exv10w1






Exhibit
10.1





 

 






Published CUSIP Number: ____________




SECOND AMENDED AND RESTATED



CREDIT AGREEMENT




Dated as of November 24, 2009




among




COMMERCIAL METALS COMPANY,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,




BNP PARIBAS,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

and

WELLS FARGO HSBC TRADE BANK,

as Co-Syndication Agents,




and




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC,

BNP PARIBAS SECURITIES CORP.,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

and

WELLS FARGO SECURITIES, LLC,

as

Joint Lead Arrangers and Joint Book Managers




 

 







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	Section   	 	Page	 
	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	 	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	26	 
	1.03 Accounting Terms
	 	 	27	 
	1.04 Rounding
	 	 	28	 
	1.05 Exchange Rates; Currency Equivalents
	 	 	28	 
	1.06 Additional Alternative Currencies
	 	 	28	 
	1.07 Change of Currency
	 	 	29	 
	1.08 Times of Day
	 	 	30	 
	1.09 Letter of Credit Amounts
	 	 	30	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	 	 
	 
	 	 	 	 
	2.01 Revolving Credit Loans
	 	 	30	 
	2.02 Borrowings, Conversions and Continuations of Revolving Credit Loans
	 	 	30	 
	2.03 Letters of Credit
	 	 	32	 
	2.04 Swing Line Loans 
	 	 	41	 
	2.05 Prepayments 
	 	 	44	 
	2.06 Termination or Reduction of Commitments
	 	 	45	 
	2.07 Repayment of Loans
	 	 	46	 
	2.08 Interest 
	 	 	46	 
	2.09 Fees
	 	 	47	 
	2.10 Computation of Interest and Fees
	 	 	48	 
	2.11 Evidence of Debt
	 	 	48	 
	2.12 Payments Generally
	 	 	48	 
	2.13 Sharing of Payments by Lenders
	 	 	50	 
	2.14 Increase in Commitments 
	 	 	51	 
	2.15 Cash Collateral and Other Credit Support 
	 	 	52	 
	2.16 Defaulting Lenders
	 	 	54	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	 	 
	 
	 	 	 	 
	3.01 Taxes 
	 	 	55	 
	3.02 Illegality
	 	 	59	 
	3.03 Inability to Determine Rates
	 	 	60	 
	3.04 Increased Costs; Reserves on Eurocurrency Rate Loans 
	 	 	60	 
	3.05 Compensation for Losses
	 	 	62	 
	3.06 Mitigation Obligations; Replacement of Lenders 
	 	 	63	 
	3.07 Survival
	 	 	64	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	 	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension
	 	 	64	 
	4.02 Conditions to all Credit Extensions
	 	 	65	 






 









 




TABLE OF CONTENTS (continued)





	 	 	 	 	 
	Section   	 	Page	 
	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	 	 	 	 
	5.01 Subsidiaries
	 	 	66	 
	5.02 Existence, Qualification and Power; Compliance with Laws
	 	 	67	 
	5.03 Authorization; No Contravention
	 	 	67	 
	5.04 Governmental Authorization; Other Consents
	 	 	67	 
	5.05 Binding Effect
	 	 	67	 
	5.06 Financial Statements; No Material Adverse Effect 
	 	 	67	 
	5.07 Litigation 
	 	 	68	 
	5.08 No Default
	 	 	68	 
	5.09 Ownership of Property; Liens
	 	 	68	 
	5.10 Environmental Compliance
	 	 	68	 
	5.11 Insurance
	 	 	69	 
	5.12 Taxes
	 	 	69	 
	5.13 ERISA Compliance 
	 	 	69	 
	5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act 
	 	 	70	 
	5.15 Disclosure
	 	 	70	 
	5.16 Compliance with Laws
	 	 	70	 
	5.17 Solvent
	 	 	70	 
	5.18 Taxpayer Identification Number; Other Identifying Information
	 	 	70	 
	5.19 Intellectual Property; Licenses, Etc
	 	 	71	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	71	 
	6.02 Certificates; Other Information
	 	 	72	 
	6.03 Notices
	 	 	74	 
	6.04 Payment of Obligations
	 	 	74	 
	6.05 Preservation of Existence, Etc
	 	 	75	 
	6.06 Maintenance of Properties
	 	 	75	 
	6.07 Maintenance of Insurance
	 	 	75	 
	6.08 Compliance with Laws
	 	 	75	 
	6.09 Books and Records
	 	 	75	 
	6.10 Inspection Rights
	 	 	75	 
	6.11 Use of Proceeds
	 	 	76	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	7.01 Liens
	 	 	76	 
	7.02 Mergers and Consolidations
	 	 	77	 
	7.03 Sales of Assets
	 	 	78	 
	7.04 Change in Nature of Business
	 	 	78	 
	7.05 Transactions with Affiliates
	 	 	78	 
	7.06 Burdensome Agreements
	 	 	79	 
	7.07 Use of Proceeds
	 	 	79	 
	7.08 Interest Coverage Ratio
	 	 	79	 






ii









 





TABLE OF CONTENTS (continued)





	 	 	 	 	 
	Section   	 	Page	 
	 
	7.09 Debt to Capitalization Ratio
	 	 	79	 
	7.10 Liquidity
	 	 	79	 
	7.11 ERISA
	 	 	79	 
	7.12 Accounting Changes
	 	 	80	 
	7.13 Speculative Hedges
	 	 	80	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	80	 
	8.02 Remedies Upon Event of Default
	 	 	82	 
	8.03 Application of Funds
	 	 	82	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	 	 
	 
	 	 	 	 
	9.01 Appointment and Authority
	 	 	83	 
	9.02 Rights as a Lender
	 	 	83	 
	9.03 Exculpatory Provisions
	 	 	84	 
	9.04 Reliance by Administrative Agent
	 	 	84	 
	9.05 Delegation of Duties
	 	 	85	 
	9.06 Resignation of Administrative Agent 
	 	 	85	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	86	 
	9.08 No Other Duties, Etc
	 	 	86	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	87	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	10.01 Amendments, Etc
	 	 	87	 
	10.02 Notices; Effectiveness; Electronic Communication 
	 	 	89	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	91	 
	10.04 Expenses; Indemnity; Damage Waiver 
	 	 	91	 
	10.05 Payments Set Aside
	 	 	94	 
	10.06 Successors and Assigns 
	 	 	95	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	99	 
	10.08 Right of Setoff
	 	 	100	 
	10.09 Interest Rate Limitation
	 	 	100	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	101	 
	10.11 Survival of Representations and Warranties
	 	 	101	 
	10.12 Severability
	 	 	101	 
	10.13 Replacement of Lenders
	 	 	101	 
	10.14 Governing Law 
	 	 	102	 
	10.15 Waiver of Right to Trial by Jury
	 	 	103	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	103	 
	10.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	104	 
	10.18 USA PATRIOT Act
	 	 	104	 
	10.19 Judgment Currency
	 	 	104	 
	10.20 Exceptions to Covenants
	 	 	105	 
	10.21 ENTIRE AGREEMENT
	 	 	105	 






iii









 





TABLE OF CONTENTS (continued)





	 	 	 	 	 
	Section    	 	Page	 

	 
	SIGNATURES
	 	 	S-1	 







iv









 








SCHEDULES




	 	 	 
	1.01

	 	Existing Letters of Credit
	1.02

	 	Mandatory Cost Formulae
	2.01

	 	Commitments and Applicable Percentages
	5.01

	 	Subsidiaries
	5.05

	 	Supplement to Interim Financial Statements
	7.01

	 	Existing Liens
	10.02

	 	Administrative Agent’s Office; Certain Addresses for Notices






EXHIBITS




	 	 	 
	 

	 	Form of
	 
	 	 
	A

	 	Revolving Credit Loan Notice
	B

	 	Swing Line Loan Notice
	C

	 	Revolving Credit Loan Note
	D

	 	Swing Line Note
	E

	 	Compliance Certificate
	F-1

	 	Assignment and Assumption
	F-2

	 	Administrative Questionnaire







 









 








SECOND AMENDED AND RESTATED CREDIT AGREEMENT




     This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of
November 24, 2009, among COMMERCIAL METALS COMPANY, a Delaware corporation (the
“Borrower”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.



     The Borrower, certain of the Lenders and the Administrative Agent are parties to that certain
First Amended and Restated Credit Agreement, dated as of May 23, 2005 (as heretofore amended and as
in effect on the date of this Agreement, the “Existing Credit Agreement”). The parties
hereto desire to amend and restate the Existing Credit Agreement as hereafter set forth.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree that the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following capitalized terms shall have the
meanings set forth below:



     “Act” has the meaning specified in Section 10.18.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



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



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



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



     “Aggregate Commitments” means the Commitments of all the Lenders.



     “Agreement” means this Credit Agreement.



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



1









 





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



     “Applicable Law” means (a) in respect of any Person, all provisions of Laws applicable
to such Person, and all orders and decrees of all courts and determinations of arbitrators
applicable to such Person and (b) in respect of contracts made or performed in the State of Texas,
“Applicable Law” shall also mean the Laws of the United States of America, including,
without limiting the foregoing, 12 USC Sections 85 and 86, as amended to the date hereof and as the
same may be amended at any time and from time to time hereafter, and any other statute of the
United States of America now or at any time hereafter prescribing the maximum rates of interest on
loans and extensions of credit, and the Laws of the State of Texas, including, without limitation,
Chapter 303 of the Texas Finance Code, as amended, and any other statute of the State of Texas now
or at any time hereafter prescribing maximum rates of interest on loans and extensions of credit;
provided that the parties hereto agree pursuant to Texas Finance Code Section 346.004 that the
provisions of Chapter 346 of the Texas Finance Code, shall not apply to Loans, the Letters of
Credit, this Agreement, the Notes or any other Loan Documents.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time. If the commitment of each Lender to make Loans and the obligation of the
L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or
if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in effect, giving effect
to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Debt Rating as set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 	 	 	 	 	 	 	 	Eurocurrency Rate	 	 
	Pricing	 	Debt Ratings	 	 	 	 	 	Letters of Credit	 	 
	Level	 	S&P/Moody’s	 	Facility Fee	 	Daily Floating LIBOR Rate	 	Base Rate
	1
	 	3 A- / A3	 	 	0.300	%	 	 	1.950	%	 	 	0.950	%
	2
	 	BBB+ / Baa1	 	 	0.375	%	 	 	2.125	%	 	 	1.125	%
	3
	 	BBB / Baa2	 	 	0.500	%	 	 	2.250	%	 	 	1.250	%
	4
	 	BBB- / Baa3	 	 	0.600	%	 	 	2.650	%	 	 	1.650	%
	5
	 	< BBB- / Baa3	 	 	0.750	%	 	 	3.250	%	 	 	2.250	%






2









 






     “Debt Rating” means, as of any date of determination, the rating as determined
by either S&P or Moody’s of the Borrower’s non-credit-enhanced, senior unsecured long-term
debt (collectively, the “Debt Ratings”); provided that (a) if the respective
Debt Ratings issued by the foregoing rating agencies differ by one level, then the Pricing
Level for the higher of such Debt Ratings shall apply (with the Debt Rating for Pricing
Level 1 being the highest and the Debt Rating for Pricing Level 5 being the lowest); (b) if
there is a split in Debt Ratings of more than one level, then the Pricing Level that is one
level lower than the Pricing Level of the higher Debt Rating shall apply; (c) if the
Borrower has only one Debt Rating, the Pricing Level that is one level lower than that of
such Debt Rating shall apply; and (d) if the Borrower does not have any Debt Rating, Pricing
Level 5 shall apply.


Each change in the Applicable Rate resulting from a publicly announced change in the Debt Rating
shall be effective, in the case of an upgrade, on the date of such public announcement and ending
on the date immediately preceding the effective date of the next such change and, in the case of a
downgrade, during the period commencing on the date of the public announcement thereof and ending
on the date immediately preceding the effective date of the next such change.



Notwithstanding the above, from and including the Closing Date to but not including the date that
the Borrower delivers a Compliance Certificate pursuant to Section 6.02(a) indicating that
the Interest Coverage Ratio for the four fiscal quarter period covered by such Compliance
Certificate is at least 2.50 to 1.00, the Applicable Rate set forth above for the Eurocurrency
Rate, Letters of Credit, the Daily Floating LIBOR Rate and the Base Rate shall be increased by a
premium of 0.500%. Thereafter, at such time, if any, that the Borrower delivers a Compliance
Certificate pursuant to Section 6.02(a) indicating that the Interest Coverage Ratio is less
than 2.50 to 1.00 for the four fiscal quarter period covered by such Compliance Certificate, the
Applicable Rate set forth above for the Eurocurrency Rate, Letters of Credit, the Daily Floating
LIBOR Rate and the Base Rate shall be increased by a premium of 0.500% until the date of delivery
of a Compliance Certificate, if any, indicating that the Interest Coverage Ratio for the four
fiscal quarter period covered by such Compliance Certificate is at least 2.50 to 1.00.




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



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



     “Arrangers” means, collectively, Banc of America Securities LLC, doing business as
Bank of America Merrill Lynch, in its capacity as a joint lead arranger and a joint book manager
BNP Paribas Securities Corp., in its capacity as a joint lead arranger and a joint book manager,
The Bank of Mitsubishi UFJ, Ltd., in its capacity as a joint lead arranger and a joint book
manager and Wells Fargo Securities LLC, in its capacity as a joint lead arranger and a joint book
manager.



3









 





     “Asset Sale” means a “true sale” by the Borrower or an Asset Sale Subsidiary of an
account receivable of the Borrower or such Asset Sale Subsidiary for fair consideration and
reasonably equivalent value.



     “Asset Sale Subsidiaries” means, collectively, CMC Australia Pty., Limited, Coil
Steels Group Pty Limited, CMC Zawiercie SA, CMC Europe AG, Commercial Metals Deutschland GmbH and
CMC UK Limited, which Subsidiaries are engaged in Asset Sales.



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



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit F-1 or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended August 31, 2009, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



     “Auto-Extension Letter of Credit” has the meaning specified in
Section 2.03(b)(iii).



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to
Section 8.02.



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



     “Base Rate"  means for any day a fluctuating rate per annum equal to the
highest of (a) the Federal Funds Rate plus 0.50%, (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,” and (c) the
Eurocurrency Rate (determined in accordance with clause (b) of the definition thereof) plus 0.50%.
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 the Base Rate due to a change in Federal Funds Rate, the prime rate or the
Eurocurrency Rate shall take effect at the opening of business on the day specified in the public
announcement of such change.



4









 





     “Base Rate Loan” means a Revolving Credit Loan that bears interest based on the Base
Rate. All Base Rate Loans shall be denominated in Dollars.



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



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



     “Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing, as the
context may require.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is
located and:




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




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




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




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



     “Canadian Dollars” means the lawful currency of Canada.



     “Capital Lease” means, as of any date, any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with GAAP to be
capitalized on the balance sheet of the lessee.



5









 





     “Capitalized Rentals” means, for any Person and as of any date of any determination,
the amount at which the aggregate Rentals due and to become due under all Capital Leases under
which such Person is a lessee would be reflected as a liability on a consolidated balance sheet of
such Person.



     “Cash and Cash Equivalents” means (a) cash, (b) marketable obligations issued or
unconditionally guaranteed by the U.S. Government or issued by any of its agencies and backed by
the full faith and credit of the U.S., in each case maturing within one year from the date of
acquisition (and investments in mutual funds investing primarily in those obligations);
(c) short-term investment grade domestic and eurodollar certificates of deposit or time deposits
that are fully insured by the Federal Deposit Insurance Corporation or are issued by commercial
banks having combined capital, surplus, and undivided profits of not less than $100,000,000 (as
shown on its most recently published statement of condition); (d) commercial paper and similar
obligations rated “P-1” or “P-2” by Moody’s; or “A-1” or “A-2” by S&P; (e) readily marketable
tax-free municipal bonds of a domestic issuer rated “Aaa” by Moody’s, or “AAA” by S&P, and maturing
within one year from the date of issuance (and investments in mutual funds investing primarily in
those bonds); (f) money market mutual funds or similar obligations rated Aaa by Moody’s or AAA by
S&P; and (g) demand deposit accounts maintained in the ordinary course of business.



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuers or Swing Line Lender (as applicable) and the Lenders, as
collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of
Lenders to fund participations in respect of either thereof (as the context may require), cash or
deposit account balances pursuant to documentation in form and substance satisfactory to (a) the
Administrative Agent and (b) the L/C Issuers or the Swing Line Lender (as applicable). “Cash
Collateral” shall have a meaning correlative to the foregoing.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means, with respect to any Person, an event or series of events by
which:




     (a) any “person” or “group” (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of
such person or its subsidiaries, and any person or entity acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire (such right, an “option
right”), whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 50% or more of the Voting Shares of such Person; or



6









 






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



     “Closing Date” means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable payment).



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means, as to each Lender, its obligation to (a) make Revolving Credit
Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C
Obligations pursuant to Section 2.03, and (c) purchase participations in Swing Line Loans
pursuant to Section 2.04, in an aggregate principal amount at any one time outstanding not
to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this Agreement.



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



     “Consolidated EBITDA” means Consolidated Net Income plus, without duplication and to
the extent deducted in determining Consolidated Net Income, (a) interest expense, (b) income taxes,
and (c) depreciation and amortization expense, which will include any non-recurring, non-cash
write-offs, impairments, or other charges on any asset that otherwise in the normal course would
have been depreciated or amortized over its useful life including any write-off of good will, in
each case of the Borrower and its Subsidiaries and computed on a consolidated basis and in
accordance with GAAP.



     “Consolidated Funded Debt” means all Funded Debt of the Borrower and its consolidated
Subsidiaries, determined on a consolidated basis and eliminating intercompany items.



     “Consolidated Interest Expense” means interest expense of the Borrower and its
consolidated Subsidiaries, computed on a consolidated basis and in accordance with GAAP.



7









 





     “Consolidated Net Income” means, for any period, for the Borrower and its consolidated
Subsidiaries computed on a consolidated basis in accordance with GAAP, the net income of the
Borrower and its Subsidiaries.



     “Consolidated Net Tangible Assets” means the net book value of all assets of the
Borrower and its consolidated Subsidiaries, excluding any amounts carried as assets for shares of
capital stock or other Equity Interests held in treasury, debt discount and expense, goodwill,
patents, trademarks and other intangible assets, less all liabilities of the Borrower and its
consolidated Subsidiaries (except Funded Debt, minority interests in consolidated Subsidiaries,
deferred taxes and general contingency reserves of the Borrower and its consolidated Subsidiaries),
which in each case would be included on a consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as of the date of determination, all as determined on a consolidated
basis in accordance with GAAP.



     “Consolidated Tangible Assets” means the net book value of all assets of the Borrower
and its consolidated Subsidiaries, excluding any amounts carried as assets for shares of capital
stock or other Equity Interests held in treasury, debt discount and expense, goodwill, patents,
trademarks and other intangible assets, which would be included on a consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as of the date of determination, all as determined
on a consolidated basis in accordance with GAAP.



     “Consolidated Tangible Net Worth” means the total shareholders’ equity of the Borrower
and its consolidated Subsidiaries, calculated in accordance with GAAP and reflected on the most
recent balance sheet of the Borrower, minus Intangible Assets.



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



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



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



     “Daily Floating LIBOR Rate” means, for any day, a fluctuating rate per annum equal to
BBA LIBOR, as published by Reuters (or other commercially available source providing quotations of
BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, on such day for Dollar deposits with a term equivalent to one (1) month. If such rate
is not available at such time for any reason, then the Daily Floating LIBOR Rate shall be the rate
per annum determined by the Administrative Agent to be the rate at which deposits in dollars in
same day funds in the approximate amount of the Swing Line Loan being made by the Swing Line Lender
and with a term equivalent to one (1) month would be offered by the Swing Line Lender’s London
Branch to major banks in the London interbank eurodollar market at their request at approximately
11:00 a.m. (London time) on such



8









 







day. Notwithstanding the foregoing, the Daily Floating LIBOR Rate on any day that is not a
Business Day shall be the Daily Floating LIBOR Rate determined on the immediately preceding
Business Day. Each change in the Daily Floating LIBOR Rate shall be effective, without notice to
the Borrower or any other Person, upon the effective date of such change.



     “Debt Rating” has the meaning specified in the definition of “Applicable Rate.”



     “Debt to Capitalization Ratio” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated Funded Debt as
of such date to (b) Total Capitalization as of such date.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



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



     “Defaulting Lender” means any Lender that, as reasonably determined by the
Administrative Agent, (a) has failed to perform its obligation to fund any portion of its Loans
(or participations in respect of Letters of Credit or Swing Line Loans) within three Business Days
of the date required to be funded by it hereunder, unless such obligation is the subject of a good
faith dispute, (b) has notified the Borrower, the Administrative Agent or any Lender in writing
that it does not intend to comply with any of its funding obligations under this Agreement or has
made a public statement that it does not intend to comply with its funding obligations under this
Agreement (c) otherwise has failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within three Business Days of the date when due,
unless the subject of a good faith dispute, or (d) has, or has a direct or indirect parent company
that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or a custodian appointed for it, or
(iii) taken any action in furtherance of, or indicating its consent to, approval of or acquiescence
in any such proceeding or appointment; provided that a Lender shall not be a



9









 







Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in
such Lender or any direct or indirect parent company thereof by a Governmental Authority. A Lender
that has become a Defaulting Lender because of an event referenced in this definition may cure such
status and shall no longer constitute a Defaulting Lender as provided in the last paragraph of
Section 2.16.



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



     “Dividends,” in respect of any Person, means cash dividends or any other distributions
of property, or otherwise, on, or in respect of, any class of Equity Interests of such Person
(other than dividends or other distributions payable solely in common stock or other common Equity
Interests of such Person or options, warrants or other rights to purchase common stock or other
common Equity Interests of such Person).



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



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



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



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



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



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



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



10









 





     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, or any of its Subsidiaries directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.



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



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



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.



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



     “Eurocurrency Rate” means,




     (a) For any Interest Period with respect to a Eurocurrency Rate Loan, the rate per
annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as



11









 







published by Reuters (or other commercially available source providing quotations of
BBA LIBOR as designated by the Administrative Agent from time to time) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest
Period, for deposits in the relevant currency (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the “Eurocurrency Rate” for such Interest Period
shall be the rate per annum determined by the Administrative Agent to be the rate at which
deposits in the relevant currency for delivery on the first day of such Interest Period in
Same Day Funds in the approximate amount of the Eurocurrency Rate Loan being made, continued
or converted by Bank of America and with a term equivalent to such Interest Period would be
offered by Bank of America’s London Branch (or other Bank of America branch or Affiliate) to
major banks in the London or other offshore interbank market for such currency at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.




     (b) For any day with respect to an interest rate calculation for a Base Rate Loan, the
rate per annum equal to (i) BBA LIBOR at approximately 11:00 a.m. London time two Business
Days prior to such day for Dollar deposits (for delivery on such day) with a term equivalent
to one month or (ii) if such published rate is not available at such time for any reason,
the rate determined by the Administrative Agent to be the rate at which deposits in Dollars
for delivery on such day in same day funds in the approximate amount of the Base Rate Loan
being made, continued or converted by Bank of America and with a term equivalent to one
month would be offered by Bank of America’s London Branch to major banks in the London
interbank eurodollar market at approximately 11:00 a.m. (London time) two Business Days
prior to such day.



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



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



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding
tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to
comply with clause (A) of Section 3.01(e)(ii), and (d) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section 10.13), any
United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign
Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or



12









 







inability (other than as a result of a Change in Law) to comply with clause (B) of
Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 3.01(a)(ii) or (iii).



     “Existing Credit Agreement” has the meaning set forth in the Background provision of
this Agreement.



     “Existing Letters of Credit” means those Letters of Credit set forth on
Schedule 1.01.



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



     “Fee Letter” means the letter agreement, dated as of October 27, 2009, among the
Borrower, the Administrative Agent and Banc of America Securities, LLC.



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



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



     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to an L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations
other than L/C Obligations as to which (i) such Defaulting Lender’s participation obligation has
been reallocated pursuant to Section 2.16(d), or (ii) Cash Collateral or other credit
support acceptable to such L/C Issuer shall have been provided in accordance with
Section 2.03, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s
Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which (i) such
Defaulting Lender’s participation obligation has been reallocated pursuant to
Section 2.16(d), or (ii) Cash Collateral or other credit support acceptable to the Swing
Line Lender shall have been provided in accordance with Section 2.04.



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.



13









 





     “Funded Debt” of any Person means, as of the date of determination and without
duplication (a) all Indebtedness of such Person for borrowed money or which has been incurred in
connection with the acquisition of plant, property and equipment, (b) all Capitalized Rentals of
such Person, and (c) all Guaranties by such Person of Funded Debt of others; provided,
however, at such time, if any, that Receivables Facility Attributed Indebtedness of such
Person is classified as Indebtedness for borrowed money to be disclosed on a financial statement of
such Person pursuant to GAAP, such amount of Receivables Facility Attributed Indebtedness shall,
without duplication, be included as Funded Debt of such Person.



     “GAAP” means accounting principles generally accepted in the United States
consistently applied.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



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



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



14









 





     “Highest Lawful Rate” means at the particular time in question the maximum rate of
interest which, under Applicable Law, any Lender is then permitted to charge on the Obligations.
If the maximum rate of interest which, under Applicable Law, any Lender is permitted to charge on
the Obligations shall change after the date hereof, the Highest Lawful Rate shall be automatically
increased or decreased, as the case may be, from time to time as of the effective time of each
change in the Highest Lawful Rate without notice to the Borrower. For purposes of determining the
Highest Lawful Rate under Applicable Law, on each day, if any, that Chapter 303 of the Texas
Finance Code, as amended, establishes the Highest Lawful Rate, such rate shall be the weekly
ceiling computed in accordance with Section 303.003 of the Texas Finance Code, as amended, for that
day.



     “Increase Effective Date” has the meaning specified in Section 2.14(d).



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




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




     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;




     (c) net obligations of such Person under any Swap Contract;




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




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (f) Capital Leases and Synthetic Lease Obligations;




     (g) obligations in respect of Redeemable Stock of such Person;




     (h) Receivables Facility Attributed Indebtedness; and




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



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company or similar limited liability entity) in which such Person is a general partner or
a joint venturer and for whose Indebtedness such Person is directly or indirectly liable, unless
such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation



15









 







under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of
such date. The amount of any Capital Lease or Synthetic Lease Obligation as of any date shall be
deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



     “Information” has the meaning specified in Section 10.07.



     “Intangible Assets” means as of the date of any determination thereof the total amount
of all goodwill, patents, trade names, trade marks, copyrights, franchises, experimental expense,
organizational expense, unamortized debt discount and expense, deferred assets (other than prepaid
insurance, prepaid taxes, and supplies, spare parts, and other Tangible Assets which are treated as
deferred assets on the books of the Borrower), the excess of cost of shares acquired over book
value of related assets , and such other assets of the Borrower and its consolidated Subsidiaries
as are properly classified as “Intangible Assets” in accordance with GAAP.



     “Interest Coverage Ratio” means, as of the end of each fiscal quarter, the ratio of
(a) Consolidated EBITDA to (b) Consolidated Interest Expense, in each case for the then-most
recently concluded period of four consecutive fiscal quarters.



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



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




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




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




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



16









 





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



     “Investment Grade Rating” means a Debt Rating of at least (a) BBB- by S&P or (b) Baa3
by Moody’s.



     “IP Rights” has the meaning specified in Section 5.18.



     “IRS” means the United States Internal Revenue Service.



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



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



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of Law.



     “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances
shall be denominated in Dollars.



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



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



     “L/C Issuer” means Bank of America and up to four (4) additional Lenders approved by
the Borrower and Administrative Agent (such approval not to be unreasonably withheld or



17









 







delayed), provided that no Lender may be required to be an L/C Issuer without such Lender’s
consent in such Lender’s sole discretion, in their respective capacities as issuers of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder. An L/C Issuer may, in
its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of an L/C
Issuer, in which case the term “L/C Issuer” shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate.



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



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



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



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



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by any L/C Issuer.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business
Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(h).



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



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Liquidity” means, for the Borrower and its Subsidiaries, as of any date, (a) the sum
of (i) Cash and Cash Equivalents as of such date plus (ii) availability as of such date
under securitization facilities of the Borrower and the Securitizing Subsidiaries existing on the
Closing



18









 







Date, and refinancings (but not increases) thereof, minus (b) the Outstanding Amount
of Loans as of such date.



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



     “Loan Documents” means this Agreement, each Note, each Issuer Document, the Fee
Letter, any agreement creating or perfecting rights in Cash Collateral or other credit support
pursuant to the provisions of Section 2.15, and all other documents executed and delivered
by the Borrower to the Administrative Agent, the L/C Issuer or any Lender in connection herewith.



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



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or
financial condition of the Borrower or the Borrower and its Subsidiaries taken as a whole or as to
any Material Subsidiary; (b) a material impairment of the ability of the Borrower or any Material
Subsidiary to perform under any Loan Document; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against the Borrower of any Loan Document.



     “Material Domestic Subsidiary” means any Material Subsidiary organized under the laws
of the United States, any State of the United States or the District of Columbia.



     “Material Property” means any facility (together with the land on which it is erected
and fixtures comprising a part thereof) used primarily for manufacturing, processing, research,
warehousing or distribution, owned or leased by the Borrower or a Subsidiary of the Borrower and
(a) having a net book value in excess of 3% of Consolidated Net Tangible Assets, other than any
such facility or portion thereof which is a pollution control facility financed by state or local
government obligations or is not of material importance to the total business conducted or assets
owned by the Borrower and its Subsidiaries as an entirety, or (b) acquired with Net Proceeds from a
sale and leaseback transaction and which is irrevocably designated by the Borrower as a Material
Property, which designation shall be made in writing to the Administrative Agent.



     “Material Subsidiary” means any Subsidiary of the Borrower that owns or leases a
Material Property or owns or controls Equity Interests which under ordinary circumstances has the
voting power to elect a majority of the Board of Directors (or similar governing body) of a
Material Subsidiary.



     “Maturity Date” means the earliest of (a) November 24, 2012 or (b) the date of
termination of the Aggregate Commitments pursuant to Section 2.06, and (c) the date of
termination of the commitment of each Lender to make Loans and of the obligation of any L/C Issuer
to make L/C Credit Extensions pursuant to Section 8.02; provided, however,
that in each case, if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.



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



19









 





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



     “Net Proceeds” means the aggregate cash proceeds received by any Person in respect of
a sale or other disposition of property by such Person (including, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received in any such
disposition), net of direct costs relating to such disposition, including, without limitation,
legal accounting and investment banking fees, and sales commissions as a result thereof, taxes paid
or payable as a result thereof, in each case, after taking into account any available tax credits
or deductions or tax sharing arrangements with respect to such disposition, and amounts required to
be applied to the repayment of Indebtedness or other liabilities, secured by a Lien on the property
or properties that were the subject of such disposition, or required to be paid as a result of such
disposition, and any reserve for adjustment in respect of the sale price of such property or
properties established in accordance with GAAP.



     “Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).



     “Notes” means the Revolving Credit Loan Notes and the Swing Line Note, collectively
(and each, a “Note”).



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Borrower arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against the Borrower or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



20









 





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



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



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



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



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permitted Liens” has the meaning specified in Section 7.01.



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



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



     “Platform” has the meaning specified in Section 6.02.



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



21









 





     “Receivables Facility Attributed Indebtedness” means the amount of obligations
outstanding under a receivables purchase facility on any date of determination that would be
characterized as principal if such facility were structured as a secured lending transaction rather
than as a purchase transaction.



     “Redeemable Stock” means any Equity Interests of the Borrower or any of its
Subsidiaries which prior to December 30, 2012 is or may be (a) mandatorily redeemable,
(b) redeemable at the option of the holder thereof or (c) convertible into Indebtedness.



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



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



     “Rentals” means and includes as of the date of any determination thereof all fixed
payments (including as such all payments which the lessee is obligated to make to the lessor on
termination of the lease or surrender of the property) payable by the Borrower or a Material
Subsidiary, as lessee or sublessee under a lease of real or personal property, but shall be
exclusive of any amounts required to be paid by the Borrower or a Material Subsidiary (whether or
not designated as rents or additional rents) on account of maintenance, repairs, insurance, taxes
and similar charges. Fixed rents under any so-called “percentage leases” shall be computed
solely on the basis of the minimum rents, if any, required to be paid by the lessee regardless of
sales volume or gross revenues.



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolving Credit Loans, a Revolving Credit Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a
Swing Line Loan Notice.



     “Required Lenders” means, as of any date of determination, at least two Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and
the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, at least two Lenders holding in the aggregate more than 50% of the Total
Outstandings (with the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for
purposes of this definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, chief operating officer,
president, chief financial officer, treasurer, controller, secretary or assistant secretary of the
Borrower and, solely for purposes of notices given pursuant to Article II, any other
officer of the Borrower so designated by any of the foregoing officers in a notice to the
Administrative Agent]. Any document delivered hereunder that is signed by a Responsible Officer of
the Borrower shall



22









 







be conclusively presumed to have been authorized by all necessary corporate, partnership
and/or other action on the part of the Borrower and such Responsible Officer shall be conclusively
presumed to have acted on behalf of the Borrower.



     “Revaluation Date” means (a) with respect to any Loan, each of the following:
(i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency,
(ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency
pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall
reasonably determine or the Required Lenders shall reasonably require; and (b) with respect to any
Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit
having the effect of increasing the amount thereof (solely with respect to the increased amount),
(iii) each date of any payment by any L/C Issuer under any Letter of Credit denominated in an
Alternative Currency, and (iv) such additional dates as the Administrative Agent or any L/C Issuer
shall reasonably determine or the Required Lenders shall reasonably require. 



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

Section 2.01(a).



     “Revolving Credit Loan” has the meaning specified in Section 2.01(a).



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



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



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



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



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



     “Securitizing Subsidiaries” means, collectively, CMC Steel Fabricators, Inc., d/b/a
SMI Joist Co. (Hope, AR), Howell Metals Company, Owen Electric Steel Company of South Carolina, SMI
Steel, Inc., and Structural Metals, Inc.



23









 





     “Solvent” means, with respect to any Person, as of any date of determination, that the
fair value of the assets of such Person (at fair valuation) is, on the date of determination,
greater than the total amount of liabilities (including contingent and unliquidated liabilities) of
such Person as of such date, that the present fair saleable value of the assets of such Person
will, as of such date, be greater than the amount that will be required to pay the probable
liability of such Person on its debts as such debts become absolute and matured, and that, as of
such date, such Person will be able to pay all liabilities of such Person as such liabilities
mature and such Person does not have unreasonably small capital with which to carry on its
business. In computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or
matured liability discounted to present value at rates believed to be reasonable by such Person.



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



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



     “Sterling” and “£” mean the lawful currency of the United Kingdom.



     “Stock Redemptions”, in respect of any Person, means any and all funds, cash or other
payments made in respect of the redemption, repurchase or acquisition of such Capital Stock
(specifically including, without limitation, a treasury stock purchase), unless such Capital Stock
shall be redeemed or acquired through the exchange of such Capital Stock with Capital Stock of the
same class or options or warrants to purchase such Capital Stock.



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



24









 





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



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



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



     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



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



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



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $25,000,000 and
(b) the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such



25









 







Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as
the indebtedness of such Person (without regard to accounting treatment).



     “Tangible Assets” means as of the date of any determination thereof the total amount
of all assets of the Borrower and its consolidated Subsidiaries (less depreciation, depletion and
other properly deductible valuation reserves) after deducting Intangible Assets.



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



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



     “Total Capitalization” means, as of any date of determination, for the Borrower and
its Subsidiaries on a consolidated basis, the sum of (a) Consolidated Tangible Net Worth as of such
date and (b) Consolidated Funded Debt as of such date.



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



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



     “UCC” means the Uniform Commercial Code of Texas or, where applicable to specific
collateral, any other relevant state.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to
Section 412 of the Code for the applicable plan year.



     “United States” and “U.S.” mean the United States of America.



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



     “Voting Shares” of any Person means any class or classes of Equity Interests having
ordinary voting power for the election of directors or other governing body of such Person, other
than Equity Interests having such power only by reason of the happening of a contingency.



     “Yen” and “¥” mean the lawful currency of Japan.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



26









 





     (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time, and (vi) the words
“asset” and “property” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.



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



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



     1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation



27









 







between calculations of such ratio or requirement made before and after giving effect to such
change in GAAP.



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



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



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



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



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



28









 





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



     (c) Any failure by a Lender or any L/C Issuer, as the case may be, to respond to such request
within the time period specified in the preceding sentence shall be deemed to be a refusal by such
Lender or such L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or
Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
Lenders consent to making Eurocurrency Rate Loans in such requested currency, the Administrative
Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to
be an Alternative Currency hereunder for purposes of any Revolving Credit Borrowings of
Eurocurrency Rate Loans; and if the Administrative Agent and the relevant L/C Issuer consent to the
issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify
the Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent
shall fail to obtain consent to any request for an additional currency under this
Section 1.06, the Administrative Agent shall promptly so notify the Borrower.



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



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



     (c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to



29









 







reflect a change in currency of any other country and any relevant market conventions or
practices relating to the change in currency.



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



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



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Revolving Credit Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a “Revolving Credit Loan”) to the
Borrower in Dollars or in one or more Alternative Currencies from time to time, on any Business Day
during the Availability Period, in an aggregate amount not to exceed at any time outstanding the
amount of such Lender’s Commitment; provided, however, that after giving effect to
any Revolving Credit Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Commitment. Within the limits of each Lender’s Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under this
Section 2.01, prepay under Section 2.05, and reborrow under this
Section 2.01. Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate Loans, as
further provided herein.



     2.02 Borrowings, Conversions and Continuations of Revolving Credit Loans.



     (a) Each Revolving Credit Borrowing, each conversion of Revolving Credit Loans from one Type
to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars
to Base Rate Loans, (ii) four Business Days (or five Business Days in the case of a Special Notice
Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency
Rate Loans denominated in Alternative Currencies, and (iii) on the requested date of any Borrowing
of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this
Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a
written Revolving Credit Loan Notice,



30









 







appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing
of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in
Sections 2.03(c) and 2.04(c), each Revolving Credit Borrowing of or conversion to
Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. Each Revolving Credit Loan Notice (whether telephonic or written) shall specify
(i) whether the Borrower is requesting a Revolving Credit Borrowing, a conversion of Revolving
Credit Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Revolving Credit Loans to be borrowed, converted or
continued, (iv) the Type of Revolving Credit Loans to be borrowed or to which existing Revolving
Credit Loans are to be converted, (v) if applicable, the duration of the Interest Period with
respect thereto, and (vi) the currency of the Revolving Credit Loans to be borrowed. If the
Borrower fails to specify a currency in a Revolving Credit Loan Notice requesting a Borrowing, then
the Revolving Credit Loans so requested shall be made in Dollars. If the Borrower fails to specify
a Type of Revolving Credit Loan in a Revolving Credit Loan Notice or if the Borrower fails to give
a timely notice requesting a conversion or continuation, then the applicable Revolving Credit Loans
shall be made as, or converted to, Base Rate Loans; provided, however, that in the
case of a failure to timely request a continuation of Revolving Credit Loans denominated in an
Alternative Currency, such Loans shall be continued as Eurocurrency Rate Loans in their original
currency with an Interest Period of one month. Any automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurocurrency Rate Loans in any such Revolving Credit Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
No Revolving Credit Loan may be converted into or continued as a Revolving Credit Loan denominated
in a different currency, but instead must be prepaid in the original currency of such Revolving
Credit Loan and reborrowed in the other currency.



     (b) Following receipt of a Revolving Credit Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount (and currency) of its Applicable Percentage of the
applicable Revolving Credit Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans or continuation of Revolving Credit Loans denominated in a
currency other than Dollars, in each case as described in the preceding subsection. In the case of
a Revolving Credit Borrowing, each Lender shall make the amount of its Revolving Credit Loan
available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office for
the applicable currency not later than 1:00 p.m., in the case of any Revolving Credit Loan
denominated in Dollars, and not later than the Applicable Time specified by the Administrative
Agent in the case of any Revolving Credit Loan in an Alternative Currency, in each case on the
Business Day specified in the applicable Revolving Credit Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Revolving Credit Borrowing is
the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds
so received available to the Borrower in like funds as received by the Administrative Agent either
by (i) crediting the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative



31









 







Agent by the Borrower; provided, however, that if, on the date the Revolving
Credit Loan Notice with respect to such Borrowing denominated in Dollars is given by the Borrower,
there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be
applied to the payment in full of any such L/C Borrowings, and, second, shall be made
available to the Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the
existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency
Rate Loans (whether in Dollars or any Alternative Currency) without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of the then outstanding Eurocurrency
Rate Loans denominated in an Alternative Currency be prepaid, or redenominated into Dollars in the
amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with
respect thereto.



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



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



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees,
in reliance upon the agreements of the other Lenders set forth in this Section 2.03,
(1) from time to time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in
one or more Alternative Currencies for the account of the Borrower or certain of its
Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit;
and (B) the Lenders severally agree to participate in Letters of Credit issued for the
account of the Borrower or certain of its Subsidiaries and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments,
(y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding
Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request
by the Borrower



32









 







for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested complies with the
conditions set forth in the provisos to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain
Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to
have been issued pursuant hereto, and from and after the Closing Date shall be subject to
and governed by the terms and conditions hereof.




     (ii) No L/C Issuer shall issue any Letter of Credit, if:




     (A) subject to Section 2.03(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Required Lenders have approved such expiry date; or




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




     (iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:




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




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




     (C) except as otherwise agreed by the Administrative Agent and such L/C Issuer,
such Letter of Credit is in an initial stated amount less than $10,000;




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




     (E) such L/C Issuer does not as of the issuance date of such requested Letter
of Credit issue Letters of Credit in the requested currency; or



33









 






     (F) any Lender is at such time a Defaulting Lender, unless such L/C Issuer has
entered into arrangements satisfactory to such L/C Issuer (in its sole discretion)
with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential
Fronting Expense with respect to such Lender as to either the Letter of Credit then
proposed to be issued or such Letter of Credit and all other L/C Obligations as to
which such L/C Issuer has actual or potential risk, as it may elect in its sole
discretion.




     (iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




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




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



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




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



34









 







the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment;
and (D) such other matters as the relevant L/C Issuer may require. Additionally, the
Borrower shall furnish to the relevant L/C Issuer and the Administrative Agent such other
documents and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent
may require.




     (ii) Promptly after receipt of any Letter of Credit Application, the relevant L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
Borrower and, if not, the relevant L/C Issuer will provide the Administrative Agent with a
copy thereof. Unless the relevant L/C Issuer has received written notice from any Lender,
the Administrative Agent or the Borrower, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied, then,
subject to the terms and conditions hereof, the relevant L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Borrower (or the applicable
Subsidiary) or enter into the applicable amendment, as the case may be, in each case in
accordance with such L/C Issuer’s usual and customary business practices. Immediately upon
the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from such L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of such Lender’s
Applicable Percentage times the amount of such Letter of Credit.




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



35









 







then satisfied, and in each such case directing the relevant L/C Issuer not to permit
such extension.




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




     (v) No later than 5 days prior to the last day of each calendar quarter, each L/C
Issuer shall provide to the Administrative Agent and the Borrower separate schedules or
invoices for standby Letters of Credit and commercial Letters of Credit issued by it, in
form and substance reasonably satisfactory to the Administrative Agent, setting forth the
aggregate L/C Obligations outstanding at the time of delivery of such schedules or invoices
with respect to Letters of Credit issued by such L/C Issuer, and any information requested
by the Borrower or the Administrative Agent relating thereto.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the relevant L/C Issuer shall notify the Borrower and
the Administrative Agent thereof. In the case of a Letter of Credit denominated in an
Alternative Currency, the Borrower shall reimburse the relevant L/C Issuer in such
Alternative Currency, unless (A) such L/C Issuer (at its option) shall have specified in
such notice that it will require reimbursement in Dollars, or (B) in the absence of any such
requirement for reimbursement in Dollars, the Borrower shall have notified such L/C Issuer
promptly following receipt of the notice of drawing that the Borrower will reimburse such
L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under
a Letter of Credit denominated in an Alternative Currency, the relevant L/C Issuer shall
notify the Borrower of the Dollar Equivalent of the amount of the drawing promptly following
the determination thereof. Not later than 11:00 a.m. on the date of any payment by any L/C
Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the
date of any payment by any L/C Issuer under a Letter of Credit to be reimbursed in an
Alternative Currency (each such date, an “Honor Date”), the Borrower shall reimburse
such L/C Issuer through the Administrative Agent in an amount equal to the amount of such
drawing and in the applicable currency. If the Borrower fails to so reimburse such L/C
Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the
Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative
Currency) (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable
Percentage thereof. In such event, the Borrower shall be deemed to have requested a
Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount
of the unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Revolving Credit Loan Notice). Any
notice given by any L/C Issuer or the Administrative Agent pursuant to this


Section 2.03(c)(i)



36









 





     may be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.




     (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (including for this purpose the application of available Cash Collateral and
other credit support provided pursuant to Section 2.03(a)(iii)(F)) to the
Administrative Agent for the account of such L/C Issuer, in Dollars, at the Administrative
Agent’s Office for Dollar-denominated payments in an amount equal to its Applicable
Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to the relevant L/C Issuer in Dollars.




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




     (iv) Until each Lender funds its Revolving Credit Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the relevant L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount
shall be solely for the account of such L/C Issuer. If any Lender fails to fund its
Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c), any principal
payment in respect of such Lender’s Applicable Percentage of such amount shall be solely for
the account of such L/C Issuer.




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



37









 







amount of any payment made by such L/C Issuer under any Letter of Credit, together with
interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the relevant L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in
Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such payment is
immediately available to such L/C Issuer at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, plus any administrative, processing or similar
fees customarily charged by such L/C Issuer in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Revolving Credit Loan included in the relevant Revolving Credit
Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A
certificate of any L/C Issuer submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest
error.



     (d) Repayment of Participations.




     (i) At any time after any L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of any L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in Dollars and in the same funds as those received by the
Administrative Agent.




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



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



38









 






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




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




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




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




     (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant currency
markets generally; or




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



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



     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuers, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful



39









 







misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against
the beneficiary or transferee at Law or under any other agreement. None of the L/C Issuers, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of an L/C Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against an
L/C Issuer, and an L/C Issuer may be liable to the Borrower, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C
Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of
a Letter of Credit. In furtherance and not in limitation of the foregoing, any L/C Issuer may
accept documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall
not be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.



     (g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the relevant
L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce at the time of issuance shall
apply to each commercial Letter of Credit.



     (h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, in Dollars, a Letter of Credit
fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the Dollar Equivalent of the daily amount available to be drawn under such Letter of
Credit; provided, however, any Letter of Credit Fees otherwise payable for the
account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting
Lender has not provided Cash Collateral or other credit support arrangements satisfactory to an L/C
Issuer pursuant to this Section 2.03 shall be payable, to the maximum extent permitted by
Applicable Law, to the other Lenders in accordance with the upward adjustments in their respective
Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.16(d), with
the balance of such fee, if any, payable to the appropriate L/C Issuer for its own account. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.09. Letter of
Credit Fees shall be (i) due and payable on the first Business Day after the end of each March,
June, September and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii)
computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each Letter of Credit shall be



40









 







computed and multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained
herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of
Credit Fees shall accrue at the Default Rate.



     (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. The
Borrower shall pay directly to the relevant L/C Issuer for its own account, in Dollars, a fronting
fee (i) with respect to each commercial Letter of Credit, equal to the greater of (A) $250.00 or
(B) 1/8 of 1% per annum times the Dollar Equivalent of the amount of such Letter of Credit,
and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of
Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the
Borrower and the relevant L/C Issuer, computed on the Dollar Equivalent of the amount of such
increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each
standby Letter of Credit, at the greater of (A) $250.00 or (B) 1/8 of 1% per annum times
the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit on a
quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day
after the end of each March, June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment), commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.09. In addition, the Borrower shall pay directly to the relevant L/C Issuer
for its own account, in Dollars, the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of
credit as from time to time in effect. Such customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.



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



     (k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder
for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the
issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such
Subsidiaries.



     2.04 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04, may in its sole discretion make loans in Dollars (each such loan, a
“Swing Line Loan”) to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the
Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the
Applicable Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of
the



41









 







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



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 12:00 noon on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $1,000,000 or a whole multiple of $100,000 in excess thereof,
and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice
must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by two Responsible Officers of
the Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan
Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Lender) prior to 1:00 p.m. on the
date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such
Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence
of Section 2.04(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 2:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower at its office by
crediting the account of the Borrower on the books of the Swing Line Lender in Same Day Funds.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Loan in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Revolving
Credit Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples



42









 







specified therein for the principal amount of Base Rate Loans, but subject to the
unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02. The Swing Line Lender shall furnish the Borrower with a copy of the
applicable Revolving Credit Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage
of the amount specified in such Revolving Credit Loan Notice available (including for this
purpose Cash Collateral and other credit support made available with respect to the
applicable Swing Line Loan) to the Administrative Agent in Same Day Funds for the account of
the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments
not later than 1:00 p.m. on the day specified in such Revolving Credit Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.




     (iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in
Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, plus any administrative, processing
or similar fees customarily charged by the Swing Line Lender in connection with the
foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant
Revolving Credit Borrowing or funded participation in the relevant Swing Line Loan, as the
case may be. A certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.




     (iv) Each Lender’s obligation to make Revolving Credit Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Credit Loans pursuant to this



43









 





     Section 2.04(c) is subject to the conditions set forth in Section 4.02.
No such funding of risk participations shall relieve or otherwise impair the obligation of
the Borrower to repay Swing Line Loans, together with interest as provided herein.




     (v) In the event that the Swing Line Lender, in the exercise of its discretion,
requires that, as a condition to the making of any Swing Line Loan, a Defaulting Lender, or
the Borrower, enter into arrangements satisfactory to the Swing Line Lender for the
provision of sufficient Cash Collateral, or other credit support acceptable to the Swing
Line Lender, to eliminate the Swing Line Lender’s actual or potential Fronting Exposure with
respect to any such Lender, then the provisions of Section 2.15 shall apply.



     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof
in the same funds as those received by the Swing Line Lender.




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



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



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



     2.05 Prepayments.



     (a) Each Borrower may, upon notice from the Borrower to the Administrative Agent, at any time
or from time to time voluntarily prepay Revolving Credit Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate
Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Loans
denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate
Loans denominated in Alternative Currencies, and (C) one Business Day prior to the date of
prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate



44









 







Loans denominated in Dollars shall be in a principal amount of $5,000,000 or a whole multiple
of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Loans denominated in
Alternative Currencies shall be in a minimum principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Revolving Credit Loans to be prepaid and, if
Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency
Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05. Subject to Section 2.16,
each such prepayment shall be applied to the Revolving Credit Loans of the Lenders in accordance
with their respective Applicable Percentages.



     (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 12: noon on the date of the prepayment, and
(ii) any such prepayment shall be in a minimum principal amount of $100,000 or a whole multiple of
$50,000 in excess thereof. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein.



     (c) If the Administrative Agent notifies the Borrower at any time that the Total Outstandings
at such time exceed the Aggregate Commitments then in effect, then, within two Business Days after
receipt of such notice, the Borrower shall prepay Loans and/or the Borrower shall Cash
Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding
Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then
in effect; provided, however, that the Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the
prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in
effect. The Administrative Agent may, at any time and from time to time after the initial deposit
of such Cash Collateral (but only to the extent that, at such time, the Total Outstandings exceed
the Aggregate Commitments), request that additional Cash Collateral be provided in order to protect
against the results of further exchange rate fluctuations.



     2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce
the Aggregate Commitments if, after giving effect thereto and to any



45









 







concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate
Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Commitments, the
Letter of Credit Sublimit, or the Swing Line Sublimit exceeds the amount of the Aggregate
Commitments, such Sublimit shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. The amount of any such Aggregate Commitment reduction
shall not be applied to the Letter of Credit Sublimit unless otherwise specified by the Borrower.
Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Applicable Percentage. All fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date of such termination.



     2.07 Repayment of Loans. The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Revolving Credit Loans made to the Borrower outstanding on such date.
The Borrower shall repay each Swing Line Loan on the earlier to occur of (a) the date ten Business
Days after such Loan is made and (b) the Maturity Date.



     2.08 Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the lesser of (x) the Highest Lawful Rate and (y) the Eurocurrency Rate for such
Interest Period plus the Applicable Rate plus (in the case of a Eurocurrency Rate
Loan of any Lender which is lent from a Lending Office in the United Kingdom or a Participating
Member State) the Mandatory Cost; (ii) each Base Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the lesser
of (x) the Highest Lawful Rate and (y) the Base Rate plus the Applicable Rate; and
(iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the lesser of (x) the Highest Lawful Rate
and (y) the Daily Floating LIBOR Rate plus the Applicable Rate.




     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by Applicable Law.




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




     (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding



46









 







Obligations hereunder at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by Applicable Law.




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



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



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



     (a) Facility Fee. The Borrower shall pay to the Administrative Agent for the account
of each Lender in accordance with its Applicable Percentage, a facility fee in Dollars equal to the
Applicable Rate for the facility fee times the actual daily amount of the Aggregate
Commitments (or, if the Aggregate Commitments have terminated, on the Outstanding Amount of all
Revolving Credit Loans, Swing Line Loans and L/C Obligations), regardless of usage, subject to
adjustment as provided in Section 2.16. The facility fee shall accrue at all times during
the Availability Period (and thereafter so long as any Revolving Credit Loans, Swing Line Loans or
L/C Obligations remain outstanding), including at any time during which one or more of the
conditions in Article IV is not met, and shall be due and payable quarterly in arrears on
the last Business Day of each March, June, September and December, commencing with the first such
date to occur after the Closing Date, and on the last day of the Availability Period (and, if
applicable, thereafter on demand). The facility fee shall be calculated quarterly in arrears, and
if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be
computed and multiplied by the Applicable Rate separately for each period during such quarter that
such Applicable Rate was in effect.




     (b) Other Fees.




     (i) The Borrower shall pay to Banc of America Securities LLC and the Administrative
Agent for their own respective accounts, in Dollars, fees in the amounts and at the times
specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.




     (ii) The Borrower shall pay to the Arrangers other than Banc of America Securities LLC,
in Dollars, such fees as shall have been separately agreed upon in writing in the amounts
and at the times so specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.




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



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     2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. Subject to Section 10.09,
all other computations of fees and interest shall be made on the basis of a 360-day year and actual
days elapsed (which results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year), or, in the case of interest in respect of Revolving Credit Loans
denominated in Alternative Currencies as to which market practice differs from the foregoing, in
accordance with such market practice. Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan
or such portion is paid, provided that any Loan that is repaid on the same day on which it
is made shall, subject to Section 2.12(a), bear interest for one day. Each determination
by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding
for all purposes, absent manifest error.



     2.11 Evidence of Debt. (a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent and
each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made
by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender to the
Borrower made through the Administrative Agent, the Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a Revolving Loan Note and/or Swing Line Note), as
applicable, which shall evidence such Lender’s Loans to the Borrower in addition to such accounts
or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if
applicable), amount, currency and maturity of its Loans and payments with respect thereto.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.



     2.12 Payments Generally. (a) General. All payments to be made by the Borrower shall
be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except
as otherwise expressly provided herein and except with respect to principal of and interest on
Loans denominated in an Alternative Currency, all payments by the Borrower hereunder shall be made
to the Administrative Agent, for the account of the respective Lenders to which such payment is
owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later
than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all
payments by the Borrower hereunder with respect to principal and



48









 







interest on Loans denominated in an Alternative Currency shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in such Alternative Currency and in Same Day Funds not later than the
Applicable Time specified by the Administrative Agent on the dates specified herein. Without
limiting the generality of the foregoing, the Administrative Agent may require that any payments
due under this Agreement be made in the United States. If, for any reason, the Borrower is
prohibited by any Law from making any required payment hereunder in an Alternative Currency, the
Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency
payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the Applicable Time
specified by the Administrative Agent in the case of payments in an Alternative Currency, shall in
each case be deemed received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day, and such extension
of time shall be reflected in computing interest or fees, as the case may be.




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



49









 







against a Lender that shall have failed to make such payment to the Administrative Agent.




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



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



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



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



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



     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Revolving Credit Loans made by it, or the participations in L/C Obligations or in Swing Line
Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate
amount of such Revolving Credit Loans or participations and accrued interest thereon



50









 







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




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




     (ii) the provisions of this Section shall not be construed to apply to (w) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
(including the application of funds arising from the existence of a Defaulting Lender),
(x) the application of Cash Collateral or other credit support (or proceeds thereof) in
respect of obligations relating to Letters of Credit and Swing Line Loans (including related
Lender participation obligations) provided for in Section 2.15, or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Revolving Credit Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than an assignment to the Borrower or any
Affiliate thereof (as to which the provisions of this Section shall apply).



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



     2.14 Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to time,
request an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding
$100,000,000; provided that any such request for an increase shall be in a minimum amount
of $10,000,000. At the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of delivery of such
notice to the Lenders).



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



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



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



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate dated as of the
Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of
the Borrower (i) certifying and attaching the resolutions adopted by the Borrower approving or
consenting to such increase, and (ii) certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Article V and the other Loan
Documents are true and correct in all material respects (except that any representation or warranty
that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all
respects) on and as of the Increase Effective Date, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they are true and correct in
all material respects (except that any representation or warranty that is qualified as to
“materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such
earlier date, and except that for purposes of this Section 2.14, the representations and
warranties contained in subsection (a) of Section 5.06 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01,
except that to the extent such representations and warranties refer to statements furnished
pursuant to clause (b) of Section 6.01, the representations and warranties in
subclauses (i) and (ii) of clause (a) of Section 5.06 shall be qualified by reference to
the absence of footnotes and shall be subject to year-end adjustments, and (B) no Default exists.
The Borrower shall prepay any Revolving Credit Loans outstanding on the Increase Effective Date
(and pay any additional amounts required pursuant to Section 3.05) to the extent necessary
to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Percentages
arising from any nonratable increase in the Commitments under this Section.



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



     2.15 Cash Collateral and Other Credit Support.



     (a) Certain Credit Support Events; Grant of Security Interest. Upon the request of
the Administrative Agent, (i) if any L/C Issuer has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the
Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the



52









 







Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of
all L/C Obligations. In addition, (x) Sections 2.05(c) and 8.02(c) set forth
certain additional requirements to deliver Cash Collateral hereunder,
(y) Section 2.03(a)(iii)(F) contemplates the delivery of Cash Collateral or other credit
support in certain circumstances to support the issuance of Letters of Credit, and (z)
Section 2.04 contemplates the delivery of Cash Collateral or other credit support in
connection with the issuance of Swing Line Loans. The Borrower, and to the extent provided by any
Lender, such Lender, hereby grants to the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuers and the Lenders (including the Swing Line Lender), a security
interest in all such cash, deposit accounts and all balances therein, and all other property
provided as collateral pursuant to Section 2.03, Section 2.04,
Section 2.05(c) and Section 8.02(c), and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America. For the avoidance of doubt, to the extent that any other Person may have a claim, by
virtue of an intercreditor arrangement, tag-along right or any other term in any other document or
instrument, to share in any Cash Collateral or other credit support provided pursuant to any of the
aforementioned sections of this Agreement, the L/C Issuers, Swing Line Lender or Administrative
Agent, as applicable, may take such provisions into account in determining whether Cash Collateral
or other credit support is satisfactory.



     (b) Application. Notwithstanding anything to the contrary contained in this Agreement,
(i) Cash Collateral or other credit support (and proceeds thereof) provided by any Defaulting
Lender pursuant to Sections 2.03 or 2.04 to support the obligations of such Lender
in respect of Letters of Credit or Swing Line Loans shall be held and applied, first, to
fund the L/C Advances of such Lender, such Lender’s funding of participations in Swing Line Loans,
or such Lender’s Applicable Percentage of Base Rate Loans used to repay L/C Borrowings, L/C
Advances or Swing Line Loans with respect to which such collateral or other credit support was
provided, as applicable, and, second, to fund any interest accrued for the benefit of the
L/C Issuers or Swing Line Lender pursuant to Sections 2.03(c)(vi) and 2.04(c)(iii)
allocable to such Lender, and (ii) Cash Collateral and other credit support (and proceeds thereof)
otherwise provided by or on behalf of the Borrower under Sections 2.03, 2.04,
2.05(c) or 8.02(c) to support L/C Obligations or Swing Line Loans shall be held and
applied, first, to the satisfaction of the specific L/C Obligations, Swing Line Loans or
obligations to fund participations therein of the applicable Defaulting Lender for which the Cash
Collateral or other credit support was so provided and, second, if remedies under
Section 8.02 shall have been exercised, to the application of such collateral or other
credit support (or proceeds thereof) to any other Obligations in accordance with
Section 8.03.



     (c) Release. Cash Collateral and other credit support provided under
Section 2.03 or 2.04 in connection with any Lender’s status as a Defaulting Lender
shall be released (except as the L/C Issuers, Swing Line Lender and the Person providing such Cash
Collateral or other credit support may agree otherwise (as applicable)) promptly following the
earlier to occur of (A) the termination of such Lender’s status as a Defaulting Lender or
(B) following the L/C Issuers’ or Swing Line Lender’s (as applicable) good faith determination that
there remain outstanding no L/C Obligations or Swing Line Loans, as applicable, as to which it has
actual or potential Fronting Exposure in relation to such Lender as to which it desires to maintain
Cash Collateral or other credit support; subject, however, to the additional condition that, as to
any such collateral



53









 







or other credit support provided by or on behalf of the Borrower, no Default or Event of
Default shall then have occurred and be continuing.



     2.16 Defaulting Lenders. Notwithstanding anything to the contrary contained in this Agreement
to the contrary, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is
no longer a Defaulting Lender, to the extent permitted by Applicable Law:



     (a) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove
any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in
Section 10.01.



     (b) Reallocation of Loan Payments. (i) Any payment or prepayment of any portion of
the principal amount of Loans of such Lender (whether voluntary or mandatory, at maturity, pursuant
to Article VIII or otherwise) shall be applied, first, to the Loans of other
Lenders as if such Defaulting Lender had no Loans outstanding, until such time as the Outstanding
Amount of Revolving Credit Loans of each Lender shall equal its pro rata share thereof based on its
Applicable Percentage (without giving effect to Section 2.16(d)) ratably to the Lenders in
accordance with their Applicable Percentages of Loans being repaid or prepaid; second, to
the then outstanding amounts (including interest thereon) owed under the terms hereof by such
Defaulting Lender to the Administrative Agent or (to the extent the Administrative Agent has
received notice thereof) to any other Lender, ratably to the Persons entitled thereto,
third, to the posting of Cash Collateral in respect of its Applicable Percentage (without
giving effect to the last sentence in the definition thereof) of L/C Obligations and Swing Line
Loans, ratably to the L/C Issuers and Swing Line Lender in accordance with their respective
applicable Fronting Exposures, and fourth, to such Defaulting Lender, and (ii) any other amounts
thereafter received by the Administrative Agent for the account of such Defaulting Lender
(including amounts made available to the Administrative Agent by such Defaulting Lender pursuant to
Section 10.08) shall be applied, first, to the liabilities above referred to in
item second of clause (i) above, second, to the matters above referred to
in item third of clause (i) above, and third, to such Defaulting Lender.
Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are
reallocated to pay outstanding amounts owed by a Defaulting Lender or to post Cash Collateral
pursuant to this Section 2.16(b)) shall be deemed paid to such Defaulting Lender, and each
Lender hereby irrevocably consents thereto.



     (c) Certain Fees. Such Defaulting Lender (i) shall not be entitled to receive any
facility fee pursuant to Section 2.09(a) on any amount by which its Commitment exceeds its
Applicable Percentage of the Outstanding Amount of all Revolving Credit Loans, Swing Line Loans and
L/C Obligations for any period during which such Lender is a Defaulting Lender (and the Borrower
shall not be required to pay any such fee that otherwise would have been required to have been paid
to such Defaulting Lender) and (ii) shall be limited in its right to Letter of Credit Fees shall be
limited as provided in Section 2.03(h).



     (d) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any
period in which there is a Defaulting Lender as to which an L/C Issuer or Swing Line Lender (as
applicable) has not received Cash Collateral or other credit support acceptable to it in respect of
the related participation and funding obligations of such Defaulting Lender, then upon the request
of such L/C Issuer or Swing Line Lender (as applicable) to the Administrative Agent, for



54









 







purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire,
refinance or fund participations in Letters of Credit or Swing Line Loans pursuant to Sections
2.03 and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of such Defaulting Lender; provided, that,
in all cases, the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans shall not exceed the positive difference,
if any, between (1) the Commitment of such non-Defaulting Lender and (2) the aggregate Outstanding
Amount of the Revolving Credit Loans of such Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all other L/C Obligations (prior to giving effect to such
reallocation), plus such Lender’s Applicable Percentage of the Outstanding Amount of all
other Swing Line Loans (prior to giving effect to such reallocation).



     A Lender that has become a Defaulting Lender because of an event referenced in the definition
of Defaulting Lender may cure such status and shall no longer constitute a Defaulting Lender as a
result of such event when (i) such Defaulting Lender shall have fully funded or paid, as
applicable, all Loans, participations in respect of Letters of Credit or Swing Line Loans or other
amounts required to be funded or paid by it hereunder as to which it is delinquent (together, in
each case, with such interest thereon as shall be required to any Person as otherwise provided in
this Agreement), (ii) the Administrative Agent shall have received a certification by such
Defaulting Lender of its ability and intent to comply with the provisions of this Agreement going
forward, and (iii) each of (x) the Administrative Agent, (y) the L/C Issuers, the Swing Line Lender
and any other Lender as to which a delinquent obligation was owed, and (z) in the case of the
failure to fund any Loan, the Borrower, shall have determined (and notified the Administrative
Agent) that they are satisfied, in their reasonable discretion, that such Defaulting Lender intends
to continue to perform its obligations as a Lender hereunder and has all approvals required to
enable it, to continue to perform its obligations as a Lender hereunder. No reference in this
subsection to an event being “cured” shall by itself preclude any claim by any Person against any
Lender that becomes a Defaulting Lender for such direct damages as may otherwise be available to
such Person arising from any failure to fund or pay any amount when due hereunder or from any other
event that gave rise to such Lender’s status as a Defaulting Lender.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



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




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



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




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



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




     (c) Tax Indemnifications.




     (i) Without limiting the provisions of subsection (a) or (b) above, the Borrower shall,
and does hereby, indemnify the Administrative Agent, each Lender and each L/C Issuer, and
shall make payment in respect thereof within 30 days after demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) withheld or
deducted by the Borrower or the Administrative Agent or paid by the Administrative Agent,
such Lender or such L/C Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. The Borrower shall also, and does hereby, indemnify the
Administrative Agent, and shall make payment in



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respect thereof within 30 days after demand therefor, for any amount which a Lender or
an L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as
required by clause (ii) of this subsection. A certificate as to the amount of any such
payment or liability delivered to the Borrower by a Lender or an L/C Issuer (with a copy to
the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of
a Lender or an L/C Issuer, shall be conclusive absent manifest error.




     (ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and
each L/C Issuer shall, and does hereby, indemnify the Borrower and the Administrative Agent,
and shall make payment in respect thereof within 10 days after demand therefor, against any
and all Taxes and any and all related losses, claims, liabilities, penalties, interest and
expenses (including the fees, charges and disbursements of any counsel for the Borrower or
the Administrative Agent) incurred by or asserted against the Borrower or the Administrative
Agent by any Governmental Authority as a result of the failure by such Lender or such L/C
Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or
deficiency of, any documentation required to be delivered by such Lender or such L/C Issuer,
as the case may be, to the Borrower or the Administrative Agent pursuant to subsection (e).
Each Lender and each L/C Issuer hereby authorizes the Administrative Agent to set off and
apply any and all amounts at any time owing to such Lender or such L/C Issuer, as the case
may be, under this Agreement or any other Loan Document against any amount due to the
Administrative Agent under this clause (ii). The agreements in this clause (ii) shall
survive the resignation and/or replacement of the Administrative Agent, any assignment of
rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.



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



     (e) Status of Lenders; Tax Documentation.




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



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pursuant to this Agreement or otherwise to establish such Lender’s status for
withholding tax purposes in the applicable jurisdictions.




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




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




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



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



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



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



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



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



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Borrower or the Administrative Agent to determine the withholding or
deduction required to be made.




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




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



     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or an L/C Issuer, or have any obligation to pay to any Lender or L/C Issuer, any refund of
Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as
the case may be. If the Administrative Agent or any Lender or L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to
the extent of indemnity payments made, or additional amounts paid, by the Borrower under this
Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses and net of any loss or gain realized in the conversion of such funds from or
to another currency incurred by the Administrative Agent, such Lender or such L/C Issuer, as the
case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the request of the
Administrative Agent, such Lender or such L/C Issuer, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or such L/C Issuer in the event the
Administrative Agent, such Lender or such L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative Agent
or any Lender or L/C Issuer to make available its tax returns (or any other information relating to
its taxes that it deems confidential) to the Borrower or any other Person.



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in Dollars or an
Alternative Currency), or to determine or charge interest rates based upon the



59









 







Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits of, Dollars or any Alternative
Currency in the applicable interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or continue Eurocurrency
Rate Loans in the affected currency or currencies or, in the case of Eurocurrency Rate Loans in
Dollars, to convert Base Rate Loans to Eurocurrency Rate Loans, shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or, if applicable and such Loans
are denominated in Dollars, convert all such Eurocurrency Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue
to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurocurrency Rate Loans. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof
that (a) deposits (whether in Dollars or an Alternative Currency) are not being offered to banks in
the applicable offshore interbank market for such currency for the applicable amount and Interest
Period of such Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan (whether denominated in Dollars or an Alternative Currency), or (c) the
Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency
Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the
affected currency or currencies shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans in the affected currency or currencies or, failing that, will be deemed to
have converted such request into a request for a Revolving Credit Borrowing of Base Rate Loans in
the amount specified therein.



     3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.



     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except (A) any reserve requirement
contemplated by Section 3.04(e) and (B) the requirements of the Bank of England and
the Financial Services Authority or the European Central Bank reflected in the Mandatory
Cost, other than as set forth below) or any L/C Issuer;




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



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any Eurocurrency Rate Loan made by it, or change the basis of taxation of payments to
such Lender or such L/C Issuer in respect thereof (except for Indemnified Taxes or Other
Taxes covered by Section 3.01 and the imposition of, or any change in the rate of,
any Excluded Tax payable by such Lender or such L/C Issuer);




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




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



     and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C
Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such
Lender or such L/C Issuer, the Borrower will pay to such Lender or such L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case
may be, for such additional costs incurred or reduction suffered.



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



     (c) Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its
holding Borrower, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such
Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.



61









 





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



     (e) Additional Reserve Requirements. The Borrower shall pay to each Lender, (i) as
long as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), and (ii) as long as such
Lender shall be required to comply with any reserve ratio requirement or analogous requirement of
any central banking or financial regulatory authority imposed in respect of the maintenance of the
Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a
percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal
to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which in each case shall be due and
payable on each date on which interest is payable on such Loan, provided the Borrower shall
have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest or costs from such Lender. If a Lender fails to give notice 10 days prior to
the relevant Interest Payment Date, such additional interest or costs shall be due and payable 10
days from receipt of such notice.



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




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




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




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



62









 






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



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



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



     3.06 Mitigation Obligations; Replacement of Lenders.



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



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



     (c) Limitation on Compensation. Notwithstanding anything to the contrary in this
Article III, the Borrower shall not be required to compensate the Administrative Agent or
any Lender (as applicable) under Section 3.01 for Taxes or Other Taxes, under
Section 3.04(a) for any increased cost or reduction described therein, under
Section 3.04(b) for any reduction described therein, or under Section 3.05 for any
loss, cost or expense described therein, if such Taxes, Other Taxes, increased cost, reduction,
loss, cost or expense, as applicable, shall have been incurred (or assessed, with respect to Taxes
or other Taxes) more than 270 days prior to the date that the Administrative Agent or such Lender
(as applicable) delivers the demand described in the applicable Section, provided,
however, to the extent that any such costs are imposed



63









 







retroactively, the Administrative Agent and the Lenders shall be entitled to recover such
costs from the date such costs were retroactively imposed, provided that a request
for reimbursement of such costs is provided to the Borrower within 270 days of the Administrative
Agent and the Lenders becoming aware of such retroactive costs.



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



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




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



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




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




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




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




     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that the Borrower is duly organized or formed, and that the Borrower and
each Material Subsidiary is validly existing, in good standing in its state of organization
and/or domicile;




     (v) a favorable opinion of counsel to the Borrower, addressed to the Administrative
Agent and each Lender, as to the matters concerning the Borrower and the Loan Documents as
the Required Lenders may reasonably request;




     (vi) a favorable opinion of Ann J. Bruder, Esq., in-house counsel to the Borrower,
addressed to the Administrative Agent and each Lender, as to matters concerning the Borrower
and the Loan Documents as the Required Lenders may reasonably request;



64









 






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




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




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



     (b) Any fees required to be paid on or before the Closing Date shall have been paid, including
any accrued fees pursuant to the Existing Credit Agreement.



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



     (d) The Closing Date shall have occurred on or before November 24, 2009.



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



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



     (a) The representations and warranties of the Borrower contained in Article V and each
other Loan Document or in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects (except that any representation or
warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and
correct in all respects) on and as of the date of such Credit Extension, except (i) to



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the extent that such representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct in all material respects (except that any representation
or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and
correct in all respects) as of such earlier date, (ii) that for purposes of this
Section 4.02, the representations and warranties contained in subsection (a) of
Section 5.06 shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01, except that to the extent such
representations and warranties refer to statements furnished pursuant to clause (b) of
Section 6.01, the representations and warranties in subclauses (i) and (ii) of clause (a)
of Section 5.06 shall be qualified by reference to the absence of footnotes and shall be
subject to year-end adjustments, and (iii) as set forth in the following clause (d), the
representations and warranties set forth in Section 5.06(c) shall not be deemed to be made
for purposes of this Section 4.02 for any Credit Extension to be made during any time that
the Borrower’s Debt Rating is an Investment Grade Rating.



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



     (c) The Administrative Agent and, if applicable, the relevant L/C Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with the requirements
hereof.



     (d) The representations and warranties contained in Sections 5.06(c) were true and
correct on the Closing Date.



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



     Each Request for Credit Extension (other than a Revolving Credit Loan Notice requesting only a
conversion of Revolving Credit Loans to the other Type or a continuation of Eurocurrency Rate
Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of
the date of the applicable Credit Extension.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Subsidiaries. Each of the Borrower’s Subsidiaries as of the Closing Date is set forth on
Schedule 5.01, along with its jurisdiction of formation and the percentage of its Voting
Shares owned by the Borrower and/or its Subsidiaries. Each of the Borrower and its Subsidiaries
has good and marketable title to all of the shares or interests it purports to own of the Capital
Stock of each Subsidiary (or each other Subsidiary, as applicable), free and clear in each case of



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any Lien, other than Permitted Liens. All such shares or interests have been duly issued and
are fully paid and non-assessable.



     5.02 Existence, Qualification and Power; Compliance with Laws. Each of the Borrower and its
Material Subsidiaries (a) is duly organized or formed, validly existing and in good standing under
the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and
authority and all requisite governmental licenses, authorizations, consents and approvals to
(i) own its assets and carry on its business and (ii) execute, deliver and perform its obligations
under the Loan Documents to which it is a party, (c) is duly qualified and is licensed and in good
standing under the Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification or license, and (d) is in compliance
with all Laws; except in each case referred to in clause (b)(i), (c) or (d), to the extent that
failure to do so would not reasonably be expected to have a Material Adverse Effect.



     5.03 Authorization; No Contravention. The execution, delivery and performance by the Borrower
of each Loan Document to which it is party, have been duly authorized by all necessary corporate or
other organizational action, and do not and will not (a) contravene the terms of any of the
Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, (i) any Contractual Obligation to which the Borrower is a party
or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award
to which the Borrower or its property is subject; or (c) violate any Law except, in the case of the
preceding clause (b), to the extent that any such conflict, breach, contravention or creation would
not reasonably be expected to have a Material Adverse Effect.



     5.04 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, the Borrower of this Agreement or any other Loan Document.



     5.05 Binding Effect. This Agreement has been, and each other Loan Document to which the
Borrower is a party, when delivered hereunder, will have been, duly executed and delivered by the
Borrower. This Agreement constitutes, and each other Loan Document to which the Borrower is a
party when so delivered will constitute, a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as enforceability may be
limited by Debtor Relief Laws.



     5.06 Financial Statements; No Material Adverse Effect.



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



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direct or contingent, of the Borrower and its consolidated Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.



     (b) Schedule 5.06 sets forth all material indebtedness and other material liabilities,
direct or contingent, of the Borrower and its consolidated Subsidiaries in excess of $25,000,000 in
the aggregate not reflected on the August 31, 2009 financial statements referred to above, incurred
after the date of such financial statements but prior to the Closing Date, including liabilities
for material commitments and Indebtedness in excess of $25,000,000 in the aggregate.



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



     5.07 Litigation.



     (a) Except as set forth in the Borrower’s Form 10K for the period ended August 31, 2009 filed
with the SEC, there are no proceedings, claims or disputes pending or, to the actual knowledge of
the Borrower, threatened or contemplated, at Law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Material Subsidiaries or against
any of their respective properties or revenues that individually or in the aggregate, if determined
adversely, would reasonably be expected to have a Material Adverse Effect.



     (b) There are no proceedings, claims or disputes pending or, to the actual knowledge of the
Borrower, threatened or contemplated, at Law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Material Subsidiaries or against any of their
respective properties or revenues that purport to pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby.



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



     5.09 Ownership of Property; Liens. Each of the Borrower and its Material Subsidiaries has
good record and indefeasible title to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in title as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Material Subsidiaries is subject to no Liens, other than Permitted
Liens.



     5.10 Environmental Compliance. The Borrower and its Material Subsidiaries have complied with
all Environmental Laws except for any Environmental Liability as a result of any non-compliance
therewith which would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.



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     5.11 Insurance. The properties of the Borrower and its Material Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as are customarily carried by companies of
similar size engaged in similar businesses and owning similar properties in localities where the
Borrower or the applicable Subsidiary operates, except to the extent failure to maintain any such
insurance would not reasonably be expect to result in a Material Adverse Effect.



     5.12 Taxes. The Borrower and its Material Subsidiaries have filed all Federal, state and
other material tax returns and reports required to be filed, and have paid all Federal, state and
other material taxes, assessments, fees and other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Material Subsidiary that would, if made, have a Material Adverse Effect. The
Federal income tax liabilities of the Borrower and its Subsidiaries have been determined by the
Internal Revenue Service and paid for all fiscal years up to and including the fiscal year ended
August 31, 2005.



     5.13 ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of,
such qualification. The Borrower and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has been made with respect
to any Plan.



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



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability which has resulted or which would reasonably be expected to have
a Material Adverse Effect; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA) which has resulted or
which would reasonably be expected to have a Material Adverse Effect; (iv) neither the Borrower nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan which has
resulted or which would reasonably be expected



69









 







to have a Material Adverse Effect; and (v) neither the Borrower nor any ERISA Affiliate has
engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA which has
resulted or which would reasonably be expected to have a Material Adverse Effect.



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



     (a) The Borrower is not engaged and will not engage, principally in the business of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock. Following the application of the
proceeds of each Revolving Borrowing or drawing under each Letter of Credit, not more than 25% of
the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a
consolidated basis) subject to the provisions of Section 7.01 or Section 7.03 or
subject to any restriction contained in any agreement or instrument between the Borrower and any
Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of
Section 8.01(e) will be margin stock.



     (b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of 1940.



     5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions actually known to the Borrower to which
it or any of its Subsidiaries is subject, and all other matters actually known to it, that would
reasonably be expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished in writing by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder (as modified or supplemented by other written
information so furnished) contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial information,
the Borrower represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.



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



     5.17 Solvent. The Borrower is, and the Borrower and its Subsidiaries are on a consolidated
basis, Solvent.



     5.18 Taxpayer Identification Number; Other Identifying Information. The true and correct U.S.
taxpayer identification number of the Borrower is set forth on Schedule 10.02.



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     5.19 Intellectual Property; Licenses, Etc. The Borrower and its Material Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the best knowledge of the Borrower, no
slogan or other advertising device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any Subsidiary infringes upon any
rights held by any other Person. No claim or litigation regarding any of the foregoing is pending
or, to the best knowledge of the Borrower, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01,
6.02, 6.03 and 6.11) cause each Material Subsidiary to:



     6.01 Financial Statements. Deliver to the Administrative Agent with sufficient copies for
each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) as soon as available and in any event within 5 days after the date that annual financial
statements are required to be filed with the SEC, but in no event later than 100 days after the
close of each fiscal year, copies of:




     (i) consolidated and consolidating (by business segment) balance sheets of the Borrower
and its consolidated Subsidiaries as of the close of such fiscal year;




     (ii) consolidated and consolidating (by business segment) statements of income and
retained earnings of the Borrower and its consolidated Subsidiaries for such fiscal year;
and




     (iii) consolidated statements of cash flows of the Borrower and its consolidated
Subsidiaries for such fiscal year,


in each case setting forth in comparative form the consolidated figures for the preceding fiscal
year, and the Borrower further agrees to provide with such financial statements information (by
business segment) as to the amount charged to amortization and depreciation expense, interest
expense, rental expense and capital spending for such fiscal year and the unamortized balance of
goodwill as of the end of such fiscal year, all in reasonable detail and accompanied by an
unqualified opinion thereon of a public accounting firm of recognized national standing to the
effect that the consolidated financial statements present fairly, in all material respects, the
consolidated financial position of the Borrower and its consolidated Subsidiaries as of the end of
the fiscal year being reported on and the consolidated results of the operations and cash flows for
said year in conformity with GAAP and applicable Securities Laws, without expressing a doubt


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as to the ability of the Borrower to continue as a going concern or like qualification or exception
or any qualification or exception as to the scope of such audit, and that the examination of such
accountants in connection with such financial statements has been conducted in accordance with
generally accepted auditing standards and included such tests of the accounting records and such
other auditing procedures as said accountants deemed necessary in the circumstances;




     (b) as soon as available and in any event within 5 days after the date that quarterly
financial statements are required to be filed with the SEC (excluding the last quarterly fiscal
period of each fiscal year), but in no event later than 50 days after the end of each quarterly
fiscal period (except the last) of each fiscal year, copies of:




     (i) consolidated and consolidating (by business segment) balance sheets of the Borrower
and its consolidated Subsidiaries as of the close of such quarterly fiscal period, and, to
the extent available to the Borrower, setting forth in comparative form the consolidated
figures for the corresponding period of the preceding fiscal year;




     (ii) consolidated and consolidating (by business segment) statements of income of the
Borrower and its consolidated Subsidiaries for the portion of the fiscal year ending with
such quarterly fiscal period, and, to the extent available to the Borrower, in each case
setting forth in comparative form the consolidated figures for the corresponding periods of
the preceding fiscal year; and




     (iii) consolidated statements of cash flows of the Borrower and its consolidated
Subsidiaries for the portion of the fiscal year ending with such quarterly fiscal period,
and, to the extent available to the Borrower, setting forth in comparative form the
consolidated figures for the corresponding period of the preceding fiscal year,



     all in reasonable detail and certified as complete and correct by an authorized financial officer
of the Borrower and the Borrower further agrees to provide with such financial statements
information (by business segment) as to the amount charged to amortization and depreciation
expense, interest expense, rental expense and net capital spending, in each case for the periods
indicated above and the unamortized balance of goodwill as at the end of the periods indicated
above.



     As to any information contained in materials furnished pursuant to Section 6.02(c),
the Borrower shall not be separately required to furnish such information under clause (a) or (b)
above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish
the information and materials described in subsections (a) and (b) above at the times specified
therein.



     6.02 Certificates; Other Information. Deliver to the Administrative Agent, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:




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



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     (b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports of the Borrower by independent accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of them;




     (c) promptly after the same are available, copies of each (i) annual report, proxy or
financial statement or, at the Administrative Agent’s request, copies of each other report
or communication sent to the stockholders of the Borrower, and copies of all annual,
regular, periodic and special reports (including Forms 10K, 10Q and 8K) and registration
statements which the Borrower may file or be required to file with the SEC under Section 13
or 15(d) of the Exchange Act, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto and (ii) without duplication, copies of any
certifications or affidavits required by the SEC in connection with the filing of Forms 10K,
10Q and 8K; and




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



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided that: (i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent for any Lender that requests the Borrower to deliver such paper copies until a
written request to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the
Administrative Agent and each Lender of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance the Borrower shall be
required to provide paper copies of the Compliance Certificates if required by
Section 6.02(a) to the Administrative Agent and each of the Lenders. Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery
or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not



73









 







wish to receive material non-public information with respect to the Borrower or its
securities) (each a “Public Lender”). The Borrower hereby agrees that so long as the
Borrower is the issuer of any outstanding debt or equity securities that are registered or issued
pursuant to a private offering or is actively contemplating issuing any such securities (w) all
Borrower Materials that are to be made available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower
shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the
Lenders to treat such Borrower Materials as not containing any material non-public information 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 confidential information, they shall be treated as set forth in Section 11.07);
(y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of
the Platform designated “Public Investor;” and (z) the Administrative Agent and the 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.” Notwithstanding the
foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”



     6.03 Notices. Promptly notify the Administrative Agent:



     (a) of the occurrence of any Default;



     (b) of any matter that has resulted or would reasonably be expected to result in a Material
Adverse Effect, including to the extent any of the following would reasonably be expected to result
in a Material Adverse Effect, (i) any breach or non-performance of, or any default under, a
Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any litigation or
proceeding affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws;



     (c) of the occurrence of any ERISA Event; or



     (d) of any announcement by Moody’s or S&P of any change in a Debt Rating.



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



     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its material obligations and liabilities, including (a) all material tax liabilities, assessments
and governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such



74









 







Material Subsidiary; (b) all lawful claims which, if unpaid, would by Law become a Lien upon
its property, unless the same are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves in accordance with GAAP are being maintained by the
Borrower or such Material Subsidiary; and (c) all Indebtedness with a principal obligation of not
less than $10,000,000, as and when due and payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing such Indebtedness.



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 7.02 or 7.03; (b) take all reasonable
action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to do so would not
reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the non-preservation of which would
reasonably be expected to have a Material Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment used in the operation of its business in good working order and condition,
ordinary wear and tear excepted and except in connection with transactions permitted by
Section 7.04; and (b) make all necessary repairs thereto and renewals and replacements
thereof except where the failure to do so would not reasonably be expected to have a Material
Adverse Effect.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Borrower, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.



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



     6.09 Books and Records. (a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP, consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Borrower or such Material
Subsidiary, as the case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Material Subsidiary, as the case may be.



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent, on behalf of Lenders, to visit and inspect any of its properties, to examine
its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and
to discuss its affairs, finances and accounts with its officers and independent public



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accountants, in each case as reasonably necessary, and all at such reasonable times during
normal business hours and as often as may be reasonably desired, upon reasonable advance notice
(which notice shall include the subject matter of the proposed inspection, examination or
discussion) to the Borrower; provided, however, that when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Borrower at any time
during normal business hours upon no less than two days advance notice.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate
purposes not in contravention of any Law or of any Loan Document.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Revolving Credit Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding:



     7.01 Liens. The Borrower shall not, nor shall it permit any Subsidiary to, directly or
indirectly, create, incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following (“Permitted
Liens”):




     (a) Liens for property taxes and assessments or governmental charges or levies and
Liens securing claims or demands of mechanics and materialmen, if payment thereof is
not at the time required by Section 6.04;




     (b) Liens of or resulting from any judgment or award, the time for the appeal or
petition for rehearing of which shall not have expired, or in respect of which the Borrower
or a Subsidiary shall at any time in good faith be prosecuting an appeal or proceeding for a
review and in respect of which a stay of execution pending such appeal or proceeding for
review shall have been secured or which are covered by insurance and which are removed
within 60 days after attachment; provided the aggregate amount of such judgments and
awards shall not exceed $10,000,000;




     (c) Liens incidental to the conduct of business or the ownership of properties and
assets (including Liens in connection with worker’s compensation, unemployment insurance and
other like laws, warehousemen’s and attorneys’ liens and statutory landlords’ liens, but
excluding any Lien imposed by ERISA) and Liens to secure the performance of bids, tenders or
trade contracts, or to secure statutory obligations, surety or appeal bonds or other Liens
of like general nature incurred in the ordinary course of business and not in connection
with the borrowing of money, if in each case, the obligation secured is not overdue
or, if overdue, is being contested in good faith by appropriate actions or
proceedings;




     (d) Liens securing Indebtedness of a Subsidiary to the Borrower or to a Material
Domestic Subsidiary;



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     (e) Liens existing as of the Closing Date and reflected in Schedule 7.01 and
any extension, renewal or replacement of such liens in connection with the extension,
renewal or refunding of the Indebtedness secured thereby, provided (i) the principal
amount of such Indebtedness is not increased, other than through the capitalization of
accrued interest, and (ii) such extension, renewal or replacement shall be limited to all or
any part of the same property that secured the Lien extended, renewed or replaced (together
with improvements on such property);




     (f) Liens incurred after the Closing Date given to secure the payment of the purchase
price incurred in connection with the acquisition, alteration or improvement of fixed assets
useful and intended to be used in carrying on the business of the Borrower or a Subsidiary
(and any renewals or extensions of any Indebtedness so secured), including Liens existing on
such fixed assets at the time of acquisition thereof or at the time of acquisition by the
Borrower or a Subsidiary of any business entity then owning such fixed assets, whether or
not such existing Liens were given to secure the payment of the purchase price of the fixed
assets to which they attach so long as they were not incurred, extended or renewed in
contemplation of such acquisition, provided (i) the Lien shall attach solely to the
fixed assets acquired, altered or improved and (ii) at the time of acquisition, alteration
or improvement of such fixed assets, the aggregate amount remaining unpaid on all
Indebtedness secured by Liens on such fixed assets whether or not assumed by the Borrower or
a Subsidiary shall not exceed an amount equal to the lesser of the total cost of such
acquisition, alteration or improvement or fair market value at the time of acquisition,
alteration or improvement of such fixed assets (as determined in good faith by the Board of
Directors of the Borrower);




     (g) Liens in connection with the securitizations permitted pursuant to
Section 7.03(e) and Asset Sales permitted pursuant to 
Section 7.03(f);




     (h) Liens on the assets of CMC Zawiercie S.A., a Polish joint stock company, in an
amount not to exceed $200,000,000 in the aggregate, provided that such Liens are
non-recourse to the Borrower and its other Subsidiaries; and




     (i) Liens in addition to those permitted by the foregoing clauses (a) through (h)
created after the Closing Date, provided at the time of the creation of any such
Lien and after giving effect thereto and to the application of the proceeds of any
Indebtedness secured thereby, the aggregate amount of all Indebtedness secured by such Liens
does not exceed 10% of Consolidated Tangible Net Worth.



     7.02 Mergers and Consolidations. The Borrower shall not, and shall not permit any Material
Subsidiary to, consolidate with or be a party to a merger with any other corporation;
except:




     (a) any Material Domestic Subsidiary or any Solvent Subsidiary may merge or consolidate
with or into the Borrower or any Material Domestic Subsidiary, so long as in any merger or
consolidation involving the Borrower, the Borrower shall be the surviving or continuing
corporation and any merger or consolidation involving a



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Subsidiary that is not a Material Domestic Subsidiary, the Borrower or the Material
Domestic Subsidiary shall be the surviving or continuing corporation; and




     (b) the Borrower may consolidate or merge with any other corporation provided
(A) the Borrower shall be the surviving or continuing corporation, and (B) at the time of
such consolidation or merger and after giving effect thereto no Default or Event of Default
shall have occurred and be continuing.



     7.03 Sales of Assets. The Borrower shall not, and shall not permit any Material Subsidiary to
make any Disposition, except:




     (a) Dispositions of obsolete or worn out property in the ordinary course of business;




     (b) Dispositions of inventory and Cash and Cash Equivalents in the ordinary course of
business;




     (c) Dispositions among the Borrower and Material Domestic Subsidiaries;




     (d) Dispositions in which the Net Proceeds thereof are used within 365 days of such
Disposition to purchase assets useful in the business of the Borrower and its Material
Subsidiaries;




     (e) Dispositions by the Borrower and the Securitizing Subsidiaries in respect of a
securitization of accounts receivable, provided the aggregate funding in respect thereof
shall not exceed $100,000,000 at any one time outstanding;




     (f) Dispositions by the Borrower and the Asset Sale Subsidiaries in respect of Asset
Sales by such Persons, provided the aggregate funding in respect thereof shall not exceed an
amount equal to the Dollar Equivalent of $200,000,000 at any one time outstanding; and




     (g) Dispositions other than those otherwise specifically permitted pursuant to
clauses (a) through (f) above, provided that the aggregate book value of assets Disposed of
during any fiscal year may not exceed 30% of Consolidated Tangible Assets determined as of
the last day of the immediately preceding fiscal year.



     Provided, however, notwithstanding anything above to the contrary, in no event shall any
Disposition be less than for full, fair and reasonable consideration.



     7.04 Change in Nature of Business. The Borrower shall not, and shall not permit any
Subsidiary to, engage in any material line of business substantially different from those lines of
business conducted by the Borrower and its Subsidiaries on the date hereof or any business
substantially related or incidental thereto.



     7.05 Transactions with Affiliates. The Borrower shall not, and shall not permit any Material
Subsidiary to, enter into or be a party to any transaction or arrangement with any Affiliate
(including the purchase from, sale to or exchange of property with, or the rendering of



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any service by or for, any Affiliate), except in the ordinary course of, and pursuant
to the reasonable requirements of the Borrower’s or such Material Subsidiary’s business and upon
fair and reasonable terms no less favorable to the Borrower or such Material Subsidiary than would
obtain in a comparable arm’s length transaction with a Person other than an Affiliate; but
the Borrower may make charitable contributions to any not-for-profit entity under Section 510(c)(3)
of the Code, in an amount up to 5% of the Borrower’s pre-tax profit in any fiscal year.



     7.06 Burdensome Agreements. The Borrower shall not, nor shall it permit any Material
Subsidiary to, enter into any Contractual Obligation (other than this Agreement or any other Loan
Document) that (a) limits the ability (i) of any Material Subsidiary to declare or pay Dividends to
the Borrower or to otherwise transfer property to the Borrower, or (ii) of the Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person;
provided, however, that this clause (ii) shall not prohibit any negative pledge or
restriction on transfer incurred or provided in favor of any holder of Indebtedness solely to the
extent any such negative pledge or restriction on transfer relates to the property financed by or
the subject of such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of
such Person if a Lien is granted to secure another obligation of such Person.



     7.07 Use of Proceeds. The Borrower shall not, nor shall it permit any Subsidiary to, use the
proceeds of any Credit Extension, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U
of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or
to refund indebtedness originally incurred for such purpose.



     7.08 Interest Coverage Ratio. The Borrower shall not permit the Interest Coverage Ratio to be
less than (a) 1.50 to 1.00 at any time during the period from and including the Closing Date
through and including May 31, 2010 and (b) 2.50 to 1.00 at any time thereafter.



     7.09 Debt to Capitalization Ratio. The Borrower shall not permit the Debt to Capitalization
Ratio to be greater than 0.60 to 1.00 at any time.



     7.10 Liquidity. From and after the Closing Date to and including the date that the Borrower
delivers a Compliance Certificate pursuant to Section 6.02(a) indicating that the Interest
Coverage Ratio for the four fiscal quarter period covered by such Compliance Certificate is at
least 2.50 to 1.00, the Borrower shall maintain Liquidity of at least $300,000,000. Thereafter, at
such time, if any, that the Borrower delivers a Compliance Certificate pursuant to
Section 6.02(a) indicating that the Interest Coverage Ratio is less than 2.50 to 1.00 for
the four fiscal quarter period covered by such Compliance Certificate, the Borrower shall maintain
Liquidity of at least $300,000,000 until the date of delivery of a Compliance Certificate, if any,
indicating that the Interest Coverage Ratio for the four fiscal quarter period covered by such
Compliance Certificate is at least 2.50 to 1.00.



     7.11 ERISA. The Borrower shall not, and shall not suffer or permit any of its ERISA
Affiliates to: (a) engage in a prohibited transaction or violation of the fiduciary responsibility
rules with respect to any Plan which has resulted or would reasonably be expected to result in a
Material Adverse Effect, (b) engage in a transaction that could be subject to Section 4069 or
4212(c) of ERISA or (c) withdraw from any Multiemployer Plan or permit any Plan maintained



79









 







by it to be terminated if such withdrawal or termination could result in withdrawal liability
(as described in Part 1 of Subtitle E of Title IV of ERISA) or the imposition of a Lien on any
property of the Borrower or any Subsidiary pursuant to Section 4068 of ERISA.



     7.12 Accounting Changes. The Borrower shall not, and shall not suffer or permit any Material
Subsidiary to, make any significant change in accounting treatment or reporting practices, except
as required or permitted by GAAP or any Governmental Authority, as applicable, or change the fiscal
year of the Borrower or of any Material Subsidiary.



     7.13 Speculative Hedges. The Borrower will not, and will not permit any Material Subsidiary
to, enter into any interest rate protection agreement, foreign currency exchange agreement,
commodity price protection agreement or other interest, currency exchange rate or commodity price
hedging agreement except those entered into with the intention to hedge or mitigate risks
to which the Borrower or such Material Subsidiary is exposed in the conduct of its business or the
management of its liabilities.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower fails to pay (i) when and as required to be paid
herein, any amount of principal of any Loan or any L/C Obligation, or (ii) the earlier of (A) five
calendar days or (B) two Business Days after notice, that the same becomes due, any interest on any
Loan or on any L/C Obligation, or any facility fee or any other fees or amounts due hereunder or
under any other Loan Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.03, 6.05, 6.10, or 6.11
or Article VII; or



     (c) Other Defaults. The Borrower fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for 30 days after the earlier of (i) the
date upon which a Responsible Officer knew or reasonably should have known of such failure or
(ii) the date upon which written notice thereof is given to the Borrower by the Administrative
Agent or any Lender; or



     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or



     (e) Cross-Default. The Borrower or any Material Subsidiary (i) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness) having an
aggregate principal amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of more than
$10,000,000 and such failure continues after the applicable grace or notice period, if any,



80









 







specified in the relevant document on the date of such failure, or (ii) fails to observe or
perform any other agreement or condition relating to any such Indebtedness or Guarantee or
contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event or condition occurs, the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or
to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or
an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded;
or



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



     (g) Inability to Pay Debts; Attachment. (i) The Borrower or any Material Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its debts as they
become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise,
or (ii) any writ or warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is not released, vacated or
fully bonded within 60 days after its issue or levy; or



     (h) Monetary Judgments. One or more non-interlocutory judgments, non-interlocutory
orders, decrees or arbitration awards is entered against the Borrower or any Subsidiary involving
in the aggregate a liability (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage) as to any single or related series of transactions,
incidents or conditions, of $10,000,000 or more, and the same shall remain unsatisfied, unvacated
and unstayed pending appeal for a period of 30 days after the entry thereof; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or would reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of $10,000,000, (ii) the aggregate amount of Unfunded Pension Liability among all Pension
Plans at any time exceeds $10,000,000; or (iii) the Borrower or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of $10,000,000; or



81









 





     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or satisfaction in full
of all the Obligations, ceases to be in full force and effect; or the Borrower or any other Person
contests in any manner the validity or enforceability of any Loan Document; or the Borrower denies
that it has any or further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document; or



     (k) Change of Control. There occurs any Change of Control with respect to the
Borrower.



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




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




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




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




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



     provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of an L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.



     8.03 Application of Funds. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and payable and
the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the Obligations shall be
applied by the Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges, Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its capacity as
such;



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     Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest and Letter of Credit Fees)
payable to the Lenders (including fees, charges, Attorney Costs and amounts payable under
Article III), ratably among them in proportion to the amounts described in this
clause Second payable to them;



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



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



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



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



     Subject to Section 2.03(c) and 2.15, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth
above.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the L/C Issuers hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuers, and the Borrower shall not have rights as a third party beneficiary of any of such
provisions (other than in respect of the consent right of the Borrower set forth in
Section 9.06).



     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with



83









 







the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lenders.



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




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




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




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



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



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



     9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,



84









 







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



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



     9.06 Resignation of Administrative Agent.



     (a) The Administrative Agent may at any time give notice of its resignation to the Lenders,
the L/C Issuers and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, with the consent of the Borrower so long as no Event of Default has
occurred and is continuing (such consent not to be unreasonably withheld or delayed), to appoint a
successor, which shall be a bank with an office in the United States, or an Affiliate of any such
bank with an office in the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Loan Documents (except that in the case of any collateral security held by the Administrative
Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
and each L/C Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of



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the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent,
and the retiring Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom as provided above
in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be
the same as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect
for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.



     (b) The Administrative Agent agrees that in the event it shall fail, in its capacity as a
Lender hereunder, to fund its portion of any Borrowing within three Business Days of the date on
which it shall have been required to fund same, so long as the Administrative Agent is a Defaulting
Lender as a result of such failure, it shall cooperate in good faith with efforts initiated by the
Borrower to replace it with a successor administrative agent that is satisfactory to the Required
Lenders and the Borrower (including resigning in connection with such replacement).



     (c) Any resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as an L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit issued
by the retiring L/C Issuer, if any, outstanding at the time of such succession or make other
arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the
retiring L/C Issuer with respect to such Letters of Credit.



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and each L/C Issuer
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Bookrunners, Arrangers or Co-Syndication Agents listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder.



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     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to the Borrower, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the L/C Issuers and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuers and the Administrative Agent under
Sections 2.03(h) and (i), 2.09 and 10.04) allowed in such
judicial proceeding; and




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



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



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



ARTICLE X.

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower therefrom, shall be effective unless
in writing signed by the Required Lenders and the Borrower, as the case may be, and acknowledged by
the Administrative Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that no
such amendment, waiver or consent shall:




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



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




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




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




     (e) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of each
Lender;




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




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



     and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the relevant L/C Issuer in addition to the Lenders required above, affect the
rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect
the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder
waived, in a writing executed only by the parties thereto. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the
consent of all Lenders may be effective with the consent of all Lenders other than Defaulting
Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended
without the consent of such Defaulting Lender, (y) any waiver, amendment or other modification
requiring the consent of all Lenders or each affected Lender that reduces the principal of, or the
rate of interest specified herein on, any Loan or any fees, in each case payable by the Borrower to
a Defaulting Lender under the Loan Documents shall



88









 







required the consent of such Defaulting Lender, and (z) any amendment of clause (x) or (y)
immediately preceding shall require the consent of such Defaulting Lender.



     10.02 Notices; Effectiveness; Electronic Communication.



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




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




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



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



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



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



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



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender or L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender, or L/C Issuer or any
other Person for indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).



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



     (e) Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative
Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Revolving Credit Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of notice



90









 







specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify the Administrative Agent, each L/C Issuer, each
Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by or on behalf of the
Borrower. All telephonic notices to and other telephonic communications with the Administrative
Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents
to such recording.



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



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



     10.04 Expenses; Indemnity; Damage Waiver.



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



91









 







renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender or L/C Issuer
(including the fees, charges and disbursements of any counsel for the Administrative Agent or any
Lender or L/C Issuer), in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.



     (b) Indemnification by the Borrower.




     (i) WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED, THE BORROWER
SHALL INDEMNIFY AND HOLD HARMLESS THE ADMINISTRATIVE AGENT (AND ANY SUB-AGENT THEREOF), EACH
L/C ISSUER, EACH LENDER AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (COLLECTIVELY
THE “INDEMNITEES”) FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND
DISBURSEMENTS (INCLUDING ATTORNEY COSTS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY
TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING
TO OR ARISING OUT OF OR IN CONNECTION WITH (i) THE EXECUTION, DELIVERY, ENFORCEMENT,
PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENT (OTHER THAN
ADMINISTRATION COSTS, FEES OR EXPENSES INCURRED IN THE ORDINARY ADMINISTRATION OF THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS RELATED TO THE INFORMATION POSTINGS, REVOLVING CREDIT
LOAN NOTICES, PAYMENT NOTICES, BILLING, COLLECTION OF LENDER PAYMENTS AND THE DISTRIBUTION
OF PAYMENTS MADE BY THE BORROWER TO THE ADMINISTRATIVE AGENT FOR THE BENEFIT OF LENDERS THAT
HAVE BEEN PAID AND ARE CONTEMPLATED BY THE FEE LETTER), LETTER OR INSTRUMENT DELIVERED IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED THEREBY, (ii) ANY COMMITMENT, REVOLVING CREDIT LOAN, SWING LINE
LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY AN
L/C ISSUER TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS PRESENTED
IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER OF
CREDIT), OR (iii) ANY CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE
FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY (INCLUDING ANY INVESTIGATION
OF, PREPARATION FOR, OR DEFENSE OF ANY PENDING OR THREATENED (IN WRITING) CLAIM,
INVESTIGATION, LITIGATION OR PROCEEDING) AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY
THERETO (ALL THE FOREGOING, COLLECTIVELY, THE



92









 






“INDEMNIFIED LIABILITIES”), IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING,
IN WHOLE OR IN PART, OUT OF THE NEGLIGENCE OF THE INDEMNITEE; PROVIDED THAT SUCH
INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE (i) TO THE EXTENT THAT SUCH
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES OR DISBURSEMENTS ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION
BY FINAL AND NON-APPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH INDEMNITEE OR (ii) FOR ANY LOSS ASSERTED AGAINST IT BY ANOTHER
INDEMNITEE, PROVIDED THAT SUCH ASSERTED LOSS WAS NOT A RESULT OF THE BORROWER’S OR ITS
SUBSIDIARIES’ OWN CONDUCT. NO INDEMNITEE SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE
USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER
SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, NOR SHALL ANY
INDEMNITEE HAVE ANY LIABILITY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH
OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE). THE FOREGOING INDEMNITY SHALL
APPLY TO THE NEGLIGENCE OF THE INDEMNITEE (BUT NOT THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE INDEMNITEE). ALL AMOUNTS DUE UNDER THIS SECTION 10.04 SHALL BE
PAYABLE WITHIN TEN BUSINESS DAYS AFTER DEMAND THEREFOR. THE AGREEMENTS IN THIS SECTION
SHALL SURVIVE THE RESIGNATION OF THE ADMINISTRATIVE AGENT, THE REPLACEMENT OF ANY LENDER,
THE TERMINATION OF THE AGGREGATE COMMITMENTS AND THE REPAYMENT, SATISFACTION OR DISCHARGE OF
ALL THE OTHER OBLIGATIONS.




     (ii) EACH INDEMNITEE AGREES WITH RESPECT TO ANY ACTION AGAINST IT IN RESPECT OF WHICH
INDEMNITY MAY BE SOUGHT UNDER THIS SECTION 10.04, THAT SUCH INDEMNITEE WILL GIVE
WRITTEN NOTICE OF THE COMMENCEMENT OF SUCH ACTION TO THE BORROWER WITHIN A REASONABLE TIME
AFTER SUCH INDEMNITEE IS MADE A PARTY TO SUCH ACTION. UPON RECEIPT OF ANY SUCH NOTICE BY
THE BORROWER, THE BORROWER, UNLESS SUCH INDEMNITEE SHALL BE ADVISED BY ITS COUNSEL THAT
THERE ARE OR MAY BE LEGAL DEFENSES AVAILABLE TO SUCH INDEMNITEE THAT ARE DIFFERENT FROM, IN
ADDITION TO, OR IN CONFLICT WITH, THE DEFENSES AVAILABLE TO THE BORROWER, MAY PARTICIPATE
WITH THE INDEMNITEE IN THE DEFENSE OF SUCH INDEMNIFIED MATTER; PROVIDED, HOWEVER, NOTHING
PROVIDED HEREIN SHALL (i) ENTITLE THE BORROWER TO ASSUME THE DEFENSE OF SUCH INDEMNIFIED
MATTER OR (ii) REQUIRE THE CONSENT OF THE BORROWER FOR ANY SETTLEMENT OR ACTION IN RESPECT
OF SUCH INDEMNIFIED MATTER, ALTHOUGH EACH INDEMNITEE AGREES TO



93









 







CONFER AND CONSULT WITH THE BORROWER BEFORE MAKING ANY SETTLEMENT OF SUCH INDEMNIFIED
MATTER.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), any L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or such L/C Issuer in its capacity as
such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent) or such L/C Issuer in connection with such capacity. The obligations of the
Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).



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



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



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



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any
L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part



94









 







thereof originally intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender
and each L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is made at a rate per
annum equal to the applicable Overnight Rate from time to time in effect, in the applicable
currency of such recovery or payment. The obligations of the Lenders and the L/C Issuers under
clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.



     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this
Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.



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




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade



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Date” is specified in the Assignment and Assumption, as of the Trade Date,
shall not be less than $5,000,000 unless each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an
Assignee Group and concurrent assignments from members of an Assignee Group to a
single Eligible Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of determining whether
such minimum amount has been met.




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




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




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




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




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




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




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




     (v) No Assignment to Certain Persons. No such assignment shall be made
(A) without the consent of the Required Lenders and the Administrative Agent and
cancellation of the Commitments and Obligations assigned with such consent, to the Borrower
or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting



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Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B), or
(C) to a natural person.




     (vi) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties
to the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share
of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with
its Applicable Percentage.




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


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (d) of
this Section.




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



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hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. In addition, the Administrative Agent shall maintain on the Register information
regarding the designation, and the revocation, of any Lender as a Defaulting Lender. The Register
shall be available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.08
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.



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



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



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     (g) Resignation as an L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns
all of its Revolving Credit Commitment and Revolving Credit Loans pursuant to subsection (b) above,
Bank of America may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as an L/C
Issuer and/or (ii) upon 30 days’ notice to the Borrower, resign as Swing Line Lender. In the event
of any such resignation as an L/C Issuer or Swing Line Lender, the Borrower shall be entitled to
appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Bank of America as an L/C Issuer or Swing Line Lender, as the case
may be. If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers,
privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit issued by it
and outstanding as of the effective date of its resignation as an L/C Issuer and all L/C
Obligations with respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If
Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line
Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders to make Base Rate
Loans or fund risk participations in outstanding Swing Line Loans pursuant to
Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender,
(a) such successor shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit issued
by Bank of America, if any, and outstanding at the time of such succession or make other
arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it or its Affiliates (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or any
Eligible Assignee invited to be a Lender pursuant to Section 2.14(c) or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than the Borrower.



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



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



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by applicable law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final, in whatever currency)
at any time held and other obligations (in whatever currency) at any time owing by such Lender,
such L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter existing under this Agreement or
any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such
Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrower may be contingent or unmatured or are owed
to a branch or office of such Lender or such L/C Issuer different from the branch or office holding
such deposit or obligated on such indebtedness; provided, that in the event that any
Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid
over immediately to the Administrative Agent for further application in accordance with the
provisions of Section 2.16 and, pending such payment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the
Administrative Agent a statement describing in reasonable detail the obligations owing to such
Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each
L/C Issuer and their respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective
Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or,



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if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.



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



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



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.12, if and to the extent that the enforceability of any provision of this
Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable,
then such provisions shall be deemed to be in effect only to the extent so limited.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or any



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




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




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




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and




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



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



     10.14 Governing Law.



     (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.



     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS SITTING IN DALLAS COUNTY, TEXAS OR OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENCE, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT



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OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER
MEANS PERMITTED BY THE LAW OF SUCH STATE.



     10.15 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that:
(i)(A) the arranging and other services regarding this Agreement provided by the Administrative
Agent, the Lenders and the Arrangers are arm’s-length commercial transactions between the Borrower
and its Affiliates, on the one hand, and the Administrative Agent, the Lenders 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 and by the other Loan Documents; (ii)(A) the Administrative Agent, each Lender and each
Arranger each is and has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent
or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) neither the
Administrative Agent nor any Lender or 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 Administrative Agent, each Lender
and each Arranger 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
Administrative Agent nor any Lender or Arranger has any obligation to disclose any of such
interests to the Borrower or its



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Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases
any claims that it may have against the Administrative Agent, each Lender and each Arranger with
respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect
of any transaction contemplated hereby.



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



     10.18 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and
the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as applicable, to
identify the Borrower in accordance with the Act. The Borrower shall, promptly following a request
by the Administrative Agent or any Lender, provide all documentation and other information that the
Administrative Agent or such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and regulations, including the Act.



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



104









 







as the case may be, agrees to return the amount of any excess to the Borrower (or to any other
Person who may be entitled thereto under Applicable Law).



     10.20 Exceptions to Covenants. Neither the Borrower nor any Subsidiary shall be deemed to be
permitted to take any action or fail to take any action which is permitted as an exception to any
of the covenants contained herein or which is within the permissible limits of any of the covenants
contained herein if such action or omission would result in the breach of any other covenant
contained herein.



     10.21 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.








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



	 	 	 	 	 	 	 	 	 
	 	 	COMMERCIAL METALS COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Murray R. McClean	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Murray R. McClean	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Chairman of the Board, President and CEO	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Alan Tapley	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Alan Tapley	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Officer	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender, Swing Line Lender
and an L/C Issuer	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ David L. McCanley	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	David L. McCanley	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Senior Vice President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BNP PARIBAS	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Michael Kowalczuk	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Michael Kowalczuk	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Vice President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Berangere Allen	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Berangere Allen	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Vice President	 	 
	 

	 	 	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 	 	 
	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ D. Barnell	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	D. Barnell	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Authorized Signatory	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	WELLS FARGO HSBC TRADE BANK	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ John Peloubet	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	John Peloubet	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Vice President/Relationship Manager	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ David L. Howard	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	David L. Howard	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Senior Vice President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	COMPASS BANK	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Randall L. Morrison	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Randall L. Morrison	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Managing Director	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	SCOTIABANC INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/  J. F. Todd	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	J. F. Todd	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Managing Director	 	 
	 

	 	 	 	 	 	 	 	 





 









 







	 	 	 	 	 	 	 	 	 
	 	 	THE ROYAL BANK OF SCOTLAND plc	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Steve Ray	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Steve Ray	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Senior Vice President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK MELLON	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Timothy Glass	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Timothy Glass	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Vice President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	HSBC BANK USA, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Steven F. Larsen	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Steven F. Larsen	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	First Vice President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	NATIONAL AUSTRALIA BANK LIMITED	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Courtney A. Cloe	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Courtney A. Cloe	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Director	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	COMERICA BANK	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Catherine Meister Young	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Catherine Meister Young	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Vice President	 	 
	 

	 	 	 	 	 	 	 	 








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	 	 	CITIBANK, N.A.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ David C. Hauglid	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	David C. Hauglid	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Sr. Relationship Manager	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	STANDARD CHARTERED BANK	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ James P. Hughes	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	James P. Hughes	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Director	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	GOLDMAN SACHS BANK USA	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Mark Walton	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Mark Walton	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Authorized Signatory	 	 
	 

	 	 	 	 	 	 	 	 








  Signature
Page to Credit Agreement