date; provided,
anything contained in any of the Credit Documents to the contrary
notwithstanding, and (y) such assigning Lender shall continue to be entitled to
the benefit of all indemnities hereunder as specified herein with respect to
matters arising out of the prior involvement of such assigning Lender as a
Lender hereunder); and (iii) if any such assignment occurs after the issuance
of any Note hereunder, the assigning Lender shall, upon the effectiveness of
such assignment or as promptly thereafter as practicable, surrender its
applicable Notes to the Agent for cancellation, and thereupon the Borrower
shall issue and deliver new Notes, if so requested by the assignee and/or
assigning Lender, to such assignee and/or to such assigning Lender, with
appropriate insertions, to reflect the outstanding Loans of the assignee and/or
the assigning Lender.


(g)   Participations.


(i)  
Each Lender shall have the right at any time to sell one or more
participations to any Person (other than the Borrower, any of its Subsidiaries
or any of its Affiliates) in all or any part of its Commitments, Loans or in
any other Obligation.


(ii)  
The holder of any such participation, other than an Affiliate of the
Lender granting such participation, shall not have the right to approve any
amendment, modification or waiver of any provision of this Agreement or any
Note except to the extent any such amendment, modification or waiver that would
(A) extend the final scheduled maturity of any Loan or Note in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant’s
participation over the amount thereof then in effect (it being understood that
a waiver of any Default or Event of Default or of a mandatory reduction in the
Commitment shall not constitute a change in the terms of such participation,
and that an increase in any Commitment or Loan shall be permitted without the
consent of any participant if the participant’s participation is not increased
as a result thereof) or (B) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement.


(iii)    
The Borrower agrees that each participant shall be entitled to the
benefits of Sections 2.14(c), 2.15 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (c) of
this Section; provided, (x) a participant shall not be entitled to
receive any greater payment under Section 2.15 or 2.16 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such participant, unless the sale of the participation to such
participant is made with the Borrower’s prior written consent, (y) a
participant that would be a Non-US Lender if it were a Lender shall not
be entitled to the benefits of Section 2.16 unless the Borrower is notified of
the participation sold to such participant and such participant agrees, for the
benefit of the Borrower, to comply with Section 2.16 as though it were a Lender
and (z) such Participant agrees to be subject to Section 2.17 as though it were
a Lender; provided further that, except as specifically set forth in
clauses (x) and (y) of this sentence, nothing herein shall require any notice
to the Borrower or 



 52
 









any
other Person in connection with the sale of any participation.  To the extent permitted by law, each
participant also shall be entitled to the benefits of Section 9.4 as though it
were a Lender.


(h)   Certain
Other Assignments and Participations. 
In addition to any other assignment or participation permitted pursuant
to this Section 9.6 any Lender may assign and/or pledge all or any portion of
its Loans, the other Obligations owed by or to such Lender, and its Notes, if
any, to secure obligations of such Lender including any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors and
any operating circular issued by such Federal Reserve Bank; provided,
that no Lender, as between the Borrower and such Lender, shall be relieved of
any of its obligations hereunder as a result of any such assignment and pledge,
and provided  further, that in no event shall the applicable
Federal Reserve Bank, pledgee or trustee, be considered to be a “Lender” or be
entitled to require the assigning Lender to take or omit to take any action
hereunder.


9.7.         Independence of Covenants.  All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.


9.8.         Survival of Representations, Warranties and Agreements.  All representations, warranties and
agreements made herein shall survive the execution and delivery hereof and the
making of any Credit Extension. 
Notwithstanding anything herein or implied by law to the contrary, the
agreements of the Borrower set forth in Sections 2.14(c), 2.15, 2.16, 9.2, 9.3
and 9.4 and the agreements of the Lenders set forth in Sections 2.13,
8.3(b) and 8.6 shall survive the payment of the Loans and the termination
hereof.


9.9.         No Waiver; Remedies Cumulative.  No failure or delay on the part of the Agent
or any Lender in the exercise of any power, right or privilege hereunder or
under any other Credit Document shall impair such power, right or privilege or
be construed to be a waiver of any default or acquiescence therein, nor shall
any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other power, right or
privilege.  The rights, powers and
remedies given to the Agent and each Lender hereby are cumulative and shall be
in addition to and independent of all rights, powers and remedies existing by
virtue of any statute or rule of law or in any of the other Credit
Documents.  Any forbearance or failure to
exercise, and any delay in exercising, any right, power or remedy hereunder
shall not impair any such right, power or remedy or be construed to be a waiver
thereof, nor shall it preclude the further exercise of any such right, power or
remedy.


9.10.       Marshalling; Payments Set Aside.  Neither the Agent nor any Lender shall be
under any obligation to marshal any assets in favor of the Borrower or any
other Person or against or in payment of any or all of the Obligations.  To the extent that the Borrower makes a
payment or payments to the Agent or the Lenders (or to the Agent, on behalf of
the Lenders), or the Agent or the Lenders exercise their rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any 



 53
 









other
party under any bankruptcy law, any other state or federal law, common law or
any equitable cause, then, to the extent of such recovery, the obligation or
part thereof originally intended to be satisfied, and all rights and remedies
therefor or related thereto, shall be revived and continued in full force and
effect as if such payment or payments had not been made or such setoff had not
occurred.


9.11.       Severability.  In case any provision in or obligation
hereunder or under any other Credit Document shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.


9.12.       Obligations Several; Independent Nature of Lenders’ Rights.  The obligations of the Lenders hereunder are
several and no Lender shall be responsible for the obligations or Commitment of
any other Lender hereunder.  Nothing
contained herein or in any other Credit Document, and no action taken by the
Lenders pursuant hereto or thereto, shall be deemed to constitute the Lenders
as a partnership, an association, a joint venture or any other kind of
entity.  The amounts payable at any time
hereunder to each Lender shall be a separate and independent debt, and each
Lender shall be entitled to protect and enforce its rights arising out hereof
and it shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.


9.13.       Headings.  Section headings herein are included
herein for convenience of reference only and shall not constitute a part hereof
for any other purpose or be given any substantive effect.


9.14.       APPLICABLE LAW.  THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


9.15.       CONSENT TO JURISDICTION.  ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST THE BORROWER ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT
DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK.  BY EXECUTING AND DELIVERING THIS AGREEMENT,
THE BORROWER, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A)
ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE
OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE BORROWER AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 9.1; (D) AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
THE BORROWER IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES 



 54
 









THAT
THE AGENT, THE ARRANGERS AND THE LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST THE BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION.


9.16.       WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY
AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT
DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
LOAN TRANSACTION OR THE LENDER/THE BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED.  THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED
IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS.  EACH
PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER
INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN
ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS
WAIVER IN ITS RELATED FUTURE DEALINGS. 
EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SECTION 9.16 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE
HEREUNDER.  IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


9.17        Confidentiality.  The Agent, each Arranger and each Lender
shall hold all non-public information regarding the Borrower and its
Subsidiaries and their businesses identified as such by the Borrower and
obtained by such Lender pursuant to the requirements hereof in accordance with
such Lender’s customary procedures for handling confidential information
of  such nature, it being understood and
agreed by the Borrower that, in any event, the Agent, each Arranger and each
Lender may make (i) disclosures of such information to Affiliates of such Lender,
such Arranger or the Agent and to their respective agents and advisors (and to
other Persons authorized by a Lender, an Arranger or the Agent to organize,
present or disseminate such information in connection with disclosures
otherwise made in accordance with this Section 9.17), (ii) disclosures of such
information reasonably required by any bona fide or potential assignee,
transferee or participant in connection with the contemplated assignment,
transfer or participation of any Loans or any participations therein or by any
direct or indirect contractual counterparties (or the professional advisors
thereto) to any swap or derivative 



 55
 









transaction
relating to the Borrower and its obligations (provided, such assignees,
transferees, participants, counterparties and advisors are advised of and agree
to be bound by either the provisions of this Section 9.17 or other provisions
at least as restrictive as this Section 9.17), (iii) disclosure to any rating
agency when required by it, provided that, prior to any disclosure, such
rating agency shall undertake in writing to preserve the confidentiality of any
confidential information relating to the Borrower received by it from the
Agent, any Arrangers or any Lender, and (iv) disclosures required or requested
by any governmental agency or representative thereof or by the NAIC or pursuant
to legal or judicial process; provided, unless specifically prohibited
by applicable law or court order, each Lender, each Arranger and the Agent
shall make reasonable efforts to notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with any examination of the financial condition or other routine
examination of such Lender by such governmental agency) for disclosure of any
such non-public information prior to disclosure of such information.  In addition, the Agent, each Arranger and
each Lender may disclose the existence of this Agreement and the information
about this Agreement to market data collectors, similar services providers to
the lending industry, and service providers to the Agent, the Arrangers and the
Lenders in connection with the administration and management of this Agreement
and the other Credit Documents.


9.18.       Counterparts.  This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed
an original, but all such counterparts together shall constitute but one and
the same instrument.


9.19.       Effectiveness.  This Agreement shall become effective upon
the execution of a counterpart hereof by each of the parties hereto and receipt
by the Borrower and the Agent of written or telephonic notification of such
execution and authorization of delivery thereof.


9.20.       Patriot Act.  Each Lender and the Agent (for itself and not
on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
or the Agent, as applicable, to identify the Borrower in accordance with the
Act.


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


9.22.       No Advisory or
Fiduciary Responsibility.  In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other modification hereof or of any
Note), the Borrower acknowledges and agrees that: (i) (A) the arranging and
other services regarding this Agreement provided by the Agent and the Arrangers 



 56
 









are arm’s-length
commercial transactions between the Borrower and its Affiliates, on the one
hand, and the Agent and the Arrangers, on the other hand, (B)  the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C)
the Borrower is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby; (ii) (A) the
Agent and the Arrangers  each is
and has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not be acting
as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or
any other Person and (B) neither the Agent nor any Arranger has any obligation
to the Borrower or any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents; and (iii) the Agent and the Arrangers and their
respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates,
and neither the Agent nor any Arranger has any obligation to disclose any of
such interests to the Borrower or its Affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and
releases any claims that it may have against the Agent and the Arrangers with
respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.


[Remainder
of page intentionally left blank]


 



 57















 


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


 


	
  

  	
  NATIONAL SEMICONDUCTOR CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lewis Chew

  
	
   

  	
  Name:

  	
  Lewis Chew

  
	
   

  	
  Title:

  	
  Senior Vice President, Finance and

  
	
   

  	
   

  	
  Chief Financial Officer

  



 













 


 


	
  

  	
  BANK OF AMERICA,
  N.A.

  
	
   

  	
  as Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dora A. Brown

  
	
   

  	
   

  	
  Name: Dora A. Brown

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA,
  N.A.

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christina Felsing

  
	
   

  	
   

  	
  Name: Christina Felsing

  
	
   

  	
   

  	
  Title: Vice President

  



 


 













 


 


	
  

  	
  GOLDMAN SACHS
  CREDIT PARTNERS L.P.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce Mendelsohn

  
	
   

  	
   

  	
  Name: Bruce Mendelsohn

  
	
   

  	
   

  	
  Title: Authorized Signatory

  



 













 


 


	
  

  	
  JPMORGAN CHASE
  BANK, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony Galea

  
	
   

  	
   

  	
  Name: Anthony Galea

  
	
   

  	
   

  	
  Title: Vice President

  



 













 


	
  

  	
  MIZUHO
  CORPORATE BANK (USA),

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bertram H. Tang

  
	
   

  	
   

  	
  Name: Bertram H. Tang

  
	
   

  	
   

  	
  Title: Senior Vice President

  



 













 


	
  

  	
  SUMITOMO MITSUI
  BANKING CORPORATION,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Yoshihiro Hyakutome

  
	
   

  	
   

  	
  Name: Yoshihiro Hyakutome

  
	
   

  	
   

  	
  Title: General Manager

  



 













 


	
  

  	
  BNP PARIBAS,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stuart Darby

  
	
   

  	
   

  	
  Name: Stuart Darby

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jamie Dillon

  
	
   

  	
   

  	
  Name: Jamie Dillon

  
	
   

  	
   

  	
  Title: Managing Director

  



 













 


	
  

  	
  KBC BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William Cavanaugh

  
	
   

  	
   

  	
  Name: William Cavanaugh

  
	
   

  	
   

  	
  Title: Vice President

  



 


	
  

  	
  By:

  	
  /s/ Sandra T. Johnson

  
	
   

  	
   

  	
  Name: Sandra T. Johnson

  
	
   

  	
   

  	
  Title: First Vice President

  



 













 


	
  

  	
  UNION BANK OF
  CALIFORNIA, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Allan B. Miner

  
	
   

  	
   

  	
  Name: Allan B. Miner

  
	
   

  	
   

  	
  Title: Vice President

  



 













 


	
  

  	
  FIFTH THIRD
  BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris Motley

  
	
   

  	
   

  	
  Name: Chris Motley

  
	
   

  	
   

  	
  Title: Vice President

  



 













 


	
  

  	
  THE GOVERNOR AND COMPANY OF THE
  BANK
  OF IRELAND,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel McAneney

  
	
   

  	
   

  	
  Name: Daniel McAneney

  
	
   

  	
   

  	
  Title: Authorized signatory

  



 


	
  

  	
  By:

  	
  /s/ Barry Heraty

  
	
   

  	
   

  	
  Name: Barry Heraty

  
	
   

  	
   

  	
  Title: Authorized signatory

  



 













 


	
  

  	
  BAYERISCHE
  LANDESBANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matthew DeCarlo

  
	
   

  	
   

  	
  Matthew DeCarlo

  
	
   

  	
   

  	
  Vice President

  



 


	
  

  	
  By:

  	
  /s/ Donna M. Quilty

  
	
   

  	
   

  	
  Donna M. Quilty

  
	
   

  	
   

  	
  Vice President

  



 













 


	
  

  	
  COMERICA
  WEST INCORPORATED,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elise M. Walker

  
	
   

  	
   

  	
  Name: Elise M. Walker

  
	
   

  	
   

  	
  Title: Vice President

  



 













 


	
  

  	
  NORTHERN TRUST
  COMPANY,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karen Dahl

  
	
   

  	
   

  	
  Name: Karen Dahl

  
	
   

  	
   

  	
  Title: Senior Vice President

  



 













 


	
  

  	
  U.S. BANK
  NATIONAL ASSOCIATION,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Holland H. Williams

  
	
   

  	
   

  	
  Name: Holland H. Williams

  
	
   

  	
   

  	
  Title: AVP

  



 













 


	
  

  	
  WACHOVIA BANK,
  NATIONAL ASSOCIATION,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Garry Handelman

  
	
   

  	
   

  	
  Name: Garry Handelman

  
	
   

  	
   

  	
  Title: Senior Vice President

  



 


















 


APPENDIX A

TO
CREDIT AGREEMENT


Commitments


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Pro

  Rata Share

  
	
  Goldman Sachs Credit Partners L.P.

  	
   

  	
  $

  	
  46,000,000

  	
   

  	
  9.2%

  
	
  Bank of America,
  N.A.

  	
   

  	
  $

  	
  46,000,000

  	
   

  	
  9.2%

  
	
  JPMorgan Chase
  Bank, N.A.

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  8.0%

  
	
  Mizuho Corporate Bank (USA)

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  8.0%

  
	
  Sumitomo Mitsui
  Banking Corporation

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  8.0%

  
	
  BNP Paribas

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  8.0%

  
	
  KBC Bank

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  8.0%

  
	
  Union Bank of
  California, N.A.

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  8.0%

  
	
  Fifth Third Bank

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  4.8%

  
	
  The Governor and
  Company of the Bank of Ireland

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  4.8%

  
	
  Bayerische
  Landesbank

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  4.8%

  
	
  Comerica Bank

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  4.8%

  
	
  Northern Trust
  Company

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  4.8%

  
	
  US Bank National
  Association

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  4.8%

  
	
  Wachovia Bank,
  National Association

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  4.8%

  
	
  Total

  	
   

  	
  $

  	
  500,000,000

  	
   

  	
  100%

  



 



 APPENDIX A-1















APPENDIX B

TO
CREDIT AGREEMENT


Notice Addresses


NATIONAL SEMICONDUCTOR CORPORATION


2900
Semiconductor Road
 Mail Stop G3-135
 Santa Clara, CA 
95052-8090
 Attention: 
General Counsel
 Facsimile: 
(408) 733-0293


with a copy to:


LATHAM & WATKINS LLP


505 Montgomery
Street, Suite 2000
 San Francisco, CA 94111-2562
 Attention: 
Ken Blohm
 Facsimile:  
415-395-8095



 APPENDIX B-2
 









BANK OF AMERICA, N.A.,


the Agent’s Principal Office and as a Lender:


Bank of
America
 Agency Management
 WA1-501-32-37
 800 Fifth Avenue, Floor 32
 Seattle WA  98104


Attn:  Dora Brown, Vice President
 Telephone: 
206-358-0101
 FAX: 206-358-0971
 email: dora.a.brown@bankofamerica.com


with a copy to:


 


SHEARMAN
& STERLING LLP


599 Lexington
Avenue

New York, NY 10022


Attn:  Susan L. Hobart

FAX:  646-848-7848

enail:  shobart@shearman.com


 



 APPENDIX B-3