Exhibit 10.1




 





 


 


CREDIT
AGREEMENT





dated as of November 18, 2005,





among





SPX CORPORATION,



The Foreign Subsidiary Borrowers Party Hereto,



The Lenders Party Hereto,





THE BANK OF NOVA SCOTIA,

as Syndication Agent,





BANK OF AMERICA, N.A.

and

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Documentation Agents,





and





JPMORGAN CHASE BANK, N.A.,
as Administrative
Agent


 










 


DEUTSCHE BANK
AG,

DRESDNER KLEINWORT WASSERSTEIN,

the Investment Banking Division of Dresdner Bank AG,

and

J.P. MORGAN SECURITIES INC.

as Foreign Trade Facility Bookrunners and Mandated Arrangers,


 


and


 


J.P. MORGAN
SECURITIES INC.,
as Sole Lead
Arranger and Sole Bookrunner




 


 





 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I Definitions

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1.

  	
  Defined
  Terms

  	
   

  
	
  SECTION 1.2.

  	
  Classification of Loans and Borrowings

  	
   

  
	
  SECTION 1.3.

  	
  Terms Generally

  	
   

  
	
  SECTION 1.4.

  	
  Accounting Terms; GAAP

  	
   

  
	
  SECTION 1.5.

  	
  Exchange Rates

  	
   

  
	
  SECTION 1.6.

  	
  Currency Conversion

  	
   

  
	
  SECTION 1.7.

  	
  Canadian Borrowing Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II The Credits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1.

  	
  Commitments; Incremental Facilities

  	
   

  
	
  SECTION 2.2.

  	
  Loans and Borrowings

  	
   

  
	
  SECTION 2.3.

  	
  Requests for Borrowings

  	
   

  
	
  SECTION 2.4.

  	
  Swingline Loans

  	
   

  
	
  SECTION 2.5.

  	
  Letters of Credit

  	
   

  
	
  SECTION 2.6.

  	
  Foreign Credit Instruments

  	
   

  
	
  SECTION 2.7.

  	
  Funding of Borrowings

  	
   

  
	
  SECTION 2.8.

  	
  Interest Elections

  	
   

  
	
  SECTION 2.9.

  	
  Termination and Reduction of Commitments

  	
   

  
	
  SECTION 2.10.

  	
  Evidence of Debt

  	
   

  
	
  SECTION 2.11.

  	
  Repayment of Loans

  	
   

  
	
  SECTION 2.12.

  	
  Prepayment of Loans

  	
   

  
	
  SECTION 2.13.

  	
  Certain Payment Application Matters

  	
   

  
	
  SECTION 2.14.

  	
  Fees

  	
   

  
	
  SECTION 2.15.

  	
  Interest

  	
   

  
	
  SECTION 2.16.

  	
  Alternate Rate of Interest

  	
   

  
	
  SECTION 2.17.

  	
  Increased Costs

  	
   

  
	
  SECTION 2.18.

  	
  Break Funding Payments

  	
   

  
	
  SECTION 2.19.

  	
  Taxes

  	
   

  
	
  SECTION 2.20.

  	
  Payments Generally; Pro Rata Treatment; Sharing of Set-offs

  	
   

  
	
  SECTION 2.21.

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  
	
  SECTION 2.22.

  	
  Change in Law

  	
   

  
	
  SECTION 2.23.

  	
  Foreign Subsidiary Borrowers

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III
  Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1.

  	
  Organization; Powers.

  	
   

  
	
  SECTION 3.2.

  	
  Authorization; Enforceability

  	
   

  
	
  SECTION 3.3.

  	
  Governmental Approvals; No Conflicts

  	
   

  
	
  SECTION 3.4.

  	
  Financial Condition; No Material Adverse Change

  	
   

  
	
  SECTION 3.5.

  	
  Properties

  	
   

  
	
  SECTION 3.6.

  	
  Litigation and Environmental Matters

  	
   

  



 


i





















 


	
  SECTION 3.7.

  	
  Compliance with Laws and Agreements

  	
   

  
	
  SECTION 3.8.

  	
  Investment and Holding Company Status

  	
   

  
	
  SECTION 3.9.

  	
  Taxes

  	
   

  
	
  SECTION 3.10.

  	
  ERISA

  	
   

  
	
  SECTION 3.11.

  	
  Disclosure

  	
   

  
	
  SECTION 3.12.

  	
  Subsidiaries

  	
   

  
	
  SECTION 3.13.

  	
  Labor Matters

  	
   

  
	
  SECTION 3.14.

  	
  Solvency

  	
   

  
	
  SECTION 3.15.

  	
  Senior Indebtedness

  	
   

  
	
  SECTION 3.16.

  	
  Security Documents

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV
  Conditions

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1.

  	
  Effective Date

  	
   

  
	
  SECTION 4.2.

  	
  Each Credit Event

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V
  Affirmative Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1.

  	
  Financial Statements and Other Information

  	
   

  
	
  SECTION 5.2.

  	
  Notices of Material Events

  	
   

  
	
  SECTION 5.3.

  	
  Information Regarding Collateral

  	
   

  
	
  SECTION 5.4.

  	
  Existence; Conduct of Business

  	
   

  
	
  SECTION 5.5.

  	
  Payment of Obligations

  	
   

  
	
  SECTION 5.6.

  	
  Maintenance of Properties

  	
   

  
	
  SECTION 5.7.

  	
  Insurance

  	
   

  
	
  SECTION 5.8.

  	
  Books and Records; Inspection and Audit Rights

  	
   

  
	
  SECTION 5.9.

  	
  Compliance with Laws and Contractual Obligations

  	
   

  
	
  SECTION 5.10.

  	
  Use of Proceeds and Letters of Credit and Foreign Credit Instruments

  	
   

  
	
  SECTION 5.11.

  	
  Additional Collateral

  	
   

  
	
  SECTION 5.12.

  	
  Further Assurances

  	
   

  
	
  SECTION 5.13.

  	
  Post-Closing Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
  Negative Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1.

  	
  Financial Condition Covenants

  	
   

  
	
  SECTION 6.2.

  	
  Indebtedness

  	
   

  
	
  SECTION 6.3.

  	
  Liens

  	
   

  
	
  SECTION 6.4.

  	
  Fundamental Changes

  	
   

  
	
  SECTION 6.5.

  	
  Investments, Loans, Advances, Guarantees and Acquisitions

  	
   

  
	
  SECTION 6.6.

  	
  Disposition of Assets

  	
   

  
	
  SECTION 6.7.

  	
  Sale and Leaseback Transactions

  	
   

  
	
  SECTION 6.8.

  	
  Restricted Payments

  	
   

  
	
  SECTION 6.9.

  	
  Payments of Certain Indebtedness; Certain Derivative Transactions

  	
   

  
	
  SECTION 6.10.

  	
  Transactions with Affiliates

  	
   

  
	
  SECTION 6.11.

  	
  Restrictive Agreements

  	
   

  
	
  SECTION 6.12.

  	
  Amendment of Material Documents, etc

  	
   

  



 


ii





















 


	
  ARTICLE VII
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII
  The Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1.

  	
  Notices

  	
   

  
	
  SECTION 9.2.

  	
  Waivers; Amendments

  	
   

  
	
  SECTION 9.3.

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  
	
  SECTION 9.4.

  	
  Successors and Assigns; Participations and Assignments

  	
   

  
	
  SECTION 9.5.

  	
  Survival

  	
   

  
	
  SECTION 9.6.

  	
  Counterparts; Integration

  	
   

  
	
  SECTION 9.7.

  	
  Severability

  	
   

  
	
  SECTION 9.8.

  	
  Right of Setoff

  	
   

  
	
  SECTION 9.9.

  	
  Governing Law; Jurisdiction; Consent to Service of Process

  	
   

  
	
  SECTION 9.10.

  	
  Acknowledgements

  	
   

  
	
  SECTION 9.11.

  	
  Headings

  	
   

  
	
  SECTION 9.12.

  	
  Confidentiality

  	
   

  
	
  SECTION 9.13.

  	
  WAIVER OF JURY TRIAL

  	
   

  
	
  SECTION 9.14.

  	
  Release of Collateral

  	
   

  
	
  SECTION 9.15.

  	
  Judgment Currency

  	
   

  
	
  SECTION 9.16.

  	
  USA Patriot Act Notice

  	
   

  



 


iii





















 


	
  SCHEDULES:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1A

  	
  Commitments

  	
   

  
	
  1.1B

  	
  Material
  Subsidiaries

  	
   

  
	
  1.1C

  	
  Foreign
  Credit Instrument Requirements

  	
   

  
	
  1.7

  	
  Canadian
  Borrowing Provisions

  	
   

  
	
  2.5

  	
  Existing
  Letters of Credit

  	
   

  
	
  2.6(a)

  	
  Existing
  Foreign Credit Instruments

  	
   

  
	
  2.6(g)

  	
  Obligations
  of Foreign Issuing Lenders

  	
   

  
	
  2.6(i)

  	
  Procedures
  for Release of Foreign Credit Instruments

  	
   

  
	
  2.6(k)

  	
  Form of
  Agreement for Joint Signature Foreign Credit Instruments

  	
   

  
	
  2.6(q)

  	
  Daily Reports

  	
   

  
	
  3.4

  	
  Disclosed
  Matters

  	
   

  
	
  3.12

  	
  Subsidiaries

  	
   

  
	
  3.16

  	
  UCC Filing
  Jurisdictions

  	
   

  
	
  6.2

  	
  Existing
  Indebtedness

  	
   

  
	
  6.3

  	
  Existing
  Liens

  	
   

  
	
  6.5

  	
  Existing
  Investments

  	
   

  
	
  6.11

  	
  Existing
  Restrictions

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
  Form of
  Guarantee and Collateral Agreement

  	
   

  
	
  B

  	
  Form of
  Closing Certificate

  	
   

  
	
  C

  	
  Form of
  Assignment and Acceptance

  	
   

  
	
  D-1

  	
  Form of
  Legal Opinion of Fried, Frank, Harris, Shriver & Jacobson LLP

  	
   

  
	
  D-2

  	
  Form of
  Legal Opinion of General Counsel of the Parent Borrower

  	
   

  
	
  D-3

  	
  Matters to be
  Covered by Foreign Subsidiary Opinion

  	
   

  
	
  E

  	
  Form of
  Addendum

  	
   

  
	
  F

  	
  Form of
  Exemption Certificate

  	
   

  
	
  G

  	
  Form of
  Borrowing Subsidiary Agreement

  	
   

  
	
  H

  	
  Form of
  Borrowing Subsidiary Termination

  	
   

  
	
  I

  	
  Form of
  Incremental Facility Activation Notice

  	
   

  
	
  J

  	
  Form of
  New Lender Supplement

  	
   

  
	
  K

  	
  Form of
  Utilization Request

  	
   

  



 


iv





















 


CREDIT AGREEMENT, dated as of November 18, 2005,
among SPX CORPORATION, a Delaware corporation (the “Parent Borrower”),
the Foreign Subsidiary Borrowers (as hereinafter defined) party hereto, the
Lenders party hereto, THE BANK OF NOVA SCOTIA, as Syndication Agent, BANK OF
AMERICA, N.A. and WACHOVIA BANK, NATIONAL ASSOCIATION, as Documentation Agents,
THE BANK OF NOVA SCOTIA, as Canadian Administrative Agent, DEUTSCHE BANK AG, as
Foreign Trade Facility Agent, and JPMORGAN CHASE BANK, N.A., as Administrative
Agent.


 


The parties hereto hereby agree as follows:


 


ARTICLE I



DEFINITIONS


 


SECTION 1.1.                  Defined
Terms.  As used in this Agreement,
the following terms have the meanings specified below:


 


“ABR”: 
when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.


 


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


 


“Administrative Agent”:  JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder; it being understood that (a) matters
concerning Qualified Global Currency Loans (other than Canadian Dollar Loans)
will be administered by Chase Manhattan International Limited and therefore all
notices concerning such Loans will be required to be given at the London
Administrative Office, (b) matters concerning Canadian Dollar Loans will
be administered by The Bank of Nova Scotia and therefore all notices concerning
such Loans will be required to be given at the Canadian Administrative Office
and (c) matters concerning Foreign Credit Instruments will be administered
by Deutsche Bank AG (the “Foreign Trade Facility Agent”) and therefore
all notices concerning such Foreign Credit Instruments will be required to be
given at the Foreign Trade Administrative Office.


 


“Administrative Office”:  the New York Administrative Office, the
London Administrative Office, the Canadian Administrative Office or the Foreign
Trade Administrative Office, as applicable.


 


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


 


“Advance Payment Guarantee”:  a customary standby letter of credit or bank
guarantee or surety issued by a Foreign Issuing Lender in favor of customers of
the Parent Borrower or any of its Subsidiaries for the purpose of securing the
obligation to refund advance payments made by such customers in the case
contractual obligations vis-à-vis such
customers are not fulfilled.


 


“Affected Foreign Issuing Lender”:  as defined in Section 2.6(m)(i).


 





















 


“Affiliate”: 
as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such
Person.  For purposes of this definition,
“control” of a Person means the power, directly or indirectly, either to (a) vote
10% or more of the securities having ordinary voting power for the election of
directors (or persons performing similar functions) of such Person or (b) direct
or cause the direction of the management and policies of such Person, whether
by contract or otherwise.


 


 “Alternate
Base Rate”:  for any day, a rate per
annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the
Base CD Rate in effect on such day plus 1% and (c) the Federal Funds
Effective Rate in effect on such day plus 1⁄2 of 1%.  If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including the inability or failure of the Administrative Agent to
obtain sufficient quotations in respect thereof, the Alternate Base Rate shall
be determined without regard to clause (c) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist.  Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Base CD Rate or the Federal
Funds Effective Rate shall be effective from and including the effective date
of such change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate, respectively.


 


“Alternative Currency”:  any currency that is freely available, freely
transferable and freely convertible into Dollars and in which dealings in
deposits are carried on in the London interbank market, provided that
such currency is reasonably acceptable to the Administrative Agent and the
applicable Issuing Lender.


 


“Alternative Currency LC Exposure”:  at any time, the sum of (a) the Dollar
Equivalent of the aggregate undrawn and unexpired amount of all outstanding
Alternative Currency Letters of Credit at such time plus (b) the Dollar
Equivalent of the aggregate principal amount of all LC Disbursements in respect
of Alternative Currency Letters of Credit that have not yet been reimbursed at
such time.


 


“Alternative Currency Letter of Credit”:  a Letter of Credit denominated in an
Alternative Currency.


 


“Applicable Percentage”:  with respect to any Domestic Revolving
Lender, the percentage of the total Domestic Revolving Commitments represented
by such Lender’s Domestic Revolving Commitment. 
If the Domestic Revolving Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Domestic Revolving
Commitments most recently in effect, giving effect to any assignments.


 


[REMAINDER OF PAGE LEFT
BLANK INTENTIONALLY]


 


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“Applicable Rate”:  (a) with respect to any Loans (other
than Incremental Term Loans), Commitments and Foreign Credit Instruments, for
any day, the applicable rate per annum set forth below in the applicable grid,
based upon the Consolidated Leverage Ratio as of the most recent determination
date:


 


	
  Consolidated Leverage

  Ratio

  	
   

  	
  Applicable Rate for

  Eurocurrency Loans and

  Foreign Credit Instruments

  	
   

  	
  Applicable Rate for

  ABR Loans

  	
   

  	
  Commitment

  Fee Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to

  3.00 to 1.0

  	
   

  	
  1.500

  	
  %

  	
  0.500

  	
  %

  	
  0.300

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to

  2.00 to 1.0 and less than

  3.00 to 1.0

  	
   

  	
  1.250

  	
  %

  	
  0.250

  	
  %

  	
  0.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to

  1.50 to 1.0 and less than

  2.00 to 1.0

  	
   

  	
  1.000

  	
  %

  	
  0.000

  	
  %

  	
  0.200

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than or equal to

  1.00 to 1.0 and less than

  1.50 to 1.0

  	
   

  	
  0.875

  	
  %

  	
  0.000

  	
  %

  	
  0.175

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than 1.00 to 1.0

  	
   

  	
  0.750

  	
  %

  	
  0.000

  	
  %

  	
  0.150

  	
  %

  



 


and (b) for Incremental Term Loans, such per
annum rates as shall be agreed to by the Parent Borrower and the applicable
Incremental Term Lenders as shown in the applicable Incremental Facility
Activation Notice; provided that, at the time of the making of any
Incremental Term Loans, the Applicable Rate for the other Term Loans shall
automatically be increased if and to the extent required by Section 2.1(b).


 


For purposes of the foregoing, (a) the
Consolidated Leverage Ratio shall be determined as of the end of each fiscal
quarter of the Parent Borrower’s fiscal year based upon the Parent Borrower’s
consolidated financial statements delivered pursuant to Section 5.1(a) or
(b), and (b) each change in the Applicable Rate resulting from a change in
the Consolidated Leverage Ratio shall be effective during the period commencing
on and including the date of delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change; provided
that (i) subject to clause (ii) below, until the delivery pursuant to
Section 5.1(b) of the Parent Borrower’s consolidated financial
statements for the first two full fiscal quarters of the Parent Borrower
occurring after the Effective Date, the Consolidated Leverage Ratio shall be
deemed to be greater than or equal to 1.00 to 1.0 and less than 1.50 to 1.0,
and (ii) the Consolidated Leverage Ratio shall be deemed to be greater
than or equal to 3.00 to 1.0 (A) at any time that an Event of Default has
occurred and is continuing or (B) at the option of the Administrative
Agent or at the request of the Required Lenders, if the Parent Borrower fails
to deliver the consolidated financial statements required to be delivered by it
pursuant to Section 5.1(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated financial
statements are delivered.


 


“Assessment Rate”:  for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as “well-capitalized” and within supervisory subgroup “B” (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part 327
(or


 


3





















 


any successor provision) to the Federal Deposit
Insurance Corporation for insurance by such Corporation of time deposits made
in Dollars at the offices of such member in the United States; provided
that if, as a result of any change in any law, rule or regulation, it is
no longer possible to determine the Assessment Rate as aforesaid, then the
Assessment Rate shall be such annual rate as shall be determined by the
Administrative Agent to be representative of the cost of such insurance to the
Lenders.


 


“Asset Swap”: 
the exchange by the Parent Borrower or a Subsidiary of any portion of
its assets for other assets which, or Capital Stock of a Person all or
substantially all of the assets of which, are of a type used in the business of
the Parent Borrower or in a related business, or a combination of any such
assets or Capital Stock of such a Person and cash or Permitted Investments, provided
that in the case of any such exchange involving the exchange of assets having
an aggregate fair market value in excess of $100,000,000, either (a) the
Board of Directors of the Parent Borrower or (b) the chief financial
officer of the Parent Borrower shall have determined in good faith that the
aggregate fair market value of the assets and other consideration received in
connection therewith shall at least equal the aggregate fair market value of
the assets so exchanged.


 


“Assignment and Acceptance”:  an assignment and acceptance in the form of Exhibit C
or any other form approved by the Administrative Agent.


 


“Attributable Debt”:  in respect of a Sale/Leaseback Transaction,
as at the time of determination, the present value (discounted at the interest
rate assumed in making calculations in accordance with FAS 13) of the total
obligations of the Parent Borrower or the relevant Subsidiary, as lessee, for
rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended).


 


“Available Global Revolving Commitments”:  as at any date of determination with respect
to any Global Revolving Lender, an amount in Dollars equal to the excess, if
any, of (a) the amount of such Lender’s Global Revolving Commitment in
effect on such date over (b) the Global Revolving Exposure of such Lender
on such date.


 


“Available Term Loan Commitment”:  as at any date of determination with respect
to any Initial Term Loan Lender, an amount equal to the excess, if any, of (a) such
Lender’s Term Loan Commitment then in effect over (b) such Lender’s
Initial Term Loans then outstanding.


 


“Base CD Rate”: 
the sum of (a) the Three-Month Secondary CD Rate multiplied by the
Statutory Reserve Rate plus (b) the Assessment Rate.


 


“Board”: 
the Board of Governors of the Federal Reserve System of the United
States of America.


 


“Borrowers”: 
the collective reference to the Parent Borrower and the Foreign
Subsidiary Borrowers.


 


“Borrowing”: 
(a) Loans of the same Class and Type, made, converted or
continued on the same date and, in the case of Eurocurrency Loans, as to which
a single Interest Period is in effect, or (b) a Swingline Loan.


 


“Borrowing Request”:  a request by the relevant Borrower for a
Borrowing in accordance with Section 2.3.


 


4





















 


“Borrowing Subsidiary Agreement”:  a Borrowing Subsidiary
Agreement, substantially in the form of Exhibit G.


 


“Borrowing Subsidiary Termination”:  a
Borrowing Subsidiary Termination, substantially in the form of Exhibit H.


 


“Business Day”: 
any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City or (except in the case of Dollar-denominated Loans)
London are authorized or required by law to remain closed; provided that
(a) with respect to any borrowings, disbursements and payments in respect
of and calculations, interest rates and Interest Periods pertaining to
Eurocurrency Loans, such day is also a day on which banks are open for general
business in the principal financial center of the country of the relevant
currency, (b) with
respect to notices and determinations in connection with, and payments of
principal and interest on, Loans denominated in Euros, such day is also a day
on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer System (TARGET) (or, if such clearing system ceases to be operative,
such other clearing system (if any) determined by the Administrative Agent to
be a suitable replacement) is open for settlement of payment in Euros, (c) with
respect to the issuance of any Foreign Credit Instrument by a Foreign Issuing
Lender, such day is also a day on which banks are open for general business at
the Foreign Trade Administrative Office and the Lending Office of such Foreign
Issuing Lender, (d) with respect to any Utilization Reduction Notice given
by a Foreign Issuing Lender, such day is also a day on which banks are open for
general business at the Lending Office of such Foreign Issuing Lender, (e) with
respect to any calculation of the Euro Equivalent pursuant to Section 2.6(l),
the distribution of reports pursuant to Section 2.6(q) and the
determination of a Rebasing Date, such day is also a day on which banks are
open for general business at the Foreign Trade Administrative Office and (f) in
all other cases with respect to the Foreign Trade Facility, such day is also a
day on which banks are open for general business in Düsseldorf.


 


“Calculation Date”:  two Business Days prior to the last Business
Day of each calendar quarter (or any other day selected by the Administrative
Agent (each, an “Optional Calculation Date”)); provided that each
date that is on or about the date of any borrowing request or rollover request
with respect to any Qualified Global Currency Loan or of any issuance or
maturity extension of a Letter of Credit denominated in an Alternative Currency
shall also be a “Calculation Date” with respect to the relevant Qualified
Global Currency or Alternative Currency, as the case may be.


 


“Canadian Administrative
Office”:  as defined in Schedule 1.7.


 


“Canadian B/A”:  a Bankers’ Acceptance as defined in Schedule 1.7.


 


“Canadian Commitment”:  as defined in Schedule 1.7.


 


“Canadian Contract Period”:  with respect to any Canadian B/A, the term
thereof pursuant to subsection 2.3(b)(4) of Schedule 1.7.


 


“Canadian Lender”:  as defined in Schedule 1.7.


 


“Canadian Dollar Loan”:  a C$ Loan as defined in Schedule 1.7.


 


“Canadian dollars”:  lawful currency of Canada.


 


“Capital Lease Obligations”:  with respect to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted


 


5





















 


for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.


 


“Capital Stock”:  shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
and all warrants, rights or options to purchase any of the foregoing (other
than any Indebtedness convertible into Capital Stock, until such conversion).


 


“Cash Cover”: 
as defined in Section 2.6(m)(v).


 


“Cash Cover Extension”:  as defined in Section 2.6(b)(iv).


 


“Change in Law”:  (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any
Lender, Issuing Lender or Foreign Issuing Lender (or, for purposes of Section 2.17(b),
by any lending office of such Lender, Issuing Lender or Foreign Issuing Lender or
by such Person’s holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.


 


“Change of Control”:  (a) the acquisition of ownership,
directly or indirectly, beneficially, by any “person” or “group” (within the
meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
of Capital Stock representing more than 35% of either the aggregate ordinary
voting power or the aggregate equity value represented by the issued and
outstanding Capital Stock of the Parent Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of
the Parent Borrower by Persons who were neither (i) nominated by the board
of directors of the Parent Borrower nor (ii) appointed by directors so
nominated; or (c) the occurrence of a “Change of Control” (or any
comparable concept) as defined in any Subordinated Debt Documents, any LYONs
Documents or any Other Permitted Debt Documents.


 


“Class”: 
when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Domestic Revolving Loans,
Global Revolving Loans, Initial Term Loans, Incremental Term Loans or Swingline
Loans and, when used in reference to any Commitment, refers to whether such
Commitment is a Domestic Revolving Commitment, a Global Revolving Commitment, a
Foreign Trade Commitment or a Term Loan Commitment.


 


“Code”: 
the Internal Revenue Code of 1986, as amended from time to time.


 


“Collateral”: 
all property of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.


 


“Collateral Date”:  each date on which, pursuant to Section 5.1,
the Parent Borrower delivers annual financial statements in respect of its
fiscal year or quarterly financial statements in respect of the second quarter
of its fiscal year.


 


“Commercial Lifetime”:  with respect to any Foreign Credit Instrument
that does not provide for a specific expiration date, the period from the date
of issuance thereof until the expected maturity of such Foreign Credit
Instrument as indicated by the relevant Borrower in its reasonable discretion
in the relevant Utilization Request determined on the basis of the lifetime of
the underlying obligations.


 


6





















 


“Commitment”: 
a Domestic Revolving Commitment, a Global Revolving Commitment, a Term
Loan Commitment, a Foreign Trade Commitment or any combination thereof (as the
context requires).


 


“Consideration”:  in connection with any acquisition or
Investment, the consideration paid by the Parent Borrower or any of its Subsidiaries
in connection therewith (including consideration in the form of issuance of
Capital Stock of the Parent Borrower or any Subsidiary and assumption of
Indebtedness but excluding, for the purposes of any calculation made pursuant
to Section 6.5, consideration in the form of issuance of Capital Stock of
the Parent Borrower).


 


“Consolidated EBITDA”: 
for any period, Consolidated Net Income for such period plus,
without duplication and to the extent reflected as a charge in the statement of
such Consolidated Net Income for such period, the sum of (a) income tax
expense, (b) interest expense, amortization or write-off of debt discount
and debt issuance costs and commissions, discounts and other premiums, fees and
charges associated with Indebtedness, whether in connection with the
Incurrence, prepayment, redemption, termination or winddown thereof or
otherwise associated with Indebtedness (including the Loans, Foreign Credit
Instruments, letters of credit, bankers’ acceptances and net costs under
Hedging Agreements), (c) depreciation and amortization expense, (d) amortization
or write-off of intangibles (including, but not limited to, goodwill) and
organization costs, (e) any extraordinary or non-recurring non-cash
expenses or non-cash losses, provided that in the event that the Parent
Borrower or any Subsidiary makes any cash payment in respect of any such
extraordinary or non-recurring non-cash expense, such cash payment shall be
deducted from Consolidated EBITDA in the period in which such cash payment is made,
(f) losses on Dispositions of assets outside of the ordinary course of
business, (g) extraordinary or non-recurring cash charges resulting from
severance, integration and other adjustments made as a result of Permitted
Acquisitions, provided that the amounts referred to in this clause (g) reported
in any fiscal period ending after the Effective Date shall not, in the
aggregate during the term of this Agreement, exceed $40,000,000 on an after-tax
basis, and (h) non-cash compensation expenses, or other non-cash expenses
or charges, arising from the sale of stock, the granting of stock options, the
granting of stock appreciation rights and similar arrangements (including any
repricing, amendment, modification, substitution or change of any such stock,
stock option, stock appreciation rights or similar arrangements), and minus,
to the extent included in the statement of such Consolidated Net Income for
such period, (a) any extraordinary or non-recurring non-cash income or
non-cash gains and (b) gains on Dispositions of assets outside of the
ordinary course of business, all as determined on a consolidated basis; provided
that in determining Consolidated EBITDA for such period, the cumulative effect
of any change in accounting principles (effected either through cumulative
effect adjustment or a retroactive application) shall be excluded.  For the purposes of calculating Consolidated
EBITDA for any period of four consecutive fiscal quarters (each, a “Reference
Period”) pursuant to any determination of the Consolidated Leverage Ratio,
if during such Reference Period (or, in the case of pro  forma
calculations, during the period from the last day of such Reference Period to
and including the date as of which such calculation is made) the Parent
Borrower or any Subsidiary shall have made a Material Disposition or Material
Acquisition, Consolidated EBITDA for such Reference Period shall be calculated
after giving pro  forma effect thereto as if such Material
Disposition or Material Acquisition occurred on the first day of such Reference
Period (with the Reference Period for the purposes of pro  forma
calculations being the most recent period of four consecutive fiscal quarters
for which the relevant financial information is available), without giving
effect (unless permitted for pro  forma financial statements
prepared in accordance with Regulation S-X) to cost savings.  As used in this definition, “Material
Acquisition” means any acquisition of property or series of related
acquisitions of property that (a) constitutes assets comprising all or
substantially all of an operating unit of a business or constitutes all or
substantially all of the common stock of a Person and (b) involves
Consideration in excess of $25,000,000; and “Material Disposition” means any
Disposition of property or series of related Dispositions of property that (a) involves
assets comprising all or substantially all of an operating unit of a business
or constitutes all or


 


7





















 


substantially
all of the common stock of a Subsidiary and (b) yields gross proceeds to
the Parent Borrower or any of its Subsidiaries in excess of $25,000,000.


 


“Consolidated Interest Coverage Ratio”:  for any period, the ratio of (a) Consolidated
EBITDA for such period to (b) Consolidated Interest Expense for such
period.


 


“Consolidated Interest Expense”:  for any period, the sum of (a) total
cash interest expense (including that attributable to Capital Lease
Obligations) of the Parent Borrower and its Subsidiaries for such period with
respect to all outstanding Indebtedness of the Parent Borrower and its
Subsidiaries (including all commissions, discounts and other fees and charges
owed with respect to Foreign Credit Instruments, letters of credit and bankers’
acceptance financing and net cash costs or net cash income under Hedging
Agreements in respect of such Indebtedness to the extent such net cash costs or
net cash income, as the case may be, are allocable to such period in accordance
with GAAP), (b) total dividend payments made by the Parent Borrower or any
of its Subsidiaries to any Person (other than the Parent Borrower or any Wholly
Owned Subsidiary Guarantor) during such period in respect of preferred Capital
Stock and (c) to the extent not otherwise included in “interest expense” (or
any like caption) on a consolidated income statement of the Parent Borrower and
its Subsidiaries for such period, any other discounts, fees and expenses
comparable to or in the nature of interest under any Qualified Receivables
Transaction; provided that, notwithstanding the foregoing, in no event
shall any of the following constitute “Consolidated Interest Expense”:  (i) premiums or fees paid by the Parent
Borrower or its Subsidiaries in connection with the prepayment or redemption of
Indebtedness or (ii) any net cash costs or any net cash income, as the
case may be, of the Parent Borrower or its Subsidiaries in connection with
termination or winddown of any Hedging Agreement.


 


“Consolidated Leverage Ratio”:  as at the last day of any period, the ratio of
(a) Consolidated Total Debt on such day to (b) Consolidated EBITDA
for such period.


 


“Consolidated Net Income”:  for any period, the consolidated net income
(or loss) of the Parent Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary of the Parent Borrower or is merged into or
consolidated with the Parent Borrower or any of its Subsidiaries and (b) the
income (or deficit) of any Person (other than a Subsidiary of the Parent
Borrower) in which the Parent Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is actually
received by the Parent Borrower or such Subsidiary in the form of dividends or
similar distributions; provided  further that, solely for purposes
of calculating Consolidated Net Income pursuant to clause (e)(i)(B)(II) of Section 6.8,
there shall be excluded (i) (A) any gain or loss realized upon the
sale or other disposition of any property, plant or equipment of the Parent
Borrower or its consolidated Subsidiaries (including pursuant to any
Sale/Leaseback Transaction) which is not sold or otherwise Disposed of in the
ordinary course of business, (B) any gain or loss recorded in connection
with the designation of a discontinued operation (exclusive of its operating
income or loss) and (C) any gain or loss realized upon the sale or other
disposition of any Capital Stock of any Person, (ii) any extraordinary
gain or loss, (iii) the cumulative effect of a change in accounting
principles (effected either through cumulative effect adjustment or a
retroactive application), (iv) any restructuring or special charges
appearing on the face of the statement of operations of the Parent Borrower, (v) any
non-cash compensation charges, or other non-cash expenses or charges, arising
from the grant of or issuance or repricing of stock, stock options or other
equity-based awards or any amendment, modification, substitution or change of
any such stock, stock options or other equity-based awards and (vi) any
increase in the cost of sales or other write-offs or other increased costs
resulting from purchase accounting in relation to any acquisitions occurring
after October 1, 2004, net of taxes.


 


8





















 


“Consolidated Total Debt”:  at any date, the sum of (a) the
aggregate principal amount of all Indebtedness of the Parent Borrower and its
Subsidiaries at such date (excluding the face amount of undrawn letters of
credit and other Foreign Credit Instruments), determined on a consolidated
basis in accordance with GAAP, calculated net of the amount of cash and cash
equivalents, in excess of $50,000,000, that would (in conformity with GAAP) be
set forth on a consolidated balance sheet of the Parent Borrower and its
Subsidiaries for such date, provided that, for purposes of Section 6.8(e),
“Consolidated Total Debt” shall be calculated without netting such cash and
cash equivalents, plus (b) without duplication of amounts included
in clause (a) above, an amount equal to the aggregate amount of
Receivables Transaction Attributed Indebtedness associated with any Qualified
Receivables Transaction which is outstanding at such date.


 


“Contractual Obligation”:  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”: 
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.


 


“Counter-Guarantee”:  a guarantee payable on first demand by a
Foreign Issuing Lender as security for a Foreign Credit Instrument issued by an
Indirect Foreign Issuing Lender, a Fronting Lender or an Affected Foreign
Issuing Lender.


 


“Daily Report”: 
as defined in Section 2.6(q).


 


“DB Direct Internet Agreement”:  the db direct internet agreement, dated the
date hereof, between the Parent Borrower and the Foreign Trade Facility Agent
regarding the use of the db-direct internet communication facility, as such
agreement may be amended, modified or otherwise supplemented from time to time.


 


“Default”: 
any event or condition which upon notice, lapse of time or both would,
unless cured or waived, become an Event of Default (including, in any event, a “Default”
under and as defined in the Senior Note Indenture, any Subordinated Debt
Documents or any Other Permitted Debt Documents).


 


“Determination Date”:  each date that is two Business Days after any
Calculation Date or Optional Calculation Date.


 


“Disclosed Matters”:  the matters disclosed in Schedule 3.4.


 


“Dispensable Requirements”:  the requirements under Part B of Schedule 1.1C.


 


“Disposition”: 
with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof.  “Dispose” and “Disposed of”
have meanings correlative thereto.


 


“Documentation Agents”:  the collective reference to Bank of America,
N.A. and Wachovia Bank, National Association, in their capacity as
documentation agents.


 


“Dollar Equivalent”:  on any date of determination, (a) for
the purposes of determining compliance with Article VI or the existence of
an Event of Default under Article VII (other than for the


 


9





















 


purpose of determining amounts outstanding hereunder,
in which case clause (b) below shall govern), with respect to any amount
denominated in a currency other than Dollars, the equivalent in Dollars of such
amount, determined in good faith by the Parent Borrower in a manner consistent
with the way such amount is or would be reflected on the Parent Borrower’s
audited consolidated financial statements for the fiscal year in which such
determination is made, (b) with respect to any amount hereunder
denominated in an Alternative Currency or a Qualified Global Currency, the
amount of Dollars that may be purchased with such amount of such currency at
the Exchange Rate (determined as of the most recent Calculation Date) with
respect to such currency on such date and (c) for the purposes of
determining the amount of the Foreign Credit Instruments and any Foreign Trade
Exposure that is denominated in a currency other than Dollars, the amount of
Dollars that may be purchased with the Euro Equivalent for such Foreign Credit
Instruments or Foreign Trade Exposure, as applicable (as determined in
accordance with Section 2.6(l)), at the Exchange Rate (determined as of
the most recent Calculation Date) with respect to Euros on such date.


 


“Dollars” or “$” refers to lawful money
of the United States of America.


 


“Domestic Revolving Availability Period”:  the period from and including the Effective
Date to but excluding the earlier of the Domestic Revolving Maturity Date and
the date of termination of the Domestic Revolving Commitments.


 


“Domestic Revolving Commitment”:  with respect to each Lender, the commitment,
if any, of such Lender to make Domestic Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, as such
commitment may be changed from time to time pursuant to this Agreement.  The amount of each Lender’s Domestic
Revolving Commitment as of the Effective Date is set forth on Schedule 1.1A,
or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Domestic Revolving Commitment, as applicable.  The aggregate amount of the Domestic
Revolving Commitments is $350,000,000 as of the Effective Date.


 


“Domestic Revolving Exposure”:  with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender’s Domestic Revolving
Loans and its LC Exposure and Swingline Exposure at such time.


 


“Domestic Revolving
Facility”:  as defined in the
definition of Facility.


 


“Domestic Revolving Lender”:  a Lender with a Domestic Revolving Commitment
or with Domestic Revolving Exposure.


 


“Domestic Revolving Loan”:  a Loan made pursuant to Section 2.1(a)(ii).


 


“Domestic Revolving Maturity Date”:  November 18, 2010.


 


“Domestic Subsidiary”:  any Subsidiary other than a Foreign
Subsidiary.


 


“Effective Date”:  the date on which the conditions precedent
set forth in Section 4.1 shall be satisfied, which date is November 18,
2005.


 


“Emerson JV”: 
EGS LLC.


 


“EMU”: 
Economic and Monetary Union as contemplated in the Treaty.


 


10





















 


“Environmental Laws”:  all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.


 


“Environmental Liability”:  any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Parent Borrower or any Subsidiary
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.


 


“EONIA”: 
the European Overnight Index Average for deposits in Euros as calculated
on a daily basis under the supervision of the European Network of Central Banks
and, as at the date of this Agreement, broadcast on the immediately following day on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer System (TARGET) (or, if such
clearing system ceases to be operative, such other clearing system (if any)
is operating, on page EONIA of the Reuters Monitor Money Rates Service.


 


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


 


“ERISA Affiliate”:  any trade or business (whether or not
incorporated) that, together with the Parent Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.


 


“ERISA Event”: 
(a) any “reportable event”, as defined in Section 4043 of
ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412
of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with respect
to any Plan; (d) the incurrence by the Parent Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Parent Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Parent Borrower or any of
its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Parent Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Parent Borrower or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.


 


“Euro”: 
the single currency of Participating Member States introduced in
accordance with the provisions of Article 109(1)4 of the Treaty and, in
respect of all payments to be made under this Agreement in Euros, means
immediately available, freely transferable funds.


 


11





















 


“Eurocurrency”: 
when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.


 


“Euro Equivalent”:  with respect to Foreign Credit Instruments or
sums denominated in Euros, the Face Amount or the amount of such sum and, with
respect to Foreign Credit Instruments or sums not denominated in Euros, such
Face Amount or other sum as converted into Euros in accordance with the conversion
rules set forth under Section 2.6(l).


 


“Event of Default”:  as defined in Article VII.


 


“Excess Amount”:  as defined in Section 2.6(m)(i).


 


“Exchange Rate”:  on any day, with respect to any Alternative
Currency or Qualified Global Currency, the rate at which such Alternative
Currency or Qualified Global Currency may be exchanged into Dollars, as set
forth at approximately 11:00 a.m., London time, on such day on the
applicable Reuters World Spot Page.  In
the event that any such rate does not appear on any Reuters World Spot Page,
the Exchange Rate shall be determined by reference to such other publicly
available service for displaying exchange rates reasonably selected by the
Administrative Agent in consultation with the Parent Borrower for such purpose
or, at the discretion of the Administrative Agent in consultation with the
Parent Borrower, such Exchange Rate shall instead be the arithmetic average of
the spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such Alternative Currency
are then being conducted, at or about 11:00 a.m., local time, on such day
for the purchase of the applicable Alternative Currency for delivery two
Business Days later, provided that, if at the time of any such
determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any other reasonable method it deems appropriate
to determine such rate, and such determination shall be presumed correct absent
manifest error.


 


“Excluded Taxes”:  with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of any Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America, or
by the jurisdiction 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 of America or any similar tax imposed by any other
jurisdiction in which any Borrower is located, (c) in the case of any
Borrowing by the Parent Borrower or any Foreign Subsidiary Borrower (other than
any Foreign Subsidiary Borrower that becomes a Borrower hereunder after the
Effective Date), with respect to any Lender (other than an assignee pursuant to
a request by a Borrower under Section 2.21(b)), any withholding tax
imposed by the jurisdiction in which such Borrower is located that is (i) imposed
on amounts payable to such Lender at the time such Lender becomes a party to
this Agreement or (ii) attributable to such Lender’s failure to comply
with Section 2.19(e) or 2.19(i), except to the extent that such
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 any
Borrower with respect to such withholding tax pursuant to Section 2.19(a) and
(d) withholding taxes imposed other than as a result of an addition of a
Foreign Subsidiary Borrower after the Effective Date or a Change in Law (it
being understood that for this purpose the term Change in Law shall not include
final Treasury regulations under Section 1441 of the Code becoming
effective).


 


“Existing Credit Agreement”:  the Credit Agreement, dated as of October 6,
1998, as amended and restated through February 12, 2004, and as further
amended through the date hereof, among the Parent Borrower, the several banks
and other financial institutions or entities parties thereto, the


 


12





















 


agents parties thereto and JPMorgan Chase Bank, N.A.
(formerly The Chase Manhattan Bank), as administrative agent.


 


“Existing Foreign Credit Instruments”:  any outstanding standby letter of credit,
bank guarantee or surety which (a) is issued by a Foreign Issuing Lender
and listed on Schedule 2.6(a) or (b) would meet the criteria to
qualify as a Warranty Guarantee, a Performance Guarantee, an Advance Payment
Guarantee, a Tender Guarantee or a General Purpose Guarantee if it had been
issued hereunder by a Foreign Issuing Lender under bilateral facilities
maintained with the Parent Borrower or any of its Subsidiaries and designated,
by written notice from the Parent Borrower and such Foreign Issuing Lender to
the Foreign Trade Facility Agent, to constitute an Existing Foreign Credit
Instrument.


 


“Existing Letters of Credit”:  as defined in Section 2.5(a).


 


“Extended Foreign Trade Maturity Date”:  as defined in Section 2.6(b)(i).


 


“Extending Lenders”:  as defined in Section 2.6(b)(i).


 


“Extension Acceptance Notice”:  as defined in Section 2.6(b)(i).


 


“Extension Date”:  as defined in Section 2.6(b)(i).


 


“Extension Notice”:  as defined in Section 2.6(b)(i).


 


“Face Amount”: 
with respect to any Foreign Credit Instrument issued by a Foreign
Issuing Lender, the principal face amount of such Foreign Credit Instrument in
Euros or, as the case may be, any other currency in which such Foreign Credit
Instrument has been issued, such amount representing the maximum liability of
such Lender under such Foreign Credit Instrument which may only be increased by
fees and interest payable with respect to the secured obligation if, and to the
extent, so provided for under the terms of such Foreign Credit Instrument.


 


“Facility”: 
each of (a) the Term Loan Commitments and the Initial Term Loans
made hereunder (the “Term Loan Facility”), (b) the Domestic
Revolving Commitments and the extensions of credit made thereunder (the “Domestic
Revolving Facility”), (c) the Global Revolving Commitments and the
Global Revolving Loans made thereunder (the “Global Revolving Facility”),
(d) the Foreign Trade Commitments and the extensions of credit made
thereunder (the “Foreign Trade Facility” and, together with the Domestic
Revolving Facility and the Global Revolving Facility, the “Revolving
Facilities”) and (e) the Incremental Term Loans (the “Incremental
Term Loan Facility”).


 


“Federal Funds Effective Rate”:  for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average (rounded upwards, if necessary,
to the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.


 


“Financial Officer”:  the chief financial officer, principal
accounting officer, treasurer or controller of the Parent Borrower.


 


“Foreign Credit Commission”:  as defined in Section 2.6(n)(i).


 


13





















 


“Foreign Credit Commitment Fee”:  as defined in Section 2.6(n)(ii).


 


“Foreign Credit Disbursement”:  as defined in Section 2.6(h)(i).


 


“Foreign Credit Fronting Fee”:  as defined in Section 2.6(n)(iv).


 


“Foreign Credit Handling Fee”:  as defined in Section 2.6(n)(iii).


 


“Foreign Credit Instrument”:  a Warranty Guarantee, a Performance
Guarantee, an Advance Payment Guarantee, a Tender Guarantee, a General Purpose
Guarantee or a Counter-Guarantee, including (subject to the provisions of Section 2.6(a))
any Existing Foreign Credit Instrument.


 


“Foreign Credit Instrument Requirements”:  the Dispensable Requirements and the
Mandatory Requirements.


 


“Foreign Credit Instrument Termination Date”:  as defined in Section 2.6(i)(i).


 


“Foreign Credit Reimbursement Obligation”:  the obligation of each relevant Borrower to
reimburse the relevant Foreign Issuing Lender pursuant to Section 2.6(h) for
Foreign Credit Disbursements.


 


“Foreign Issuing Lender”:  a Lender with a Foreign Trade Commitment or
with Foreign Trade Exposure.


 


“Foreign Subsidiary”:  any Subsidiary (a) that is organized
under the laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia or (b) that is a Foreign
Subsidiary Holdco.


 


“Foreign Subsidiary
Borrower”:  (a) with respect to
the Global Revolving Facility, any Foreign Subsidiary of the Parent Borrower
designated as a Foreign Subsidiary Borrower by the Parent Borrower pursuant to Section 2.23(a) that
has not ceased to be a Foreign Subsidiary Borrower pursuant to such Section and
(b) with respect to the Foreign Trade Facility, any Foreign Subsidiary of
the Parent Borrower designated as a Foreign Subsidiary Borrower by the Parent
Borrower pursuant to Section 2.23(b) that has not ceased to be a
Foreign Subsidiary Borrower pursuant to such Section.


 


“Foreign Subsidiary Holdco”:  any Domestic Subsidiary that has no material
assets other than the Capital Stock of one or more Foreign Subsidiaries, and other
assets relating to an ownership interest in any such Capital Stock.


 


“Foreign Subsidiary Opinion”:  with respect to any Foreign Subsidiary
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Administrative Agent and the Lenders covering the matters set
forth on Exhibit D-3, with such assumptions, qualifications and deviations
therefrom as the Administrative Agent shall approve (such approval not to be
unreasonably withheld).


 


 “Foreign
Trade Administrative Office”:  the
office of the Foreign Trade Facility Agent located at Trade Center, Königsalle
45 – 47, 40212 Düsseldorf, Germany, or such other office as may be designated
by the Foreign Trade Facility Agent by written notice to the Parent Borrower,
the Administrative Agent and the Lenders.


 


14





















 


“Foreign Trade Commitment”:  with respect to each Lender, the commitment,
if any, of such Lender to issue Foreign Credit Instruments, as such commitment
may be changed from time to time pursuant to this Agreement.  The amount of each Lender’s Foreign Trade
Commitment as of the Effective Date is set forth on Schedule 1.1A, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Foreign Trade Commitment, as applicable. 
The aggregate principal amount of the Foreign Trade Commitments as of
the Effective Date is €361,887,500.00.


 


“Foreign Trade Exposure”:  with respect to any Lender at any time, the
Euro Equivalent (or, for purposes of any determination of Required Lenders, the
Dollar Equivalent) of the sum of (a) the aggregate outstanding amount of
such Lender’s obligations in respect of Foreign Credit Instruments at such time
plus (b) the aggregate amount of all Foreign Credit Disbursements
made by such Lender that have not yet been reimbursed by or on behalf of the
relevant Borrower at such time.


 


“Foreign Trade Facility”:  as defined in the definition of Facility.


 


“Foreign Trade Facility Agent”:  as defined in the definition of
Administrative Agent.


 


“Foreign Trade Maturity Date”:  November 18, 2010, as such date may be
extended pursuant to Section 2.6(b).


 


“Fronted Foreign Credit Instrument”:  a Foreign Credit Instrument that is issued or
continued under one or more Counter-Guarantees of a Fronting Guarantor.


 


“Fronting Cover”:  as defined in Section 2.6(m)(i).


 


“Fronting Guarantor”:  as defined in Section 2.6(j)(ii).


 


“Fronting Lender”:  any Lender that has issued a Fronted Foreign
Credit Instrument.


 


“GAAP”: 
generally accepted accounting principles in the United States of
America.


 


“General Purpose Guarantee”:  a customary standby letter of credit or bank
guarantee or surety issued by a Foreign Issuing Lender for the purpose of
securing any obligations of the Parent Borrower or any of its Subsidiaries,
other than (a) Advance Payment Guarantees, (b) Warranty Guarantees, (c) Performance
Guarantees, (d) Tender Guarantees and (e) any other Foreign Credit
Instrument issued to secure obligations to financial creditors, but including, inter alia, customs guarantees, guarantees for rental
payments and for the benefit of tax authorities and guarantees used as
collateral in connection with court proceedings.


 


“Global Revolving
Availability Period”:  the period
from and including the Effective Date to but excluding the earlier of the Global Revolving Maturity Date and the date
of termination of the Global Revolving Commitments.


 


“Global Revolving
Facility”:  as defined in the
definition of Facility.


 


“Global Revolving
Commitment”:  with respect to each
Lender, the commitment, if any, of such Lender to make Global Revolving Loans
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender’s Global Revolving Exposure hereunder, as such commitment may be
changed from time to time pursuant to this Agreement.  The amount of each Lender’s Global Revolving
Commitment as of the Effective Date is set forth on Schedule 1.1A, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Global Revolving


 


15





















 


Commitment, as
applicable.  The aggregate amount of the
Global Revolving Commitments is $100,000,000 as of the Effective Date.


 


“Global Revolving
Exposure”:  with respect to any
Lender at any time, the sum of (a) the aggregate outstanding principal amount of such Lender’s Global
Revolving Loans at such time that are denominated in Dollars plus (b) the
Dollar Equivalent at such time of the aggregate outstanding principal amount of
such Lender’s Global Revolving Loans at such time that are denominated in
Qualified Global Currencies.


 


“Global Revolving Lender”:  a Lender with a Global Revolving Commitment
or with Global Revolving Exposure.


 


“Global Revolving Loan”:  a Loan made pursuant to Section 2.1(a)(iii),
including Canadian Dollar Loans and any Canadian B/A accepted in accordance
with Schedule 1.7.


 


“Global Revolving Maturity Date”:  November 18, 2010.


 


“Governmental Authority”:  any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government (including, without limitation, any European central bank
or other similar agency, authority or regulatory body), any securities exchange
and any self-regulatory organization (including the National Association of
Insurance Commissioners).


 


“Guarantee: 
with respect to any Person (the “guarantor”), any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly,
and including any obligation of the guarantor, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply
funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account
party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business, purchaser or customer arrangements in the ordinary
course of business, Standard Receivables Undertakings or “comfort” letters
delivered to auditors in connection with statutory audits.


 


“Guarantee and Collateral Agreement”:  the Guarantee and Collateral Agreement to be
executed and delivered by the Parent Borrower and the Subsidiary Guarantors in
favor of the Administrative Agent, in substantially the form of Exhibit A,
as the same may be amended, supplemented or otherwise modified from time to
time.


 


“Hazardous Materials”:  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.


 


16





















 


“Hedging Agreement”:  any interest rate agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or
currency exchange rate or commodity price swap or hedging arrangement or
option.


 


“Incremental Facility
Activation Notice”:  a notice
substantially in the form of Exhibit I.


 


“Incremental Term Lenders”:  each Lender with an outstanding Incremental
Term Loan.


 


“Incremental Term Loan
Facility”:  as defined in the
definition of Facility.


 


“Incremental Term Loan
Maturity Date”:  with respect to the
Incremental Term Loans to be made pursuant to any Incremental Facility
Activation Notice, the maturity date specified in such Incremental Facility
Activation Notice, which date shall be a date no earlier than the final
maturity of the other Term Loans.


 


“Incremental Term Loans”:  as defined in Section 2.1(b).


 


“Incur”: 
as defined in Section 6.2.  “Incurrence”
and “Incurred” shall have correlative meanings.


 


“Indebtedness”: 
with respect to any Person, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person (other than current
trade payables Incurred in the ordinary course of business and payable in
accordance with customary practices), (d) all obligations of such Person
in respect of the deferred purchase price of property or services (other than (i) current
trade payables or liabilities for deferred payment for services to employees
and former employees, in each case Incurred in the ordinary course of business
and payable in accordance with customary practices and (ii) unsecured
Payables Programs in respect of current trade payables Incurred in the ordinary
course of business, so long as the aggregate amount at any time outstanding
that is owed in respect of such Payables Programs does not exceed an amount
equal to the current trade payables so financed plus interest (or equivalent),
yield, indemnities, fees and expenses in connection therewith), (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (i) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances, (j)
all preferred and/or redeemable Capital Stock of any Subsidiary of such Person
that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
date that is six months after the latest maturity date for Loans hereunder, (k)
Receivables Transaction Attributed Indebtedness and (l) for the purposes of Section 6.2
only, all obligations of such Person in respect of Hedging Agreements.  The Indebtedness of any Person (i) shall
include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor and (ii) shall
exclude customer deposits in the ordinary course of business.


 


“Indemnified Taxes”:  Taxes other than Excluded Taxes.


 


17





















 


“Indirect Foreign Credit Instrument”:  as defined in Section 2.6(g)(iv).


 


“Indirect Foreign Issuing Lender”:  as defined in Section 2.6(g)(iv).


 


“Information Memorandum”:  the Confidential Information Memorandum,
dated October 2005, relating to the Parent Borrower and the Facilities.


 


“Initial Term Loan”:  a Loan made pursuant to Section 2.1(a)(i).


 


“Initial Term Loan Lender”:  a Lender with a Term Loan Commitment or with
an outstanding Initial Term Loan.


 


“Interest Election Request”:  a request by the relevant Borrower to convert
or continue a Revolving Borrowing or Term Loan Borrowing in accordance with Section 2.8.


 


“Interest Payment Date”:  (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and,
in the case of a Eurocurrency Borrowing with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months’ duration after the first day of such
Interest Period, and (c) with respect to any Swingline Loan, the day that
such Loan is required to be repaid.


 


“Interest Period”:  with respect to any Eurocurrency Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the relevant Borrower may elect; provided,
that (a) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business
Day, and (b) any Interest Period that commences on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest
Period.  For purposes hereof, the date of
a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.


 


“Invalid First Demand Feature”:  as defined in Section 2.6(h)(iv).


 


“Investments”: 
as defined in Section 6.5.


 


“Issuing Lender”:  as the context may require, (a) JPMorgan
Chase Bank, N.A., with respect to Letters of Credit issued by it, (b) any
other Domestic Revolving Lender that becomes an Issuing Lender pursuant to Section 2.5(l),
with respect to Letters of Credit issued by it, and (c) any Domestic
Revolving Lender that has issued an Existing Letter of Credit, with respect to
such Existing Letter of Credit and, in each case its successors in such
capacity as provided in Section 2.5(i). 
Any Issuing Lender may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of such Issuing Lender, in which
case the term “Issuing Lender” shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.


 


“Joint Foreign Issuing Lenders”:  as defined in Section 2.6(k)(i).


 


“Joint Foreign Trade Facility Agent”:  as defined in Section 2.6(k)(ii).


 


18





















 


“Joint Signature Foreign Credit Instrument”:  a Foreign Credit Instrument issued by two or
more Foreign Issuing Lenders acting as several debtors in accordance with Section 2.6(k).


 


“Judgment Currency”:  as defined in Section 9.15(a).


 


“Judgment Currency Conversion Rate”:  as defined in Section 9.15(a).


 


“Latest Notification Day”:  as defined in Section 2.6(g)(i).


 


“LC Disbursement”:  a payment made by the applicable Issuing
Lender pursuant to a Letter of Credit.


 


“LC Exposure”: 
at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit that are denominated in Dollars at such time plus
(b) the aggregate amount of all LC Disbursements that are denominated in
Dollars that have not yet been reimbursed by or on behalf of the relevant
Borrower at such time plus (c) the Alternative Currency LC Exposure
at such time.  The LC Exposure of any
Domestic Revolving Lender at any time shall be its Applicable Percentage of the
total LC Exposure at such time.


 


“Lender Affiliate”:  (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or
an Affiliate of such Lender and (b) with respect to any Lender that is a
fund which invests in bank loans and similar extensions of credit, any other
fund that invests in bank loans and similar extensions of credit and is managed
or advised by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.


 


“Lenders”: 
the Persons listed on Schedule 1.1A and any other Person that shall
have become a party hereto pursuant to an Assignment and Acceptance, other than
any such Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance.  Unless the context otherwise
requires, the term “Lenders” includes the Swingline Lender, each Issuing Lender
and each Foreign Issuing Lender.


 


“Lending Office”:  with respect to any Foreign Issuing Lender,
the office designated by such Lender by written notice to the Foreign Trade
Facility Agent, the Administrative Agent and the relevant Borrower.


 


“Letter of Credit”:  any letter of credit (other than a Foreign
Credit Instrument) issued pursuant to this Agreement, including the Existing
Letters of Credit.


 


“LIBO Rate”: 
with respect to any Eurocurrency Borrowing, for any Interest Period, the
rate appearing on the relevant page of the Telerate screen (or any
successor to or substitute for such screen, providing rate quotations comparable
to those currently provided on such page of such screen, as determined by
the Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to deposits in Dollars or the relevant Qualified
Global Currency, as the case may be, in the relevant interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits in such currency
with a maturity comparable to such Interest Period.  If such rate is not available at such time
for any reason, and in all cases in the case of sterling-denominated Loans, the
“LIBO Rate” with respect to such Eurocurrency Borrowing for such
Interest Period shall be the rate at which deposits in the relevant currency of
$5,000,000 (or the appropriate equivalent thereof) and for a maturity
comparable to such Interest Period are offered by the principal London office
of the Administrative Agent in immediately available funds in


 


19





















 


the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period plus in each case,
the cost imputed to the Lenders of sterling-denominated Loans of compliance
with the mandatory liquid assets requirements of the Bank of England during
such Interest Period, as such cost is reasonably determined by the
Administrative Agent.


 


“Lien”: 
with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of
such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase
option, call or similar right of a third party with respect to such securities.


 


“Loan”: 
any loan made by any Lender pursuant to this Agreement.


 


“Loan Documents”:  this Agreement, the Security Documents, each
Borrowing Subsidiary Agreement and each Borrowing Subsidiary Termination.


 


“Loan Parties”: 
the Borrowers and the Subsidiary Guarantors.


 


“London Administrative
Office”:  the Administrative Agent’s
office located at 125 London Wall, London, or such other office in London as
may be designated by the Administrative Agent by written notice to the Parent
Borrower and the Lenders.


 


“LYONs”: 
the collective reference to (a) the LYONs described in (i) the
offering memorandum dated March 10, 2001 and (ii) the offering
memorandum dated May 9, 2001 (collectively, the “LYONs Offering
Memoranda”) and (b) the notes issued upon conversion of the LYONs upon
the occurrence of a Tax Event (as defined in the LYONs Documents) on the terms
described in the LYONs Offering Memoranda.


 


“LYONs Contingent Interest”:  the payment of contingent interest on or
after February 1, 2006, as described in the Summary section of the
LYONs Offering Memoranda under the caption “Contingent Interest”.


 


“LYONs Documents”:  all indentures, instruments, agreements and
other documents evidencing or governing the LYONs or providing for any
Guarantee or other right in respect thereof.


 


“LYONs Offering Memoranda”:  as defined in the definition of LYONs.


 


“LYONs Put/Conversion Rights”:  the collective reference to (a) the
ability of holders of the LYONs to require purchase of the LYONs through the
payment of cash or issuance of common stock or a combination of cash and common
stock on specified scheduled dates, as described in the Summary section of
the LYONs Offering Memoranda under the caption “Purchase of the LYONs at the
Option of the Holder” (or on substantially similar terms on later dates) and (b) the
ability of the holders of the LYONs to surrender LYONs for conversion into
common stock of the Parent Borrower if specific conditions are satisfied, as
described in the Summary section of the LYONs Offering Memoranda under the
caption “Conversion Rights” (or on substantially similar terms on later dates).


 


“Majority Facility Lenders”:  with respect to any Facility, the holders of
more than 50% of the sum of (a) the undrawn Commitments under such
Facility and (b) the aggregate unpaid principal amount of the Term Loans
or Revolving Exposure, as the case may be, outstanding under such Facility.


 


20





















 


“Mandatory Requirements”:  the requirements under Part A of Schedule 1.1C.


 


“Material Adverse Effect”:  a material adverse effect on (a) the
business, property, operations or condition (financial or otherwise) of the
Parent Borrower and its Subsidiaries taken as a whole, (b) the ability of
the Loan Parties, taken as a whole, to perform any of their obligations under
any Loan Document or (c) the rights of or benefits available to the
Lenders under any Loan Document.


 


“Material Indebtedness”:  Indebtedness (other than the Loans, Letters
of Credit and Foreign Credit Instruments), or obligations in respect of one or
more Hedging Agreements, of any one or more of the Parent Borrower and its
Subsidiaries in an aggregate principal amount exceeding $75,000,000.  For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of the Parent Borrower
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Parent Borrower or such Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.


 


“Material Subsidiary”:  (a) any Subsidiary listed on Schedule 1.1B
as a Material Subsidiary and (b) any other Subsidiary of the Parent
Borrower created or acquired after the Effective Date that, together with its
Subsidiaries, has aggregate assets (excluding assets that would be eliminated
upon consolidation in accordance with GAAP), at the time of determination, in
excess of $50,000,000.


 


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


 


“Multiemployer Plan”:  a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.


 


“Net Proceeds”: 
with respect to any event (a) the cash proceeds received in respect
of such event including (i) any cash received in respect of any non-cash
proceeds, but only as and when received, (ii) in the case of a casualty,
insurance proceeds, and (iii) in the case of a casualty or a condemnation
or similar event, condemnation awards and similar payments, net of (b) the
sum of (i) all reasonable fees and out-of-pocket expenses paid by the
Parent Borrower and the Subsidiaries to third parties (other than Affiliates) in
connection with such event, (ii) in the case of a Disposition of an asset
(including pursuant to a condemnation or similar proceeding), the amount of all
payments required to be made by the Parent Borrower and the Subsidiaries as a
result of such event to repay Indebtedness (other than Loans) or to pay any
other Contractual Obligation secured by such asset or otherwise subject to
mandatory prepayment or repayment as a result of such event, and (iii) the
amount of all taxes paid (or reasonably estimated to be payable) by the Parent
Borrower and the Subsidiaries (including all taxes paid in connection with the
repatriation of the Net Proceeds of a Disposition), and the amount of any
reserves established by the Parent Borrower and the Subsidiaries to fund contingent
liabilities reasonably estimated to be payable, in each case that are directly
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of the Parent Borrower).


 


“New Lender Supplement”:  a supplement substantially in the form of Exhibit J.


 


“New York Administrative
Office”:  the Administrative Agent’s
office located at 270 Park Avenue, New York, New York, or such other office in
New York City as may be designated by the Administrative Agent by written notice
to the Parent Borrower and the Lenders.


 


“Non-Extending Lender Maturity Date”:  as defined in Section 2.6(b)(iii).


 


“Non-Extending Lenders”:  as defined in Section 2.6(b)(i).


 


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“Notice Date”: 
as defined in Section 2.6(b)(i).


 


“Obligation Currency”:  as defined in Section 9.15(a).


 


“Obligations”: 
the collective reference to the unpaid principal of and interest (and
premium, if any) on the Loans, Reimbursement Obligations and Foreign Credit
Reimbursement Obligations and all other obligations and liabilities of the
Borrowers (including, without limitation, interest accruing at the then
applicable rate provided herein after the maturity of the Loans, Reimbursement
Obligations and Foreign Credit Reimbursement Obligations and interest accruing
at the then applicable rate provided herein after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to the Administrative
Agent or any Lender (or, in the case of any Hedging Agreement or Specified Cash
Management Agreement, any Lender or any Affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter Incurred, which may arise under, out of, or in connection
with, this Agreement, the other Loan Documents, any Hedging Agreement or
Specified Cash Management Agreement with any Lender or any Affiliate of any
Lender or any other document made, delivered or given in connection with any of
the foregoing, in each case whether on account of principal, interest, premium,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Administrative Agent or to the Lenders that are required to be paid by any
Borrower pursuant to the terms of any of the foregoing agreements).


 


“Optional Calculation Date”:  as defined in the definition
of Calculation Date.


 


“Other Permitted Debt”:  any unsecured Indebtedness Incurred by the
Parent Borrower as permitted by Section 6.2(l).


 


“Other Permitted Debt
Documents”:  all indentures,
instruments, agreements and other documents evidencing or governing Other
Permitted Debt or providing for any Guarantee or other right in respect
thereof.


 


“Other Taxes”: 
any and all present or future stamp or documentary taxes or any other
excise charges or similar levies arising from the execution, delivery or
enforcement of any Loan Document.


 


“Parent Borrower”:  as defined in the preamble.


 


“Participant”: 
as defined in Section 9.4(e).


 


“Participating Member
State”:  each state so described in
any EMU legislation.


 


“Payables Programs”:  payables programs established to enable the
Parent Borrower or any Subsidiary to purchase goods and services from vendors.


 


“PBGC”: 
the Pension Benefit Guaranty Corporation referred to and defined in
ERISA and any successor entity performing similar functions.


 


“Performance Guarantee”:  a customary standby letter of credit or bank
guarantee or surety issued by a Foreign Issuing Lender in favor of customers of
the Parent Borrower or any of its Subsidiaries for the purpose of securing the
fulfillment of such parties’ performance obligations under any construction,
service or similar agreement.


 


22





















 


“Permitted Acquisition”:  any acquisition by the Parent Borrower or any
Subsidiary of all or substantially all of the Capital Stock of, or all or
substantially all of the assets of, or of a business, unit or division of, any
Person; provided that (a) the Parent Borrower shall be in
compliance, on a pro  forma basis after giving effect to such
acquisition, with the covenants contained in Section 6.1, in each case
recomputed as at the last day of the most recently ended fiscal quarter of the
Parent Borrower for which the relevant information is available as if such
acquisition had occurred on the first day of each relevant period for testing
such compliance (as demonstrated, in the case of any acquisition for which the
aggregate Consideration is greater than or equal to $100,000,000, in a
certificate of a Financial Officer delivered to the Administrative Agent prior
to the consummation of such acquisition), (b) no Default or Event of
Default shall have occurred and be continuing, or would occur after giving
effect to such acquisition, (c) substantially all of the property so
acquired (including substantially all of the property of any Person whose
Capital Stock is directly or indirectly acquired) is useful in the business of
the general type conducted by the Parent Borrower and its Subsidiaries on the
Effective Date or businesses reasonably related thereto, (d) the Capital
Stock so acquired (other than any Capital Stock that is not required by Section 5.11
to become Collateral) shall constitute and become Collateral, (e) if the
Ratings Event shall have occurred, substantially all of the property other than
Capital Stock so acquired (including substantially all of the property of any
Person whose Capital Stock is directly or indirectly acquired when such Person
becomes a direct or indirect Wholly Owned Subsidiary of the Parent Borrower in
accordance with clause (f), below, but excluding any assets to the extent such
assets are not required by Section 5.11 to become Collateral) shall
constitute and become Collateral, (f) any Person whose Capital Stock is
directly or indirectly acquired shall be, after giving effect to such
acquisition, a majority owned Subsidiary and within ninety (90) days of such
acquisition shall be a direct or indirect Wholly Owned Subsidiary of the Parent
Borrower and (g) any such acquisition shall have been approved by the
Board of Directors or comparable governing body of the relevant Person (unless
such relevant Person is a majority owned Subsidiary prior to such acquisition).


 


“Permitted Currencies”:  Dollars, pounds sterling and Euros.


 


“Permitted Encumbrances”:  (a) Liens imposed by law for taxes that
are not yet due or are being contested in compliance with Section 5.5; (b) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 90 days or are being contested in
compliance with Section 5.5; (c) pledges and deposits made in the
ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws or regulations; (d) deposits
to secure the performance of bids, trade contracts, leases, statutory
obligations, surety, indemnity, release and appeal bonds, performance or
warranty bonds and other obligations of a like nature, and guarantees thereof,
in each case in the ordinary course of business; (e) deposits securing
liabilities to insurance carriers under insurance or self-insurance
arrangements; (f) judgment Liens not giving rise to an Event of Default so
long as such Liens are adequately bonded; (g) banker’s Liens, rights of
set-off or similar rights and remedies as to deposit accounts or other funds
maintained with a depositary institution, provided that (i) such
deposit account is not a dedicated cash collateral account and is not subject
to restrictions against access by the Parent Borrower or any Subsidiary in
excess of those set forth by regulations promulgated by the Board or other
applicable Governmental Authority and (ii) such deposit account is not
intended by the Parent Borrower or any Subsidiary to provide collateral to the
depositary institution; (h) Liens arising from Uniform Commercial Code
financing statement filings regarding operating leases or consignments entered
into by the Parent Borrower and any Subsidiary in the ordinary course of business;
(i) customary restrictions imposed on the transfer of copyrighted or
patented materials or other intellectual property and customary provisions in
agreements that restrict the assignment of such agreements or any rights
thereunder; (j) easements, leases, subleases, ground leases, zoning
restrictions, building codes, rights-of-way, minor defects or irregularities in
title and similar encumbrances on real property imposed by law or arising in
the ordinary course of business that do not


 


23





















 


secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Parent Borrower or any Subsidiary; and (k) customary
unperfected Liens Incurred in the ordinary course of business that secure
current trade payables Incurred in the ordinary course of business and payable
in accordance with customary practices, provided that such Liens
encumber only the assets related to such current trade payables.  Notwithstanding the foregoing, the term “Permitted
Encumbrances” shall not include any Lien securing Indebtedness.


 


“Permitted Investments”:  (a) direct obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency or
instrumentality thereof to the extent such obligations are backed by the full
faith and credit of the United States of America), in each case maturing within
one year from the date of acquisition thereof; (b) investments in
commercial paper maturing within one year from the date of acquisition thereof
and having, at such date of acquisition, credit ratings from S&P or from
Moody’s of at least “A-2” or “P-2”, respectively; (c) investments in
certificates of deposit, banker’s acceptances, overnight bank deposits,
eurodollar time deposits and time deposits maturing within one year from the
date of acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States of America or any
State thereof which has a combined capital and surplus and undivided profits of
not less than $500,000,000 or,
in the case of Foreign Subsidiaries, any local office of any commercial bank
organized under the laws of the relevant local jurisdiction or any OECD country
or any political subdivision thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000 and cash pooling
arrangements among Foreign Subsidiaries (sometimes intermediated by a
commercial bank); (d) marketable general obligations issued by any State
of the United States of America or any political subdivision of any such State
or any public instrumentality thereof maturing within one year from the date of
acquisition and, at the time of acquisition, having a credit rating of “A” or
better from either S&P or Moody’s; (e) repurchase agreements with a
term of not more than 30 days for securities described in clause (a), (c) or
(d) above and entered into with a financial institution satisfying the
criteria described in clause (c) above; (f) interests in any
investment company or money market fund which invests substantially all of its
assets in instruments of the type specified in clauses (a) through (e) above;
and (g) in the case of Foreign Subsidiaries (other than any Foreign
Subsidiary Holdco), substantially similar Investments to those set forth in
clauses (a) through (f) above denominated in foreign currencies, provided
that references to the United States of America (or any agency, instrumentality
or State thereof) shall be deemed to mean foreign countries having a sovereign
rating of “A” or better from either S&P or Moody’s.


 


“Permitted Maturity”:  with respect to any Foreign Credit
Instrument, a maximum tenor of 60 months following the respective issuance
date; provided that (a) not more than 331/3% of the total Foreign Trade Commitments may be used for
Foreign Credit Instruments with a tenor of 48 months or more and (b) no
Foreign Credit Instrument may have a maximum tenor that is more than 24 months
after the then effective Foreign Trade Maturity Date.  For purposes of this definition, “tenor”
shall mean the period remaining from time to time until the maturity of the
relevant Foreign Credit Instrument determined on the basis of the expiration
date specified in the relevant Foreign Credit Instrument in accordance with Section 2.6(c)(iv),
or, in the absence of such specific expiration date, the remaining Commercial
Lifetime.


 


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


 


“Plan”: 
any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the
Code or Section 302 of ERISA, and in respect


 


24





















 


of which the Parent Borrower or any ERISA Affiliate is
(or, if such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of ERISA.


 


“Prepayment Event”:


 


(a)                                 any
Disposition of property or series of related Dispositions of property
(excluding any such Disposition permitted by paragraph (a), (b), (c) or (e) of
Section 6.6) that yields aggregate gross proceeds to the Parent Borrower
or any of the Subsidiary Guarantors (valued at the initial principal amount
thereof in the case of non-cash proceeds consisting of notes or other debt
securities and valued at fair market value in the case of other non-cash
proceeds) in excess of $10,000,000; or


 


(b)                                 any
casualty or other insured damage to, or any taking under power of eminent
domain or by condemnation or similar proceeding of, any property of the Parent
Borrower or any Subsidiary Guarantor that yields Net Proceeds in excess of
$10,000,000; or


 


(c)                                  the
Incurrence by the Parent Borrower or any Subsidiary of any Indebtedness, other
than Indebtedness permitted by Section 6.2.


 


“Prime Rate”: 
the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.


 


“Qualified Foreign Global Currency”:  any Qualified Global Currency other than
Dollars borrowed in the United States of America.


 


“Qualified Global
Currency”:  (a) pounds
sterling, Euros, Dollars (borrowed in the United States of America) and
Canadian dollars (borrowed in London), (b) any other eurocurrency
designated by the Parent Borrower with the consent of the Administrative Agent
and each Global Revolving Lender and (c) with respect to Loans made by
Canadian Lenders, Canadian dollars (borrowed in Canada).


 


“Qualified Global
Currency Borrowing”:  any
Borrowing comprised of Qualified Global Currency Loans.


 


“Qualified Global
Currency Loan”:  any
Loan denominated in a Qualified Global Currency.


 


“Qualified Receivables
Transaction”:  any transaction or
series of transactions that may be entered into by the Parent Borrower or any
Subsidiary pursuant to which the Parent Borrower or any Subsidiary may sell,
convey or otherwise transfer to a Receivables Entity or any other Person, or
may grant a security interest in, any Receivables (whether now existing or
arising in the future) of the Parent Borrower or any Subsidiary, and any assets
related thereto including, without limitation, all collateral securing such
Receivables, all contracts and all guarantees or other obligations in respect
of such Receivables, the proceeds of such Receivables and other assets which
are customarily transferred, or in respect of which security interests are
customarily granted, in connection with sales, factoring or securitizations
involving Receivables.


 


“Ratings Event”:  as defined in Section 5.11(b).


 


25










 













 


“Rebasing Date”:  as defined in Section 2.6(m)(i).


 


“Receivable”:  a right to receive payment arising from a
sale or lease of goods or the performance of services by a Person pursuant to
an arrangement with another Person pursuant to which such other Person is
obligated to pay for goods or services under terms that permit the purchase of
such goods and services on credit and shall include, in any event, any items of
property that would be classified as an “account”, “chattel paper”, a “payment
intangible” or an “instrument” under the Uniform Commercial Code as in effect
in the State of New York and any “supporting obligations” (as so defined) of
such items.


 


“Receivables Entity”:  either (a) any Subsidiary or (b) another
Person to which the Parent Borrower or any Subsidiary transfers Receivables and
related assets, in either case which engages in no activities other than in
connection with the financing of Receivables:


 


(i)                                     no portion of the
Indebtedness or any other obligations (contingent or otherwise) of which:


 


(A)                              is guaranteed by the
Parent Borrower or any Subsidiary (excluding guarantees of obligations (other
than the principal of, and interest on, Indebtedness) pursuant to Standard
Receivables Undertakings);


 


(B)                                is recourse to or
obligates the Parent Borrower or any Subsidiary in any way other than pursuant
to Standard Receivables Undertakings; or


 


(C)                                subjects any property
or asset of the Parent Borrower or any Subsidiary, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to
Standard Receivables Undertakings;


 


(ii)                                  with which neither
the Parent Borrower nor any Subsidiary has any material contract, agreement,
arrangement or understanding (except in connection with a purchase money note
or Qualified Receivables Transaction permitted by Section 6.6(c)) other
than (A) on terms, taken as a whole, no less favorable to the Parent
Borrower or such Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Parent Borrower or (B) for the
payment of fees in the ordinary course of business in connection with servicing
Receivables; and


 


(iii)                               to which neither the
Parent Borrower nor any Subsidiary has any obligation to maintain or preserve
such entity’s financial condition or cause such entity to achieve certain
levels of operating results.


 


“Receivables Transaction Attributed Indebtedness”:  (a) in the case of any Receivables
securitization (including any Qualified Receivables Transaction, but excluding
any sale or factoring of Receivables), the amount of obligations outstanding
under the legal documents entered into as part of such Receivables
securitization on any date of determination that would be characterized as
principal if such Receivables securitization were structured as a secured
lending transaction rather than as a purchase and (b) in the case of any
sale or factoring of Receivables, the cash purchase price paid by the buyer in
connection with its purchase of Receivables (including any bills of exchange) less
the amount of collections received in respect of such Receivables and paid to
such buyer, excluding any amounts applied to purchase fees or discount or in
the nature of interest, in each case as determined in good faith and in a
consistent and commercially reasonable manner by the Parent Borrower (provided
that if such method of calculation is not applicable to such sale or factoring
of Receivables, the amount of


 


26





















 


Receivables Transaction Attributed Indebtedness
associated therewith shall be determined in a manner mutually acceptable to the
Parent Borrower and the Administrative Agent).


 


“Register” has the meaning set forth
in Section 9.4(c).


 


“Reimbursement
Obligation”:  the obligation of each
relevant Borrower to reimburse the applicable Issuing Lender pursuant to Section 2.5
for amounts drawn under Letters of Credit.


 


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


 


“Release
Date”:  as defined in Section 9.14.


 


“Required
Lenders”:  at any time, Lenders
having Revolving Exposures, Term Loans and unused Commitments representing at
least 51% of the sum of the total Revolving Exposures, outstanding Term Loans
and unused Commitments at such time.


 


“Requirement
of Law”:  as to any Person, the
Certificate of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.


 


“Reset Date”:  as defined in Section 1.5(a).


 


“Restricted Payment”:  (a) any dividend or other distribution
(whether in cash, securities or other property) with respect to any Capital
Stock of the Parent Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Capital Stock of the Parent Borrower or any
Subsidiary or any option, warrant or other right to acquire any such Capital
Stock of the Parent Borrower or any Subsidiary and (b) any payment or
other distribution (whether in cash, securities or other property) of or in
respect of principal of or interest on the LYONs, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation, conversion or termination of the LYONs.


 


“Revolving Commitments”:  the
aggregate of the Domestic Revolving Commitments, the Global Revolving
Commitments and the Foreign Trade Commitments.


 


“Revolving Exposure”:  with respect to any Lender at any time, the
sum of such Lender’s Domestic Revolving Exposure, Global Revolving Exposure and
Foreign Trade Exposure.


 


“Revolving Facility”:  as defined in the definition of Facility.


 


“Revolving Lenders”: 
Domestic Revolving Lenders, Global Revolving Lenders and Foreign Issuing
Lenders.


 


“Revolving Loans”: 
Domestic Revolving Loans and Global Revolving Loans.


 


“Risk
Management Subsidiary”:  any
Subsidiary (a) that is formed for the purpose of better controlling the
costs associated with certain post-retirement benefit obligations, workers’


 


27





















 


compensation claims, severance,
deferred compensation, key man life insurance reserves, environmental
liabilities and other liabilities, (b) that is a Subsidiary Guarantor and
a “Grantor” for the purposes of the Guarantee and Collateral Agreement and (c) all
of the Capital Stock of which, to the extent owned by the Parent Borrower or
any Domestic Subsidiary, is pledged as Collateral under the Guarantee and
Collateral Agreement.


 


“S&P”: 
Standard & Poor’s.


 


“Sale/Leaseback
Transaction”:  as defined in Section 6.7.


 


“Security Documents”:  the Guarantee and Collateral Agreement and
any other security documents granting a Lien on any property of any Person to
secure the obligations of any Loan Party under any Loan Document.


 


“Senior Note Indenture”:  the Indenture entered into by the Parent
Borrower in connection with the issuance of the Senior Notes, together with all
supplemental indentures, instruments and other agreements entered into by the
Parent Borrower in connection therewith so long as the foregoing do not
increase the aggregate principal amount of Senior Notes outstanding thereunder.


 


“Senior Notes”: 
the collective reference to (a) the 7.5% senior notes due 2013 of
the Parent Borrower having an aggregate initial principal amount of $500,000,000
issued on or about December 27, 2002 and (b) the 6.25% senior notes
due 2011 of the Parent Borrower having an aggregate initial principal amount of
$300,000,000 issued on or about June 15, 2003; provided that the
aggregate outstanding principal amount of Senior Notes shall not exceed
$50,000,000.


 


“Specified Cash Management Agreement”:  any agreement providing for treasury,
depositary or cash management services, including in connection with any
automated clearing house transfers of funds or any similar transactions between
the Parent Borrower or any Subsidiary Guarantor and any Lender or Affiliate
thereof, which has been designated by the Parent Borrower, by notice to the
Administrative Agent not later than 90 days after the execution and delivery of
such agreement by the Parent Borrower or such Subsidiary Guarantor, as a “Specified
Cash Management Agreement”.


 


“Specified
Indebtedness”:  (a) any
Indebtedness Incurred as permitted by Section 6.2(g), (h) or (k), and
(b) any secured Indebtedness Incurred as permitted by Section 6.2(j)
or (p).


 


“Standard
Receivables Undertakings”: 
representations, warranties, covenants and indemnities entered into by
the Parent Borrower or any Subsidiary which are reasonably customary in sale,
factoring or securitization of Receivables transactions.


 


“Statutory
Reserve Rate”:  a fraction (expressed
as a decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board or by any other Governmental Authority,
domestic or foreign, with jurisdiction over the Administrative Agent or any
Lender (including any branch, Affiliate or other funding office thereof making
or holding a Loan) (a) with respect to the Base CD Rate, for new
negotiable nonpersonal time deposits in Dollars of over $100,000 with
maturities approximately equal to three months and (b) with respect to the
Adjusted LIBO Rate applicable to any Borrowing, for any category of liabilities
which includes deposits by reference to which the Adjusted LIBO Rate in respect
of such Borrowing is determined.  Such
reserve percentages shall include those imposed pursuant to Regulation D
of the Board.  Eurocurrency Loans shall
be deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be


 


28





















 


available from time to time to
any Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.


 


“Subordinated
Debt”:  any Indebtedness Incurred by
the Parent Borrower as permitted by Section 6.2(b).


 


“Subordinated Debt Documents”:  all indentures, instruments, agreements and
other documents evidencing or governing the Subordinated Debt or providing for
any Guarantee or other right in respect thereof.


 


“Subsidiary”: 
with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent’s consolidated financial statements if such financial statements
were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or,
in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is,
as of such date, otherwise Controlled, by the parent or one or more
Subsidiaries of the parent or by the parent and one or more Subsidiaries of the
parent.  Unless otherwise qualified, all
references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Parent Borrower.


 


“Subsidiary Guarantor”:  any Subsidiary that has guaranteed the
Obligations pursuant to the Guarantee and Collateral Agreement.  For the avoidance of doubt, no Foreign
Subsidiary, Subsidiary of a Foreign Subsidiary, or Receivables Entity shall be
required to become a Subsidiary Guarantor.


 


“Swingline Exposure”:  at any time, the aggregate principal amount
of all Swingline Loans outstanding at such time.  The Swingline Exposure of any Lender at any
time shall be its Applicable Percentage of the total Swingline Exposure at such
time.


 


“Swingline Lender”:  JPMorgan Chase Bank, N.A., in its capacity as
lender of Swingline Loans hereunder.


 


“Swingline
Loan”:  a Loan made pursuant to Section 2.4.


 


“Syndication Agent”:  The Bank of Nova Scotia, in its capacity as
syndication agent.


 


“Taxes”: 
any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.


 


“Tender Guarantee”:  a customary standby letter of credit or bank
guarantee or surety issued by a Foreign Issuing Lender in favor of (actual or
prospective) counterparties of the Parent Borrower or any of its Subsidiaries
for the purpose of securing the obligations assumed under any tender, for
construction work or other services.


 


“Term Loan Commitment”:  with respect to each Lender, the commitment,
if any, of such Lender to make an Initial Term Loan to the Parent Borrower
hereunder during the Term Loan Commitment Period in a principal amount not to
exceed the amount set forth under the heading “Term Loan Commitment” opposite
such Lender’s name on Schedule 1.1A hereto or in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time


 


29





















 


to time pursuant to the terms hereof.  The aggregate principal amount of the Lenders’
Term Loan Commitments is $750,000,000 as of the Effective Date.


 


“Term Loan Commitment Period”:  the period from and including the Effective
Date to and including the earlier of (a) the date that is six months after
the Effective Date and (b) the date of termination of the Term Loan
Commitments.


 


“Term Loan Facility”:  as defined in the definition of Facility.


 


“Term Loan Maturity Date”:  November 18, 2010.


 


“Term Loans”: 
Initial Term Loans and Incremental Term Loans.


 


“Three-Month Secondary CD Rate”:  for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such day
(or, if such day is not a Business Day, the next preceding Business Day) by the
Board through the public information telephone line of the Federal Reserve Bank
of New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York
City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.


 


“Total
Consolidated Assets”:  as at any date
of determination, the total assets of the Parent Borrower and its consolidated
Subsidiaries, determined in accordance with GAAP, as of the last day of the
fiscal quarter ended immediately prior to the date of such determination for
which financial statements have been (or are required pursuant to Section 5.1(a) or
(b) to have been) delivered to the Administrative Agent pursuant to Section 5.1(a) or
(b).


 


“Total Domestic Exposure”:  at any time, the sum of the
total Domestic Revolving Exposures.


 


“Total Foreign Trade
Exposure”:  at any time, the sum of
the total Foreign Trade Exposures.


 


“Total Global Exposure”: at any time, the sum of the total Global
Revolving Exposures.


 


“Transactions”: 
the execution, delivery and performance by each Loan Party of the Loan
Documents to which it is to be a party, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit and Foreign Credit
Instruments hereunder.


 


“Treaty”:  the Treaty establishing the European Economic
Community, being the Treaty of Rome of March 25, 1957 as amended by the
Single European Act 1986 and the Maastricht Treaty (which was signed on February 7,
1992 and came into force on November 1, 1993) and as may from time to time
be further amended, supplemented or otherwise modified.


 


“Type”: 
when used in reference to any Loan or Borrowing, refers to the rate by
reference to which interest on such Loan, or on the Loans comprising such
Borrowing, is determined and
the currency in which such Loan, or the Loans comprising such Borrowing, are
denominated.  For purposes hereof, “rate”
shall include the Adjusted LIBO Rate, the Alternate Base Rate and any interest
rate


 


30





















 


applicable to Canadian
Dollar Loans, and “currency” shall include Dollars and any Qualified Global
Currency permitted hereunder.


 


“UCC”:  for any jurisdiction, the Uniform Commercial
Code applicable in such jurisdiction.


 


“Utilization
Date”:  as defined in Section 2.6(g)(i).


 


“Utilization
Reduction Notice”:  as defined in Section 2.6(i)(i).


 


“Utilization
Request”:  as defined in Section 2.6(c).


 


“Warranty Guarantee”:  a customary standby letter of credit or bank
guarantee or surety issued by a Foreign Issuing Lender in favor of customers of
the Parent Borrower or any of its Subsidiaries for the purpose of securing any
warranty obligations of the Parent Borrower or such Subsidiary.


 


“Wholly Owned Domestic Subsidiary”:  any Domestic Subsidiary that is a Wholly
Owned Subsidiary of the Parent Borrower.


 


“Wholly Owned Subsidiary”:  as to any Person, any other Person all of the
Capital Stock of which (other than directors’ qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.


 


“Wholly
Owned Subsidiary Guarantor”:  any
Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Parent Borrower, provided
that, in any event, each Risk Management Subsidiary shall be deemed to
constitute a Wholly Owned Subsidiary Guarantor for the purposes of Sections 6.2
and 6.5.


 


“Withdrawal
Liability”:  liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E
of Title IV of ERISA.


 


SECTION 1.2.                       Classification
of Loans and Borrowings.  For
purposes of this Agreement, Loans may be classified and referred to by Class (e.g.,
a “Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”) or
by Class and Type (e.g., a “Eurocurrency Revolving Loan”).  Borrowings also may be classified and
referred to by Class (e.g., a “Revolving Borrowing”) or by Type
(e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency
Revolving Borrowing”).


 


SECTION 1.3.                       Terms
Generally.  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 (a) any
definition of or reference to any agreement, instrument or other document
herein 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), (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement, (e) the words “asset” and


 


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“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 and (f) where
applicable, any amount (including, without limitation, minimum borrowing,
prepayment or repayment amounts) expressed in Dollars shall, when referring to
any currency other than Dollars, be deemed to mean an amount of such currency
having a Dollar Equivalent approximately equal to such amount.


 


SECTION 1.4.                       Accounting
Terms; GAAP.  Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that if at any time after September 30, 2005 there shall occur any change
in respect of GAAP from that used in the preparation of audited financial
statements referred to in Section 5.1 in a manner that would have a
material effect on any matter under Article VI, the Parent Borrower and
the Administrative Agent will, within five Business Days of notice from the
Administrative Agent or the Parent Borrower, as the case may be, to that
effect, commence, and continue in good faith, negotiations with a view towards
making appropriate amendments to the provisions hereof acceptable to the
Required Lenders, to reflect as nearly as possible the effect of Article VI
as in effect on the date hereof; provided  further that, until
such notice shall have been withdrawn or the relevant provisions amended in
accordance herewith, Article VI shall be interpreted on the basis of GAAP
as in effect and applied immediately before such change shall have become
effective.


 


SECTION 1.5.                       Exchange
Rates.  (a)  Not later than 1:00 p.m.,
New York City time, on each Calculation Date, the Administrative Agent shall (i) determine
the Exchange Rate as of such Calculation Date to be used for calculating the
Dollar Equivalent amounts of each currency in which a Global Revolving Loan,
Alternative Currency Letter of Credit or unreimbursed LC Disbursement is
denominated and (ii) give notice thereof to the Parent Borrower.  The Exchange Rates so determined shall become
effective on the first Business Day immediately following the relevant
Calculation Date (a “Reset Date”), shall remain effective until the next
succeeding Reset Date and shall for all purposes of this Agreement (other than
for the purpose of converting into Dollars, under Sections 2.5(d), (e), (h),
(j) and (k) and 2.14(b), the obligations of the Borrowers and the Domestic
Revolving Lenders in respect of LC Disbursements that have not been reimbursed
when due) be the Exchange Rates employed in converting any amounts between the
applicable currencies.


 


(b)  Not
later than 5:00 p.m., New York City time, on each Reset Date, the
Administrative Agent shall (i) determine the Global Revolving Exposure or
the Alternative Currency LC Exposure, as the case may be, on such date (after
giving effect to any Global Revolving Loans to be made or  any Alternative Currency Letters of Credit to
be issued, renewed, extended or terminated in connection with such
determination) and (ii) notify the Parent Borrower and, if applicable,
each Issuing Lender of the results of such determination.


 


SECTION 1.6.                       Currency
Conversion.  (a)  If more than
one currency or currency unit are at the same time recognized by the central
bank of any country as the lawful currency of that country, then (i) any
reference in the Loan Documents to, and any obligations arising under the Loan
Documents in, the currency of that country shall be translated into or paid in
the currency or currency unit of that country designated by the Administrative
Agent and (ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange recognized by the central
bank for conversion of that currency or currency unit into the other, rounded
up or down by the Administrative Agent as it deems appropriate.


 


(b)  If a
change in any currency of a country occurs, this Agreement shall be amended
(and each party hereto agrees to enter into any supplemental agreement
necessary to effect any such amendment) to the extent that the Administrative
Agent specifies to be necessary to reflect the change in


 


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currency and to put the Lenders
in the same position, so far as possible, that they would have been in if no
change in currency had occurred.


 


SECTION 1.7.                       Canadian
Borrowing Provisions.  Certain
borrowing and administrative provisions applicable to Canadian Dollar Loans are
set forth in Schedule 1.7 and, in the event of any inconsistency between Schedule 1.7
and the other provisions of this Agreement as they relate to Canadian Dollar
Loans, Schedule 1.7 shall govern.


 


ARTICLE II



THE CREDITS


 


SECTION 2.1.                       Commitments;
Incremental Facilities.  (a) 
Subject to the terms and conditions set forth herein, each relevant Lender
agrees (i) to severally make Initial Term Loans in Dollars to the Parent
Borrower from time to time during the Term Loan Commitment Period in an
aggregate principal amount not exceeding the Term Loan Commitment of such
Lender, provided that, at 1:00 p.m., New York City time, on the
last day of the Term Loan Commitment Period, the Available Term Loan Commitment
of each Lender, if any, automatically shall be reduced to zero, (ii) to
severally make Domestic Revolving Loans in Dollars to the Parent Borrower from
time to time during the Domestic Revolving Availability Period in an aggregate
principal amount that will not result in such Lender’s Domestic Revolving
Exposure exceeding such Lender’s Domestic Revolving Commitment and (iii) to
severally make Global Revolving Loans in Dollars or one or more Qualified
Global Currencies (as specified in the Borrowing Requests with respect thereto)
to any Borrower from time to time during the Global Revolving Availability
Period in an aggregate principal amount that will not result in (A) such
Lender’s Global Revolving Exposure exceeding such Lender’s Global Revolving
Commitment or (B) the aggregate outstanding principal amount of such
Lender’s Canadian Dollar Loans at such time exceeding such Lender’s Canadian
Commitment.  Within the foregoing limits
and subject to the terms and conditions set forth herein, the Parent Borrower
may borrow, prepay and reborrow Domestic Revolving Loans and any Borrower may
borrow, prepay and reborrow Global Revolving Loans.  Amounts repaid in respect of Term Loans may
not be reborrowed.


 


(b)  So
long as no Default or Event of Default (including, on a pro  forma
basis, pursuant to Section 6.1) shall be in existence or would be caused
thereby, the Parent Borrower and any one or more Lenders may from time to time
agree that such Lenders (or any other additional bank, financial institution or
other entity which becomes a Lender pursuant to this Section 2.1(b)) shall
add an additional term loan facility (the loans thereunder, the “Incremental
Term Loans”) and/or increase the Commitments in respect of any of the
Facilities by executing and delivering to the Administrative Agent an
Incremental Facility Activation Notice specifying (i) the amount of such
Incremental Term Loans and/or Commitment increase, and (ii) in the case of
any Incremental Term Loans, (A) the applicable Incremental Term Loan
Maturity Date, (B) the amortization schedule for such Incremental
Term Loans, which shall comply with Section 2.11(b) and (C) the
Applicable Rate for such Incremental Term Loans; provided that the
aggregate principal amount of borrowings of Incremental Term Loans and
Commitment increases shall not exceed $250,000,000; provided, further,
that, notwithstanding the foregoing proviso, the aggregate principal amount of
the Foreign Trade Commitments may be further increased by an amount not to
exceed €21,287,500.00.  If the Applicable
Rate for such Incremental Term Loans (which, for such purposes only, shall be
deemed to include all upfront or similar fees or original issue discount
payable to all Lenders providing such Incremental Loans, with such fees or
discount being equated to the interest rates in a manner reasonably determined
by the Administrative Agent in consultation with the Parent Borrower based on
an assumed four-year life to maturity) exceeds the Applicable Rate for the
other Term Loans by more than 0.50%, the Applicable Rate relating to such other
Term Loans shall be adjusted to be equal to the Applicable Rate for such
Incremental Term Loans (which, for such purposes only, shall be


 


33





















 


deemed to include all upfront
or similar fees or original issue discount payable to all Lenders providing
such Incremental Loans, calculated in the manner provided above) minus
0.50%.  Except for pricing, amortization
and maturity, the terms of the Incremental Term Loans will be the same as the
terms of the Initial Term Loans.  In the
case of any increase in the Commitments under any Facility (other than any
Incremental Term Loan Facility), the terms applicable to such increased
Commitments and the Loans thereunder shall be the same as the terms applicable
to the Facility being so increased.  In
the case of any increase of the Foreign Trade Facility, any new Lender added in
connection with such increase must be reasonably acceptable to the
Administrative Agent and the Foreign Trade Facility Agent.  No Lender shall have any obligation to
participate in any Incremental Term Loan or other increase described in this
paragraph unless it agrees to do so in its sole discretion.  Any additional bank, financial institution or
other entity which, with the consent of the Borrower and the Administrative
Agent (which consent shall not be unreasonably withheld), elects to become a “Lender”
under this Agreement in connection with the making of any Incremental Term Loan
or the making of any additional Commitment shall execute a New Lender
Supplement, whereupon such bank, financial institution or other entity shall
become a Lender for all purposes and to the same extent as if originally a
party hereto and shall be bound by and entitled to the benefits of this
Agreement.


 


SECTION 2.2.                       Loans
and Borrowings.  (a)  Each Loan
(other than a Swingline Loan) shall be made as part of a Borrowing consisting
of Loans of the same Class and Type made by the Lenders ratably in
accordance with their respective Commitments of the applicable Class; provided
that (i) each Global Revolving Loan (other than Canadian Dollar Loans)
shall be made by the Global Revolving Lenders ratably in accordance with their
respective Available Global Revolving Commitments and (ii) each Canadian
Dollar Loan shall be made by the Canadian Lenders ratably in accordance with
their respective Canadian Commitments. 
The failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder.


 


(b)  Subject
to Section 2.16, (i) each Revolving Borrowing denominated in Dollars
and each Term Loan Borrowing shall be comprised entirely of ABR Loans or
Eurocurrency Loans as the relevant Borrower may request in accordance herewith
and (ii) each Qualified Global Currency Borrowing shall be comprised
entirely of Eurocurrency Loans.  Each
Swingline Loan shall be an ABR Loan. 
Each Lender at its option may make any Eurocurrency Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan; provided
that any exercise of such option shall not affect the obligation of the
relevant Borrower to repay such Loan in accordance with the terms of this
Agreement.


 


(c)  At
the commencement of each Interest Period for any Eurocurrency Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $10,000,000. 
At the time that each ABR Revolving Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and
not less than $5,000,000; provided that (i) an ABR Domestic
Revolving Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the total Domestic Revolving Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section 2.5(e) and
(ii) an ABR Global Revolving Borrowing may be in an aggregate amount that
is equal to the entire unused balance of the total Global Revolving
Commitments.  Each Swingline Loan shall
be in an amount that is an integral multiple of $500,000 and not less than
$1,000,000.  No more than 20 Eurocurrency
Borrowings may be outstanding at any one time under the Facilities other than
the Global Revolving Facility.  Unless
otherwise agreed by the Administrative Agent, no more than 10 Eurocurrency
Borrowings may be outstanding at any one time under the Global Revolving
Facility.


 


(d)  Notwithstanding
any other provision of this Agreement, a Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with


 


34





















 


respect thereto would end after
the Domestic Revolving Maturity Date, Global Revolving Maturity Date, Term Loan
Maturity Date or Incremental Term Loan Maturity Date, as applicable.


 


SECTION 2.3.                       Requests
for Borrowings.  To request a
Revolving Borrowing or a Term Loan Borrowing, the relevant Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of a
Eurocurrency Borrowing, not later than 11:00 a.m., New York City time
(or if the request is delivered in London, 11:00 a.m., London time), three
Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of the proposed Borrowing; provided
that any such notice of an ABR Domestic Revolving Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.5(e) may be given
not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing.  Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by
delivery to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and (x) signed by the Parent Borrower and,
in the case of Borrowings by a Foreign Subsidiary Borrower, such Foreign
Subsidiary Borrower or (y) in the case of Borrowings by a Foreign Subsidiary
Borrower, signed by the Parent Borrower or such Foreign Subsidiary Borrower, as
specified by the Parent Borrower by prior written notice to the Administrative
Agent.  Each such telephonic and written
Borrowing Request shall specify the following information in compliance with Section 2.2:
(i) the Borrower requesting such Borrowing (and be signed on behalf of
such Borrower); (ii) the Class and Type of the requested Borrowing; (iii) the
aggregate amount of such Borrowing; (iv) the date of such Borrowing, which
shall be a Business Day; (v) in the case of a Eurocurrency Borrowing, the
initial Interest Period to be applicable thereto; (vi) the location and
number of the relevant Borrower’s account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.7; and (vii) the
currency of such Borrowing (which shall be in Dollars in the case of Term
Loans, Domestic Revolving Loans and Swingline Loans, and otherwise shall be in
Dollars or a Qualified Global Currency). 
If no election as to the currency of a Global Revolving Borrowing is
specified in any such notice, then the requested Borrowing shall be denominated
in Dollars.  If no election as to the
Type of Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing if denominated in Dollars or a Eurocurrency Borrowing if denominated
in a Qualified Global Currency.  If no
Interest Period is specified with respect to any requested Eurocurrency
Borrowing, then the relevant Borrower shall be deemed to have selected an
Interest Period of one month’s duration. 
Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each relevant Lender of the
details thereof and of the amount of such Lender’s Loan to be made as part of
the requested Borrowing.


 


SECTION 2.4.                       Swingline
Loans.  (a)  Subject to the
terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Parent Borrower from time to time during the Domestic
Revolving Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of
outstanding Swingline Loans exceeding $40,000,000 or (ii) the sum of the
total Domestic Revolving Exposures exceeding the total Domestic Revolving
Commitments; provided that the Swingline Lender shall not be required to
make a Swingline Loan to refinance an outstanding Swingline Loan.  Within the foregoing limits and subject to
the terms and conditions set forth herein, the Parent Borrower may borrow,
prepay and reborrow Swingline Loans.


 


(b)  To
request a Swingline Loan, the Parent Borrower shall notify the Administrative
Agent of such request by telephone (confirmed by telecopy promptly thereafter),
not later than 12:00 noon, New York City time, on the day of a proposed
Swingline Loan.  Each such notice shall
be irrevocable and shall specify the requested date (which shall be a Business
Day) and amount of the requested Swingline Loan.  The Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Parent Borrower.  The Swingline Lender shall make each Swingline
Loan available to the Parent Borrower by means of a credit to the general
deposit account of the Parent


 


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Borrower with the Swingline
Lender (or, in the case of a Swingline Loan made to finance the reimbursement
of an LC Disbursement as provided in Section 2.5(e), by remittance to the
applicable Issuing Lender) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.


 


(c)  The
Swingline Lender may by written notice given to the Administrative Agent not
later than 12:00 noon, New York City time, on any Business Day require the
Domestic Revolving Lenders to acquire participations on such Business Day in
all or a portion of the Swingline Loans outstanding.  Such notice shall specify the aggregate
amount of Swingline Loans in which Domestic Revolving Lenders will
participate.  Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each Domestic
Revolving Lender, specifying in such notice such Lender’s Applicable Percentage
of such Swingline Loans.  Each Domestic
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account
of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline
Loans.  Each Domestic Revolving Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or Event of Default or reduction or termination of
the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. 
Each Domestic Revolving Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.7 with respect to Loans made by such
Lender (and Section 2.7 shall apply, mutatis  mutandis, to
the payment obligations of the Domestic Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Domestic Revolving Lenders.  The Administrative Agent shall notify the
Parent Borrower of any participations in any Swingline Loan acquired pursuant
to this paragraph, and thereafter payments in respect of such Swingline Loan
shall be made to the Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender
from the Parent Borrower (or other party on behalf of the Parent Borrower) in
respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Domestic
Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the Parent Borrower of its
obligation to repay such Swingline Loan.


 


SECTION 2.5.                       Letters
of Credit.  (a)  General.  Subject to the terms and conditions set forth
herein, any Borrower may request the issuance of Letters of Credit for its own
account, in a form reasonably acceptable to the Administrative Agent and the
applicable Issuing Lender, at any time and from time to time during the
Domestic Revolving Availability Period. 
Notwithstanding the foregoing, the account party for each Letter of
Credit shall be the Parent Borrower or the relevant Foreign Subsidiary
Borrower, as specified by the Administrative Agent and the applicable Issuing
Lender in consultation with the Parent Borrower.  In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by a Borrower to,
or entered into by a Borrower with, the applicable Issuing Lender relating to
any Letter of Credit, the terms and conditions of this Agreement shall
control.  The letters of credit described
on Schedule 2.5 (the “Existing Letters of Credit”) shall be deemed
to be “Letters of Credit” for all purposes of this Agreement and the other Loan
Documents.


 


(b)  Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter of Credit),
the relevant Borrower shall deliver to the applicable Issuing Lender and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or


 


36





















 


extension) a notice specifying
the name of the relevant Borrower and requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the currency in which such Letter of Credit is to be
denominated (which shall be Dollars or, subject to Section 2.22, an Alternative
Currency), the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit.  If requested by the
applicable Issuing Lender, the relevant Borrower also shall submit a letter of
credit application on such Issuing Lender’s standard form in connection with
any request for a Letter of Credit. 
Following receipt of such notice and prior to the issuance of the
requested Letter of Credit, the Administrative Agent shall calculate the Dollar
Equivalent of such Letter of Credit and shall notify the Parent Borrower, the
relevant Borrower and the applicable Issuing Lender of the amount of the Total
Domestic Exposure after giving effect to (i) the issuance of such Letter
of Credit, (ii) the issuance or expiration of any other Letter of Credit
that is to be issued or will expire prior to the requested date of issuance of
such Letter of Credit and (iii) the borrowing or repayment of any Domestic
Revolving Loans or Swingline Loans that (based upon notices delivered to the
Administrative Agent by the Parent Borrower) are to be borrowed or repaid prior
to the requested date of issuance of such Letter of Credit.  A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Parent Borrower and the relevant Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed
$275,000,000, (ii) the LC Exposure with respect to Letters of Credit
denominated in Dollars, pounds sterling and Euros shall not exceed
$275,000,000, (iii) the Alternative Currency LC Exposure with respect to
Letters of Credit denominated in any Alternative Currency (other than pounds
sterling or Euros) shall not exceed $75,000,000 and (iv) the Total
Domestic Exposure shall not exceed the total Domestic Revolving Commitments.


 


(c)  Expiration
Date.  Each Letter of Credit shall
expire at or prior to the close of business on the earlier of (i) the date
one year after the date of the issuance of such Letter of Credit (or, in the
case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the
Domestic Revolving Maturity Date, provided that notwithstanding the
foregoing, Letters of Credit having an aggregate face amount not in excess of
$75,000,000 may provide for an expiration date that is more than one year after
the date of issuance, so long as such expiration date does not extend beyond
the date referred to in clause (ii) above.


 


(d)  Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Lender or the Lenders, the
applicable Issuing Lender hereby grants to each Domestic Revolving Lender, and
each Domestic Revolving Lender hereby acquires from such Issuing Lender, a
participation in such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit.  In consideration and in
furtherance of the foregoing, each Domestic Revolving Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent in Dollars, for
the account of such Issuing Lender, such Lender’s Applicable Percentage of (i) each
LC Disbursement made by such Issuing Lender in Dollars and (ii) the Dollar
Equivalent, using the Exchange Rates on the date such payment is required, of
each LC Disbursement made by such Issuing Lender in an Alternative Currency
and, in each case, not reimbursed by the relevant Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to such Borrower for any reason (or, if such
reimbursement payment was refunded in an Alternative Currency, the Dollar
Equivalent thereof using the Exchange Rates on the date of such refund).  Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and


 


37





















 


continuance of a Default or
Event of Default or reduction or termination of the Commitments, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.


 


(e)  Reimbursement.  If the applicable Issuing Lender shall make
any LC Disbursement in respect of a Letter of Credit, the relevant Borrower
shall reimburse such LC Disbursement by paying to the Administrative Agent an
amount equal to such LC Disbursement in Dollars, or (subject to the two
immediately succeeding sentences) the applicable Alternative Currency, not
later than 12:00 noon, New York City time or the relevant local time, as
applicable, on the date that such LC Disbursement is made, if such Borrower
shall have received notice of such LC Disbursement prior to 10:00 a.m.,
New York City time or the relevant local time, as applicable, on such date, or,
if such notice has not been received by such Borrower prior to such time on
such date, then not later than 12:00 noon, New York City time or the relevant
local time, as applicable, on the Business Day immediately following the day
that such Borrower receives such notice; provided that, in the case of
any LC Disbursement made in Dollars, the relevant Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section 2.3
or 2.4 that such payment be financed in Dollars with an ABR Domestic Revolving
Borrowing or Swingline Loan in an equivalent amount and, to the extent so
financed, such Borrower’s obligation to make such payment shall be discharged
and replaced by the resulting ABR Domestic Revolving Borrowing or Swingline
Loan.  If the relevant Borrower’s
reimbursement of, or obligation to reimburse, any amounts in any Alternative
Currency would subject the Administrative Agent, the applicable Issuing Lender
or any Lender to any stamp duty, ad valorem charge or similar tax that would
not be payable if such reimbursement were made or required to be made in
Dollars, such Borrower shall, at its option, either (x) pay the amount of any
such tax requested by the Administrative Agent, the relevant Issuing Lender or
Lender or (y) reimburse each LC Disbursement made in such Alternative Currency
in Dollars, in an amount equal to the Dollar Equivalent, calculated using the
applicable Exchange Rate on the date such LC Disbursement is made, of such LC
Disbursement.  If the relevant Borrower
fails to make such payment when due, then (i) if such payment relates to
an Alternative Currency Letter of Credit, automatically and with no further
action required, such Borrower’s obligation to reimburse the applicable LC
Disbursement shall be permanently converted into an obligation to reimburse the
Dollar Equivalent, calculated using the Exchange Rates on the date when such
payment was due, of such LC Disbursement and (ii) the Administrative Agent
shall promptly notify the applicable Issuing Lender and each other Domestic
Revolving Lender of the applicable LC Disbursement, the Dollar Equivalent
thereof (if such LC Disbursement relates to an Alternative Currency Letter of
Credit), the payment then due from such Borrower in respect thereof and such
Lender’s Applicable Percentage thereof. 
Promptly following receipt of such notice, each Domestic Revolving
Lender shall pay to the Administrative Agent in Dollars its Applicable
Percentage of the payment then due from the relevant Borrower (determined as
provided in clause (i) above, if such payment relates to an Alternative
Currency Letter of Credit), in the same manner as provided in Section 2.7
with respect to Loans made by such Lender (and Section 2.7 shall apply, mutatis
mutandis, to the payment obligations of the Domestic Revolving Lenders),
and the Administrative Agent shall promptly pay to the applicable Issuing
Lender in Dollars the amounts so received by it from the Domestic Revolving
Lenders.  Promptly following receipt by
the Administrative Agent of any payment from any Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Lender or, to the extent that Domestic Revolving Lenders
have made payments pursuant to this paragraph to reimburse such Issuing Lender,
then to such Lenders and such Issuing Lender as their interests may
appear.  Any payment made by a Domestic
Revolving Lender pursuant to this paragraph to reimburse any Issuing Lender for
any LC Disbursement (other than the funding of ABR Domestic Revolving Loans or
a Swingline Loan as contemplated above) shall not constitute a Loan and shall
not relieve any Borrower of its obligation to reimburse such LC Disbursement.


 


(f)  Obligations
Absolute.  A Borrower’s obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances


 


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whatsoever and irrespective of (i) any
lack of validity or enforceability of any Letter of Credit, any application for
the issuance of a Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment
by the applicable Issuing Lender under a Letter of Credit against presentation
of a draft or other document that does not comply with the terms of such Letter
of Credit, or (iv) any other event or circumstance whatsoever, whether or
not similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, such Borrower’s obligations hereunder.  Neither the Administrative Agent, the Lenders
nor any Issuing Lender, nor any of their Related Parties, shall have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the applicable Issuing
Lender; provided that neither of the foregoing sentences shall be
construed to excuse such Issuing Lender from liability to a Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by each Borrower to the extent permitted by
applicable law) suffered by such Borrower that are caused by such Issuing
Lender’s gross negligence, willful misconduct or failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. 
The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of an Issuing Lender (as finally
determined by a court of competent jurisdiction), such Issuing Lender shall be
deemed to have exercised care in each such determination.  In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, an Issuing Lender may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


 


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


 


(h)  Interim
Interest.  If an Issuing Lender shall
make any LC Disbursement, then, unless the relevant Borrower shall reimburse
such LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that such Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR
Domestic Revolving Loans; provided that, if such Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of
this Section, then Section 2.15(c) shall apply; provided  further
that, in the case of an LC Disbursement made under an Alternative Currency
Letter of Credit, the amount of interest due with respect thereto shall (i) in
the case of any LC Disbursement that is reimbursed on or before the Business
Day immediately succeeding such LC Disbursement, (A) be payable in the
applicable Alternative Currency and (B) if not reimbursed on the date of
such LC Disbursement, bear interest at a rate equal to the rate reasonably
determined by the applicable Issuing Lender to be the cost to such Issuing Lender
of funding such LC Disbursement plus the


 


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Applicable Margin applicable to
Eurocurrency Revolving Loans at such time and (ii) in the case of any LC
Disbursement that is reimbursed after the Business Day immediately succeeding
such LC Disbursement (A) be payable in Dollars, (B) accrue on the
Dollar Equivalent, calculated using the Exchange Rates on the date such LC
Disbursement was made, of such LC Disbursement and (C) bear interest at
the rate per annum then applicable to ABR Revolving Loans, subject to Section 2.15(c).  Interest accrued pursuant to this paragraph
shall be for the account of the applicable Issuing Lender, except that interest
accrued on and after the date of payment by any Domestic Revolving Lender
pursuant to paragraph (e) of this Section to reimburse such Issuing
Lender shall be for the account of such Lender to the extent of such payment.


 


(i)  Replacement
of any Issuing Lender.  Any Issuing
Lender may be replaced at any time by written agreement among the Parent
Borrower, the Administrative Agent, the replaced Issuing Lender and the
successor Issuing Lender.  The
Administrative Agent shall notify the Lenders of any such replacement of such
Issuing Lender.  At the time any such
replacement shall become effective, the Parent Borrower shall pay all unpaid
fees accrued for the account of the replaced Issuing Lender pursuant to Section 2.14(b).  From and after the effective date of any such
replacement, (i) the successor Issuing Lender shall have all the rights
and obligations of such Issuing Lender under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to
the term “Issuing Lender” shall be deemed to refer to such successor or to any
previous Issuing Lender, or to such successor and all previous Issuing Lenders,
as the context shall require.  After the
replacement of an Issuing Lender hereunder, the replaced Issuing Lender shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Lender under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.


 


(j)  Cash Collateralization.  If any Event of Default shall occur and be
continuing, on the Business Day that a Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Domestic Revolving Lenders with LC Exposure representing
at least 51% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, such Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Domestic Revolving Lenders, an amount in Dollars and in cash
equal to the LC Exposure as of such date plus any accrued and unpaid interest
thereon; provided that (i) the portions of such amount attributable
to undrawn Alternative Currency Letters of Credit or LC Disbursements in an
Alternative Currency that the Borrowers are not late in reimbursing shall be
deposited in the applicable Alternative Currencies in the actual amounts of
such undrawn Letters of Credit and LC Disbursements and (ii) the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to any Borrower described in paragraph (h) or (i) of Article VII.  For the purposes of this paragraph, the
Alternative Currency LC Exposure shall be calculated using the Exchange Rates
on the date notice demanding cash collateralization is delivered to a Borrower.  Each Borrower also shall deposit cash
collateral pursuant to this paragraph as and to the extent required by Section 2.12(c).  Each such deposit pursuant to this paragraph
or pursuant to Section 2.12(c) shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of each
Borrower under this Agreement.  The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account.  Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the relevant Borrower’s risk
and expense, such deposits shall not bear interest.  Interest or profits, if any, on such
investments shall accumulate in such account. 
Moneys in such account shall be applied by the Administrative Agent to
reimburse the applicable Issuing Lender for LC Disbursements for which it has
not been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the relevant Borrower for the
LC Exposure at such time or, if the maturity of the Loans has been accelerated


 


40





















 


(but subject to the consent of
Domestic Revolving Lenders with LC Exposure representing at least 51% of the
total LC Exposure), be applied to satisfy other obligations of such Borrower
under this Agreement.  If a Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to such Borrower within three Business Days after
all Events of Default have been cured or waived.  If a Borrower is required to provide an
amount of cash collateral hereunder pursuant to Section 2.12(c), such
amount (to the extent not applied as aforesaid) shall be returned to such
Borrower as and to the extent that, after giving effect to such return, such
Borrower would remain in compliance with Section 2.12(c), and no Event of
Default shall have occurred and be continuing.


 


(k)  Conversion.  In the event that the Loans become
immediately due and payable on any date pursuant to Article VII, all
amounts (i) that a Borrower is at the time or thereafter becomes required
to reimburse or otherwise pay to the Administrative Agent in respect of LC
Disbursements made under any Alternative Currency Letter of Credit (other than
amounts in respect of which such Borrower has deposited cash collateral
pursuant to Section 2.5(j), if such cash collateral was deposited in the
applicable Alternative Currency to the extent so deposited or applied), (ii) that
the Domestic Revolving Lenders are at the time or thereafter become required to
pay to the Administrative Agent and the Administrative Agent is at the time or
thereafter becomes required to distribute to the applicable Issuing Lender
pursuant to paragraph (e) of this Section in respect of unreimbursed
LC Disbursements made under any Alternative Currency Letter of Credit and (iii) of
each Domestic Revolving Lender’s participation in any Alternative Currency
Letter of Credit under which an LC Disbursement has been made shall,
automatically and with no further action required, be converted into the Dollar
Equivalent, calculated using the Exchange Rates on such date (or in the case of
any LC Disbursement made after such date, on the date such LC Disbursement is
made), of such amounts.  On and after
such conversion, all amounts accruing and owed to the Administrative Agent, the
applicable Issuing Lender or any Lender in respect of the Obligations described
in this paragraph shall accrue and be payable in Dollars at the rates otherwise
applicable hereunder.


 


(l)  Additional Issuing Lenders.  The Parent Borrower may, at any time and from
time to time with the consent of the Administrative Agent (which consent shall
not be unreasonably withheld) and such Domestic Revolving Lender, designate one
or more additional Domestic Revolving Lenders to act as an issuing lender under
the terms of this Agreement, provided that the total number of Domestic
Revolving Lenders so designated at any time plus the total number of Issuing
Lenders pursuant to clause (c) of the definition of the term “Issuing
Lenders” at such time shall not exceed five. 
Any Domestic Revolving Lender designated as Issuing Lender pursuant to
this paragraph (1) shall be deemed to be an “Issuing Lender” for the
purposes of this Agreement (in addition to being a Domestic Revolving Lender)
with respect to Letters of Credit issued by such Domestic Revolving Lender.


 


(m)  Reporting.  Each Issuing Lender will report in writing to
the Administrative Agent (i) on the first Business Day of each week, the
aggregate face amount of Letters of Credit issued by it and outstanding as of
the last Business Day of the preceding week, (ii) on or prior to each
Business Day on which such Issuing Lender expects to issue, amend, renew or
extend any Letter of Credit, the date of such issuance or amendment, and the
aggregate face amount of Letters of Credit to be issued, amended, renewed or
extended by it and outstanding after giving effect to such issuance, amendment,
renewal or extension (and such Issuing Lender shall advise the Administrative
Agent on such Business Day whether such issuance, amendment, renewal or
extension occurred and whether the amount thereof changed), (iii) on each
Business Day on which such Issuing Lender makes any LC Disbursement, the date
of such LC Disbursement and the amount of such LC Disbursement and (iv) on
any Business Day on which any Borrower fails to reimburse an LC Disbursement
required to be reimbursed to such Issuing Lender on such day, the date of such
failure, the relevant Borrower and amount of such LC Disbursement.


 


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SECTION 2.6.                       Foreign
Credit Instruments.  (a)  Foreign
Trade Commitments.  Subject to the
terms and conditions set forth herein, each Foreign Issuing Lender severally
agrees to issue bilateral Foreign Credit Instruments, Fronted Foreign Credit
Instruments and Joint Signature Foreign Credit Instruments in an aggregate
principal amount not exceeding the Foreign Trade Commitment of such
Lender.  Each Existing Foreign Credit
Instrument issued by a Foreign Issuing Lender shall be deemed for all purposes
of this Agreement to constitute a Foreign Credit Instrument issued by such
Lender and the Foreign Trade Commitment of such Lender shall be deemed utilized
in an amount equal to the Euro Equivalent of all Existing Foreign Credit
Instruments issued by it and determined as of the Effective Date, subject to
subsequent determinations of such Euro Equivalent pursuant to Section 2.6(l);
provided that (i) with respect to any Existing Foreign Credit
Instrument listed on Part B of Schedule 2.6(a), until the execution
and delivery, in accordance with Section 2.23(b), of a Borrowing
Subsidiary Agreement by the relevant account party under such Foreign Credit
Instrument, the Parent Borrower, the Administrative Agent and the Foreign Trade
Facility Agent, the rights and obligations of such account party and the
relevant Foreign Issuing Lender shall be governed by the documents and
instruments evidencing or governing such Foreign Credit Instrument immediately
prior to the Effective Date and (ii) with respect to any standby letter of
credit, bank guarantee or surety which is not listed on Schedule 2.6(a) and
which has been designated an Existing Foreign Credit Instrument as provided
under clause (b) of the definition thereof, such instrument shall be
deemed to be an Existing Foreign Credit Instrument as of the date of such
designation (subject to compliance with all other provisions contained herein
(including Section 2.6(d)) and such Foreign Issuing Lender’s Foreign Trade
Commitment not being exceeded due to the operation of this clause (ii)).  Each Foreign Issuing Lender hereby confirms
that the Existing Foreign Credit Instruments issued by it conform to the
Mandatory Requirements.


 


(b)  Extension
Option.  (i)  The Parent
Borrower may, not more than twice during the term of this Agreement, by written
notice to the Administrative Agent and the Foreign Trade Facility Agent (such
notice being an “Extension Notice”) delivered no later than 90 and not
more than 180 days prior to the second anniversary of the Effective Date (or,
in the case of the second such notice, no later than 90 and not more than 180
days prior to the date that is two years after such second anniversary) (the
date of such notice, the “Notice Date”), request the Foreign Issuing
Lenders to extend the then applicable Foreign Trade Maturity Date for an
additional two years (the “Extended Foreign Trade Maturity Date”).  The Foreign Trade Facility Agent shall
promptly transmit any Extension Notice to each Foreign Issuing Lender.  Each Foreign Issuing Lender shall notify the
Foreign Trade Facility Agent whether it wishes to extend the then applicable
Foreign Trade Maturity Date at least 60 days prior to such anniversary of the
Effective Date, and any such notice given by a Foreign Issuing Lender to the
Foreign Trade Facility Agent, once given, shall be irrevocable as to such
Lender.  The Foreign Trade Facility Agent
shall promptly notify the Administrative Agent and the Parent Borrower of each
Foreign Issuing Lender’s notice that it wishes to extend (each, an “Extension
Acceptance Notice”).  Any Lender
which does not expressly notify the Foreign Trade Facility Agent on or before
the date that is 60 days prior to the then applicable anniversary of the
Effective Date that it wishes to so extend the then applicable Foreign Trade
Maturity Date shall be deemed to have rejected the Parent Borrower’s request
for extension of such Foreign Trade Maturity Date.  Foreign Issuing Lenders consenting to extend
the then applicable Foreign Trade Maturity Date are hereinafter referred to as “Extending
Lenders”, and Foreign Issuing Lenders declining to consent to extend such
Foreign Trade Maturity Date (or Lenders deemed to have so declined) are
hereinafter referred to as “Non-Extending Lenders”.  If the Majority Facility Lenders in respect
of the Foreign Trade Facility have elected (in their sole and absolute
discretion) to so extend the then applicable Foreign Trade Maturity Date, the
Foreign Trade Facility Agent shall notify the Administrative Agent and the
Parent Borrower of such election by such Majority Facility Lenders no later
than five Business Days after the date when Extension Acceptance Notices are
due, and effective on the date of such notice by the Foreign Trade Facility
Agent to the Administrative Agent and the Parent Borrower (the “Extension Date”),
the Foreign Trade Maturity Date shall be automatically and immediately so
extended to the Extended Foreign Trade Maturity Date.  No extension will be permitted hereunder
without the consent of


 


42





















 


the Majority Facility Lenders
under the Foreign Trade Facility.  Upon
the delivery of an Extension Notice and upon the extension of the Foreign Trade
Maturity Date pursuant to this Section 2.6(b)(i), the Parent Borrower
shall be deemed to have represented and warranted on and as of the Notice Date
and the Extension Date, as the case may be, that no Default or Event of Default
has occurred and is continuing. 
Notwithstanding anything contained in this Agreement to the contrary, no
Lender shall have any obligation to extend the Foreign Trade Maturity Date, and
each Lender may at its option, unconditionally and without cause, decline to
extend the Foreign Trade Maturity Date. 
Upon request of the Parent Borrower, each Extending Lender may, by
written notice to the Parent Borrower, the Administrative Agent and the Foreign
Trade Facility Agent, increase its Foreign Trade Commitment to an amount agreed
with the Parent Borrower, provided that the aggregate amount of the
Foreign Trade Commitments of all Foreign Issuing Lenders following such
increase does not exceed an amount equal to the amount of the Foreign Trade
Facility at the time the relevant Extension Notice is given.


 


(ii)                                  If
the Foreign Trade Maturity Date shall have been extended in accordance with Section 2.6(b)(i),
all references herein to the “Foreign Trade Maturity Date” shall refer to the
Extended Foreign Trade Maturity Date.


 


(iii)                               The
Foreign Trade Commitment of each Non-Extending Lender shall be cancelled and
reduced to zero on the Foreign Credit Maturity Date applicable immediately
prior to the relevant extension (the “Non-Extending Lender Maturity Date”)
and, from and after the date such Lender becomes a Non-Extending Lender, such
Lender shall not issue any Foreign Credit Instrument that matures after such
Non-Extending Lender Maturity Date.


 


(iv)                              To
the extent any Foreign Credit Instruments (including Fronted Foreign Credit
Instruments) issued by a Non-Extending Lender are outstanding on the
Non-Extending Lender Maturity Date, the relevant Non-Extending Lender may, in
its discretion and with at least 30 days’ prior written notice to the relevant
Borrower, require that such Borrower provide Cash Cover (or any other credit
support (including Counter-Guarantees) to be agreed upon with the Parent
Borrower at such Lender’s full discretion) not later than the Non-Extending
Lender Maturity Date (the “Cash Cover Extension”).


 


(v)                                 Each
outstanding Foreign Credit Instrument issued by a Non-Extending Lender shall,
as of the Non-Extending Lender Maturity Date, cease to be treated as a Foreign
Credit Instrument issued under this Agreement. 
Except to the extent otherwise agreed by such Non-Extending Lender and
the Parent Borrower, Sections 2.6(h), 2.6(m)(v), 2.6(m)(vi), 2.6(n)(iii),
2.6(n)(v) and 2.10(a) of this Agreement shall be applicable mutatis
mutandis with respect to the outstanding Foreign Credit Instruments
issued by such Non-Extending Lender as if such provisions had been agreed in a
bilateral agreement between the relevant Borrower and the Non-Extending Lender.  In the case of a Cash Cover Extension, the
relevant Non-Extending Lender shall pay, at the end of each month, interest on
the amount deposited by the relevant Borrower with it pursuant to Section 2.6(m)(v),
to be calculated on a daily basis (A) if the deposited amount is in Euros,
at a rate of EONIA and (B) in the case of any other currency, the rate
reasonably determined by such Lender as the rate such Lender would receive for
overnight deposits in the relevant currency from any other bank or financial
institution, in each case minus 0.15% per annum.


 


(c)  Procedure
for Issuance and Reversals.  Each
Borrower may, at any time and from time to time during the period from the
Effective Date until the Foreign Trade Maturity Date, request the issuance of Foreign
Credit Instruments or an extension or other amendment of any outstanding
Foreign Credit Instrument by sending to the Foreign Trade Facility Agent a duly
completed request for issuance (each, a “Utilization Request”) by
electronic transfer using the db direct internet in accordance with the terms
of the DB Direct Internet Agreement. 
Only if for technical reasons it should not be possible to make a
request for issuance through db direct internet, such request may be made (to
be pre-advised by


 


43





















 


telephone by the relevant
Borrower) via fax or by letter, in substantially the form of Exhibit K, in
each case to a fax number or address agreed with the Foreign Trade Facility
Agent for this purpose, receipt of such fax or letter to be promptly confirmed
by the Foreign Trade Facility Agent by telephone to a number agreed with the
relevant Borrower for this purpose, provided that in such case explicit
reference has to be made to this Agreement and the Foreign Trade Facility Agent
shall in such case not be held responsible for a delayed processing of such
Utilization Request unless such delayed processing is caused by gross
negligence or willful misconduct on the part of the Foreign Trade Facility
Agent following the confirmation of the receipt of the relevant fax or
letter.  As the Foreign Trade Facility
Agent will not, in the event a Utilization Request is submitted by telefax, be
in a position to verify whether such Utilization Request has been duly
authorized and sent by the relevant Borrower, each Borrower hereby agrees that
the Foreign Trade Facility Agent shall be entitled to execute all Utilization
Requests received by telefax if on their face such telefax letters seem to be
duly authorized and executed by persons acting on behalf of such Borrower who
have been identified as authorized signatories in annex 1.3.1 to the DB Direct
Internet Agreement or in the officer’s certificate furnished pursuant to Section 4.1(i).  Neither the Foreign Trade Facility Agent nor
any of the Lenders shall be held liable for the execution of any forged
Utilization Request received by telefax except where the forgery is evident or
the Foreign Trade Facility Agent or the respective Foreign Issuing Lender acted
in gross negligence or willful misconduct. 
No Utilization Request will be regarded as having been duly completed
unless:


 


(i)                                     the requested
Foreign Credit Instrument would constitute a Warranty Guarantee, a Performance
Guarantee, an Advance Payment Guarantee, a Tender Guarantee, a
Counter-Guarantee or a General Purpose Guarantee;


 


(ii)                                  the proposed wording
(if any) for the requested Foreign Credit Instrument is in accordance with the
Mandatory Requirements;


 


(iii)                               the requested Foreign
Credit Instrument is denominated in a Permitted Currency or any other currency
agreed by the Foreign Issuing Lender determined by the Foreign Trade Facility
Agent as the Foreign Issuing Lender to issue the requested Foreign Credit
Instrument in accordance with Section 2.6(g);


 


(iv)                              the specific expiry date
of the requested Foreign Credit Instrument, which must not be linked to any
events in the underlying contract and which is not subject to any
interpretation, or, if the requested Foreign Credit Instrument does not provide
for such determination of a specific expiry date, the Commercial Lifetime,
shall fall within the Permitted Maturity;


 


(v)                                 the obligor of the
obligations to be secured by the requested Foreign Credit Instrument is named;
and


 


(vi)                              upon issuance of the
requested Foreign Credit Instrument (for this purpose such Foreign Credit
Instrument is deemed to be issued at the time of receipt of the Utilization
Request therefor by the Foreign Trade Facility Agent), the thresholds for the
different types of Foreign Credit Instruments set forth under Section 2.6(d) would
not be exceeded.


 


Only one Foreign Credit
Instrument may be requested in each Utilization Request.  A Utilization Request may only be revoked by
the relevant Borrower (x) until the Foreign Trade Facility Agent has forwarded
the Utilization Request to the relevant Foreign Issuing Lender in accordance
with Section 2.6(g), by giving notice to the Foreign Trade Facility Agent
or (y) thereafter, by giving notice to the relevant Foreign Issuing Lender
which has to be received by such Lender at a time when such Lender will, with
reasonable efforts, still be in a position to stop the delivery of the relevant
Foreign Credit Instrument to


 


44





















 


the relevant beneficiary or any
other Person as instructed by such Borrower. 
In such case, the relevant Foreign Issuing Lender shall promptly inform
the Foreign Trade Facility Agent and the relevant Borrower that the requested
Foreign Credit Instrument has not been issued. 
No Foreign Issuing Lender shall be required to issue a Foreign Credit
Instrument in any jurisdiction that would impose withholding taxes on any
payments in respect of such Foreign Credit Instrument.


 


(d)  Limitations
on Use.  The Borrowers may only
request the issuance of Foreign Credit Instruments if:


 


(i)                                     the Euro
Equivalent of the requested Foreign Credit Instrument, when aggregated with the
Euro Equivalent of all other outstanding Foreign Credit Instruments and
unreimbursed Foreign Credit Disbursements as of the time of receipt of the relevant
Utilization Request, does not exceed the total Foreign Trade Commitments;


 


(ii)                                  if the requested
Foreign Credit Instrument constitutes a Warranty Guarantee, the Euro Equivalent
of such Foreign Credit Instrument, when aggregated with the Euro Equivalent of
all other outstanding Warranty Guarantees and unreimbursed Foreign Credit
Disbursements in respect of Warranty Guarantees as of the time of receipt of
the relevant Utilization Request, does not exceed 30% of the total Foreign
Trade Commitments;


 


(iii)                               if the requested Foreign
Credit Instrument constitutes a Performance Guarantee, the Euro Equivalent of
such Foreign Credit Instrument, when aggregated with the Euro Equivalent of all
other outstanding Performance Guarantees and unreimbursed Foreign Credit
Disbursements in respect of Performance Guarantees as of the time of receipt of
the relevant Utilization Request, does not exceed 60% of the total Foreign
Trade Commitments;


 


(iv)                              if the requested Foreign
Credit Instrument constitutes an Advance Payment Guarantee, the Euro Equivalent
of such Foreign Credit Instrument, when aggregated with the Euro Equivalent of
all other outstanding Advance Payment Guarantees and unreimbursed Foreign
Credit Disbursements in respect of Advance Payment Guarantees as of the time of
receipt of the relevant Utilization Request, does not exceed 45% of the total
Foreign Trade Commitments;


 


(v)                                 if the requested
Foreign Credit Instrument constitutes a Tender Guarantee, the Euro Equivalent
of such Foreign Credit Instrument, when aggregated with the Euro Equivalent of
all other outstanding Tender Guarantees and unreimbursed Foreign Credit
Disbursements in respect of Tender Guarantees as of the time of receipt of the
relevant Utilization Request, does not exceed 10% of the total Foreign Trade
Commitments; and


 


(vi)                              if the requested Foreign
Credit Instrument constitutes a General Purpose Guarantee, the Euro Equivalent
of such Foreign Credit Instrument, when aggregated with the Euro Equivalent of
all other outstanding General Purpose Guarantees and unreimbursed Foreign
Credit Disbursements in respect of General Purpose Guarantees as of the time of
receipt of the relevant Utilization Request, does not exceed 10% of the total
Foreign Trade Commitments.


 


If the Foreign Trade
Facility Agent is of the opinion that a requested Foreign Credit Instrument is
not of the type as specified in the Utilization Request by a Borrower or if the
type of Foreign Credit Instrument is not clearly specified in the relevant
Utilization Request, the Foreign Trade Facility Agent shall reasonably
determine the type of the requested Foreign Credit Instrument based on the
purpose (or, if such Foreign Credit Instrument is intended to serve more than
one purpose, the primary purpose) assumed by the Foreign Trade Facility Agent
on the basis of the wording of the relevant requested Foreign Credit Instrument
and the facts and circumstances known to it at the time of the receipt of such
Utilization


 


45





















 


Request, and the Foreign
Trade Facility Agent shall inform such Borrower accordingly of such
determination.  If the Foreign Trade
Facility Agent and the relevant Borrower mutually determine at a later stage
that a Foreign Credit Instrument shall fall into another category, such
re-qualification shall be taken into account for the purpose of this Section 2.6(d).  No Foreign Credit Instruments shall be issued
(and no Borrower shall make such a Utilization Request) which serve as security
for obligations of any Person other than a Borrower or a Subsidiary.


 


(e)  Deviations
from Foreign Credit Instrument Requirements.  No Foreign Credit Instrument shall be issued
by any Foreign Issuing Lender if the Mandatory Requirements are not
fulfilled.  No Foreign Issuing Lender
shall be obliged to issue a Foreign Credit Instrument (i) which does not
fulfill the Dispensable Requirements, (ii) which shall be issued in a
currency other than a Permitted Currency, or (iii) if the issuance of the
relevant Foreign Credit Instrument is not permitted pursuant to its internal rules and
guidelines.  In order to avoid a
rejection of any issuance of a Foreign Credit Instrument requested by a
Borrower due to non-compliance of its terms with the Dispensable Requirements,
each Borrower hereby undertakes that, with respect to any Foreign Credit
Instrument to be issued where the Borrower considers it reasonably likely that
it will not be in a position to negotiate with the relevant future beneficiary
terms for the relevant Foreign Credit Instrument which will meet the
Dispensable Requirements, such Borrower will as soon as possible approach the
Foreign Trade Facility Agent which shall determine the Foreign Issuing Lender
which should issue such Foreign Credit Instrument by applying Section 2.6(f) mutatis
mutandis.  Each Borrower shall
seek advice from the Foreign Issuing Lender determined by the Foreign Trade
Facility Agent as the relevant Foreign Issuing Lender with respect to all
Foreign Credit Instrument related issues during its negotiations of the
underlying contract with the potential beneficiary of such Foreign Credit
Instrument.  In cases where, in spite of
such Borrower’s commercially reasonable efforts, fulfillment of the Dispensable
Requirements appears unachievable, the relevant Foreign Issuing Lender and such
Borrower shall try to reach an agreement on an indemnity in favor of such
Lender which allows such Lender to issue the relevant Foreign Credit Instrument
in its contractual relationship with such Borrower, provided that the
right of the relevant Foreign Issuing Lender to reject the issuance of the
requested Foreign Credit Instrument shall remain unaffected.


 


(f)  Determination
of Foreign Issuing Lender.  (i) 
Following the receipt of a Utilization Request, the Foreign Trade Facility
Agent shall determine whether in its opinion the requested Foreign Credit
Instrument fulfills the conditions under Sections 2.6(c) and 2.6(d).  If the Foreign Trade Facility Agent is of the
opinion that the requested Foreign Credit Instrument does not fulfill such
conditions it shall promptly inform the relevant Borrower and shall liaise with
such Borrower with a view to agree on a modification of such Utilization
Request.  If no such agreement can be
reached, the Foreign Trade Facility Agent shall reject the Utilization Request.  If the Foreign Trade Facility Agent is of the
opinion (as the case may be, following a modification of such Utilization
Request) that the conditions under Sections 2.6(c) and 2.6(d) are
fulfilled and no specific Foreign Issuing Lender has been determined in
accordance with clause (iii) below it shall forward such Utilization
Request for issuance of the relevant Foreign Credit Instrument to the Foreign
Issuing Lender(s) determined in accordance with clause (ii) below.


 


(ii)                                  In
order to ensure that the Foreign Credit Instruments are issued substantially on
a pro  rata basis, the Foreign Trade Facility Agent shall allocate
the Foreign Credit Instrument to the Foreign Issuing Lender with the lowest
relative utilization of its Foreign Trade Commitment as of the time of receipt
of such Utilization Request and, if two or more Foreign Issuing Lenders have an
identical relative utilization of their respective Foreign Trade Commitments,
the Foreign Trade Facility Agent shall allocate the Foreign Credit Instrument to
one of these Foreign Issuing Lenders in its free discretion.


 


(iii)                               If
a Borrower informs the Foreign Trade Facility Agent that in its reasonable
opinion (or if the Foreign Trade Facility Agent reasonably believes that) the
beneficiary of the relevant


 


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Foreign Credit Instrument will
only accept a specific Foreign Issuing Lender or a Foreign Issuing Lender
meeting specific criteria as issuer or if for any other commercial or legal
reason a specific Foreign Credit Instrument should, in the reasonable opinion
of the Foreign Trade Facility Agent, be issued by a specific Foreign Issuing
Lender, the Foreign Trade Facility Agent shall deviate from (ii) above and
allocate the requested Foreign Credit Instrument to (A) such Foreign
Issuing Lender, provided that such Lender has a sufficient unused
Foreign Trade Commitment or (B) any Foreign Issuing Lender meeting the
respective criteria which has a sufficient unused Foreign Trade Commitment, provided
that in the case of this clause (B), the Foreign Trade Facility Agent shall
allocate the Foreign Credit Instrument among the qualifying Foreign Issuing
Lenders applying the rules set forth under clause (ii) above mutatis
mutandis.


 


(iv)                              If
the Foreign Trade Facility Agent determines that, due to the amount of the
requested Foreign Credit Instrument, the requested Foreign Credit Instrument
cannot be issued by a single Foreign Issuing Lender, it shall promptly inform
the relevant Borrower and such Borrower shall then either withdraw the relevant
Utilization Request or instruct the Foreign Trade Facility Agent that the
relevant Foreign Credit Instrument:


 


(A)                              shall be split into two
or, if necessary due to the amount of the Foreign Credit Instrument, more
Foreign Credit Instruments issued by several Foreign Issuing Lenders (to be
determined in accordance with clauses (ii) and (iii) above);


 


(B)                                shall be issued as a
Joint Signature Foreign Credit Instrument in accordance with Section 2.6(k);
or


 


(C)                                if in the reasonable
opinion of such Borrower the procedures under the foregoing clauses (A) and
(B) will not be acceptable to the beneficiary or for other reasons not
feasible, shall be issued as a Fronted Foreign Credit Instrument in accordance
with Section 2.6(j).


 


(v)                                 In
no event shall the aggregate amount of the sum of the Euro Equivalent of all
Foreign Credit Instruments issued by a Foreign Issuing Lender plus the Euro
Equivalent of all unreimbursed Foreign Credit Disbursements of such Lender
exceed the amount of such Lender’s Foreign Trade Commitment.


 


(g)  Issuance
of Foreign Credit Instruments.  (i) 
The Foreign Trade Facility Agent shall promptly forward each Utilization
Request to the respective Foreign Issuing Lender(s) no later than 3:00 p.m.,
Düsseldorf time, on the Business Day following the day it has received such
Utilization Request (or, if such day is not a Business Day, on the Business Day
following the first Business Day after the day the Foreign Trade Facility Agent
has received the Utilization Request) (the “Latest Notification Day”).  The Foreign Trade Facility Agent shall
determine in its notice to the relevant Foreign Issuing Lender the day on which
the requested Foreign Credit Instrument shall be issued (such day being the “Utilization
Date”) which shall be the second Business Day of such Foreign Issuing
Lender immediately following its receipt of the Utilization Request.  If, on the Utilization Date, banks are not
open for business at the place of the Lending Office of the relevant Foreign
Issuing Lender determined in accordance with Section 2.6(f)(ii) but
are open for business at the place of the Lending Office of any other Foreign
Issuing Lender, the Foreign Trade Facility Agent shall allocate the Foreign
Credit Instrument in accordance with Section 2.6(f)(ii) to another
Foreign Issuing Lender which is open for business at such day which shall then
act as the relevant Foreign Issuing Lender to which the Utilization Request
shall be forwarded.  Such Foreign Issuing
Lender(s) shall issue the respective Foreign Credit Instrument(s) on the
Utilization Date unless such Foreign Issuing Lender informs the Foreign Trade
Facility Agent and the relevant Borrower on or prior to 5:00 p.m.,
Düsseldorf time, on the Utilization Date that (and for which reasons) (x) it
will not be able to issue the relevant Foreign Credit Instrument on the
Utilization Date (in which case the Foreign Issuing Lender shall inform the
Foreign Trade Facility Agent and such Borrower when it will be able to


 


47





















 


issue the relevant Foreign
Credit Instrument) or (y) it will not be able to issue the Foreign Credit
Instrument at all (1) due to its internal rules and guidelines, or (2) due
to any applicable law or regulation with which it has to comply, or (3) due
to the currency (other than any Permitted Currency) in which the Foreign Credit
Instrument shall be issued, (4) because it is of the opinion that the
Mandatory Requirements are not fulfilled or (5) because it is of the
opinion that the Dispensable Requirements are not fulfilled.


 


(ii)                                  If
a Foreign Credit Instrument shall be issued on the same day the Utilization
Request is delivered to the Foreign Trade Facility Agent (or if such day is not
a Business Day, the following Business Day), the relevant Borrower shall inform
the Foreign Trade Facility Agent in advance by telephone that the requested
Foreign Credit Instrument shall be issued on the same day (or if such day is
not a Business Day, the following Business Day).  The Foreign Trade Facility Agent shall
promptly inform the relevant Foreign Issuing Lender accordingly which shall be
obliged to use commercially reasonable efforts to issue the Foreign Credit
Instrument on the same day as it receives the Utilization Request.


 


(iii)                               (A) 
In the cases referred to in clause (x) or clause (y)(3) of Section 2.6(g)(i) above,
the Foreign Trade Facility Agent shall obtain, and follow, instructions from
the relevant Borrower, (B) in the cases referred to in clause (y)(1), (2),
(4) and (5) of Section 2.6(g)(i) above, the relevant
Borrower shall agree with the relevant Foreign Issuing Lender any amendments
necessary to the respective Foreign Credit Instrument to enable the relevant
Foreign Issuing Lender to issue the relevant Foreign Credit Instrument and, in
the case of sub-paragraph (y)(5), Section 2.6(e) shall apply mutatis
mutandis, (C) if, in the cases referred to under (A) or (B) above,
no agreement can be reached between the relevant Foreign Issuing Lender and the
relevant Borrower, such Foreign Issuing Lender shall reject the request to
issue the requested Foreign Credit Instrument and the Foreign Trade Facility
Agent shall promptly allocate the Foreign Credit Instrument to another Foreign
Issuing Lender and the time for issuance of the Foreign Credit Instrument shall
be postponed to the extent necessary for practical reasons.  Such Foreign Issuing Lender shall promptly
inform the Foreign Trade Facility Agent about all changes agreed with such
Borrower with respect to a Utilization Request in accordance with this clause
(iii).


 


(iv)                              The
relevant Foreign Issuing Lender may either issue the Foreign Credit Instrument
directly or, if requested by and agreed with the relevant Borrower, arrange
that the Foreign Credit Instrument (an “Indirect Foreign Credit Instrument”)
be issued by a second bank (including one of its affiliates) or financial
institution (the “Indirect Foreign Issuing Lender”) against its
corresponding Counter-Guarantee.  In case
of an Indirect Foreign Credit Instrument, such Foreign Issuing Lender is entitled
to receive, for payment to the Indirect Foreign Issuing Lender, separate fees
and expenses in respect of such Indirect Foreign Credit Instrument in addition
to the fees and expenses pursuant to Section 2.6(n).  In line with international practices, the
validity of a Counter-Guarantee in favor of the Indirect Foreign Issuing Lender
will exceed the validity of the Indirect Foreign Credit Instrument by at least
ten calendar days.


 


(v)                                 If
a Utilization Request is made to request an amendment (including an extension)
of any outstanding Foreign Credit Instrument, the Foreign Trade Facility Agent
shall forward the Utilization Request to the relevant Foreign Issuing Lender if
the requirements of Section 2.6(d) are fulfilled.  Clauses (i) through (iii) of Section 2.6(g) shall
apply mutatis  mutandis.


 


(vi)                              Each
Foreign Issuing Lender shall comply at all times with the obligations set forth
on Schedule 2.6(g).


 


(vii)                           If the
relevant Foreign Issuing Lender has not rejected the request to issue a Foreign
Credit Instrument, the requested currency of which is not a Permitted Currency,
the relevant


 


48





















 


Borrower assumes all risks
related thereto and shall reimburse all costs related to the procurement of
such currency for honoring such Foreign Credit Instrument in such specific
currency.


 


(h)                                 Borrower
Liabilities.  (i)  If a Foreign
Issuing Lender receives a request for payment under any Foreign Credit
Instrument (including from a Fronting Guarantor or Indirect Foreign Issuing
Lender under a Counter-Guarantee) issued by it, it shall promptly (and before
any payment is made in respect thereof) inform the relevant Borrower, the
Foreign Trade Facility Agent and the Administrative Agent accordingly.  Such Foreign Issuing Lender may, upon receipt
of such demand but not earlier than one Business Day following the notification
of the relevant Borrower of the request for payment, make any payment (each, a “Foreign
Credit Disbursement”) in accordance with the terms of the relevant Foreign
Credit Instrument without any reference to or further authority from such
Borrower or any other investigation or inquiry, provided that (A) the
demand for payment appears on its face to be in compliance with the terms
specified in such Foreign Credit Instrument, (B) the demand is not
obviously fraudulent or forged or conclusive evidence is shown thereof and (C) in
case of suretyships (other than upon first demand), such Lender will take into
consideration permissible objections or defenses relating to the underlying
commercial contract with the beneficiary to the extent that such Borrower,
after having been advised of the receipt of a payment demand, has promptly
given written evidence thereof to such Lender, in order that it can transmit
the same to the beneficiary of such Foreign Credit Instrument.


 


(ii)                                  Each
Borrower shall, upon demand from the relevant Foreign Issuing Lender,
irrevocably and unconditionally indemnify such Lender against any sum paid in
accordance with clause (i) above under a Foreign Credit Instrument issued
by such Lender at the request of such Borrower and against all other
liabilities, reasonable costs (including any costs incurred in funding any
amount paid by such Lender under or in connection with such Foreign Credit
Instrument), claims, losses and expenses which such Lender may at any time
(whether before, on or after the Foreign Trade Maturity Date) reasonably incur
or sustain in connection with or arising out of any such Foreign Credit
Instrument.


 


(iii)                               If
a Foreign Issuing Lender has made payment to another Foreign Issuing Lender in
accordance with Section 2.6(s), such Lender shall, in addition to any
right assigned to it against the relevant Borrower in connection with such
payment, be entitled to demand from such Borrower to be indemnified against any
such payment in accordance with clause (ii) above.


 


(iv)                              Each
Borrower agrees that if (A) it has requested the issuance of a surety
payable upon first demand with respect to an obligation in the underlying
contract (governed by German law) which provides for warranty and/or
performance obligations to be secured by means of a Foreign Credit Instrument
and (B) the classification of such obligation to provide for such surety
payable upon first demand as an individual agreement between the relevant
counterparties is disputed (clauses (A) and (B) together, the “Invalid
First Demand Feature”), any invalidity of the underlying contract, the
instruction to issue such Foreign Credit Instrument or of the Foreign Credit
Instrument itself resulting from the Invalid First Demand Feature shall be
disregarded for any purposes under and in connection with this Agreement, in
particular in connection with the indemnity provided for in this Section 2.6(h),
and that it will refrain (x) from taking any steps of any kind which are based
on the Invalid First Demand Feature and which are destined to hinder the
relevant Foreign Issuing Lender from fulfilling its obligations under and in
connection with such Foreign Credit Instrument in compliance with its terms and
(y) from disputing any reimbursement claims based on the Invalid First Demand
Feature, unless it provides such Foreign Issuing Lender with obvious and
undisputable documentary evidence for a fraudulent demand under such Foreign
Credit Instrument enabling and giving such Lender the right to refuse to honor
such a demand.


 


(i)                                     Reversal
of Foreign Credit Instruments.  (i) 
Each Foreign Issuing Lender will notify the Foreign Trade Facility Agent on
each Business Day about any expiration or reduction of the Face Amount of any
Foreign Credit Instrument or Counter-Guarantee issued by it which became
effective the


 


49





















 


preceding Business Day (the “Foreign
Credit Instrument Termination Date”) (a “Utilization Reduction Notice”).  With respect to:


 


(A)                              a Foreign Credit
Instrument (other than a Counter-Guarantee or an Indirect Foreign Credit
Instrument) which under its terms expires without any doubt if no demand has
been received by such Foreign Issuing Lender on or before a specified expiry
date, such Foreign Issuing Lender will, on the next Business Day following the
expiry date, give a Utilization Reduction Notice, unless the terms of such
Foreign Credit Instrument provide that it shall be governed in accordance with
the laws of any country other than a country which has been a member state of
the European Union as of December 2002 (in which case clause (B) below
shall apply mutatis  mutandis);


 


(B)                                a Foreign Credit
Instrument (other than a Counter-Guarantee or an Indirect Foreign Credit
Instrument) which, under its terms either does not provide for a specific
expiry date or does not otherwise expire without any doubt if no demand for
payment has been received by such Foreign Issuing Lender on or before a definite
expiry date or in the case of a release of a Foreign Credit Instrument before
the expiry date specified therein, such Foreign Issuing Lender will give a
Utilization Reduction Notice (1) as and when the original of the Foreign
Credit Instrument including all amendments, if any, is being received by it
from the beneficiary or the relevant Borrower, or (2) after having
received any explicit notice of release from the beneficiary in form and
substance in accordance with the form provided in Schedule 2.6(i);


 


(C)                                a Counter-Guarantee,
such Foreign Issuing Lender will give a Utilization Reduction Notice only upon
being unconditionally discharged in writing from any respective liability by
the Indirect Foreign Issuing Lender, or upon such Foreign Issuing Lender having
paid the amount available under the Counter-Guarantee to the Indirect Foreign
Issuing Lender, provided that if the Foreign Issuing Lender has been
prevented from effecting such payment without delay, the Utilization Reduction
Notice is subject to any assertion of damages on account of delay by the
Indirect Foreign Issuing Lender;


 


(D)                               a Foreign Credit
Instrument (other than a Counter-Guarantee) issued in connection with legal
proceedings in Germany, such Foreign Issuing Lender will give a Utilization Reduction
Notice only upon receipt of the original of the Foreign Credit Instrument for
discharge from the beneficiary or upon the beneficiary’s consent to the
discharge or upon establishment of the expiry of the Foreign Credit Instrument
by an executory order according to §109(2) of the German Code of Civil
Procedure;


 


(E)                                 a Foreign Credit
Instrument (including a Counter-Guarantee where the related Indirect Foreign
Credit Instrument is), expressly subject to the Uniform Rules for Demand
Guarantees of the International Chamber of Commerce in Paris, such Foreign
Issuing Lender will give a Utilization Reduction Notice if under said rules a
reversal of a letter of credit or guarantee would have to be made;


 


(F)                                 reductions of a
Foreign Credit Instrument or an Indirect Foreign Credit Instrument /
Counter-Guarantee, such Foreign Issuing Lender will give a Utilization
Reduction Notice only if (1) the terms and conditions of any reduction
clause of the terms of the Foreign Credit Instrument are, without any doubt,
complied with or if the beneficiary or, in the case of an Indirect Foreign
Credit Instrument, the Indirect Foreign Issuing Lender has certified in writing
and unconditionally the reduction of the Foreign Credit Instrument or
Counter-Guarantee respectively or (2) the Foreign Issuing Lender has
effected partial payment pursuant to a demand; and


 


50





















 


(G)                                any Foreign Credit
Instrument in relation to which such Foreign Issuing Lender has effected full
payment pursuant to a demand so that the beneficiary would not be entitled to
claim any further payment, such Foreign Issuing Lender will give a Utilization
Reduction Notice.


 


(ii)                                  If
a claim under a Foreign Credit Instrument is lodged with the relevant Foreign
Issuing Lender after such Foreign Issuing Lender has given a Utilization
Reduction Notice with respect to such Foreign Credit Instrument:


 


(A)                              such Foreign Issuing
Lender shall effect payment only if such payment is expressly authorized by the
relevant Borrower or ordered by a court decision, enforceable in the country
where it was rendered; and


 


(B)                                the relevant Borrower
shall (1) indemnify such Foreign Issuing Lender in accordance with Section 2.6(h) and
(2) pay to such Foreign Issuing Lender an amount equal to the Foreign
Credit Commission such Lender would have received if the relevant Foreign
Credit Instrument would have been outstanding from the date the relevant
Utilization Reduction Notice has been given until the date payment is made by
such Borrower to the Foreign Issuing Lender in accordance with Section 2.6(h) minus
the amount of the corresponding Foreign Credit Commitment Fee paid to such
Foreign Issuing Lender pursuant to Section 2.6(m) in respect of such
Foreign Credit Instrument for that period.


 


(iii)                               From
and including the day the Utilization Reduction Notice is made, the Foreign
Trade Facility Agent and the relevant Foreign Issuing Lender shall treat each
Foreign Credit Instrument subject to such Utilization Reduction Notice for any
calculations under this Agreement, as non-existing or, as the case may be, as
reduced as specified in the Utilization Reduction Notice, provided that,
for the purpose of calculating the fees in respect of the Foreign Trade
Facility pursuant to Section 2.6(n), such Foreign Credit Instrument shall
in any case be treated as non-existing, or, as the case may be, as reduced from
the day following the Foreign Credit Instrument Termination Date.


 


(j)  Fronted Foreign Credit Instruments.  (i)  If a Foreign Credit Instrument for
which a Utilization Request has been made shall be issued as a Fronted Foreign
Credit Instrument, the relevant Borrower may request a specific Foreign Issuing
Lender to act as Fronting Lender with respect to such Fronted Foreign Credit
Instrument and, if no specific Foreign Issuing Lender is nominated by the
Borrower as Fronting Lender, the Foreign Issuing Lender which has the Foreign
Trade Commitment with the lowest percentage of utilization shall be requested
to act as Fronting Lender with respect to such Fronted Foreign Credit
Instrument.  In case the Foreign Issuing
Lender so determined is not in a position to accept such request due to
internal policies or insufficient credit lines for the other Foreign Issuing
Lenders which would act as Fronting Guarantors, it shall promptly inform such
Borrower and the Foreign Trade Facility Agent accordingly.  The Foreign Trade Facility Agent shall then,
unless requested otherwise by such Borrower, forward the request to all other
Foreign Issuing Lenders.  The Foreign
Issuing Lender whose acceptance will reach the Foreign Trade Facility Agent
first shall then act as Fronting Lender with respect to the requested Fronting
Foreign Credit Instrument.


 


(ii)                                  The
Foreign Trade Facility Agent shall, with a view to arrange for an equal
utilization of each of the Foreign Trade Commitments and in consent with the
Fronting Lender, select certain of the Foreign Issuing Lenders to provide
Counter-Guarantees to the Fronting Lender with respect to its claim for
indemnification against the relevant Borrower pursuant to clause (iii) below
(each such Foreign Issuing Lender a “Fronting Guarantor”), provided
that no Foreign Issuing Lender so selected is required to act as Fronting
Guarantor if this would not be in accordance with its internal policies.  Each such Fronting Guarantor shall be deemed
for all purposes hereof to have issued a Counter-Guarantee to the Fronting
Lender for the amount counter-guaranteed by it and, with respect to the
determination of the


 


51





















 


utilization of the Foreign
Trade Commitment of the Fronting Lender only, the amount not covered by
Counter-Guarantees shall be treated as utilized.


 


(iii)                               The
Fronting Lender shall issue a Fronted Foreign Credit Instrument to the respective
beneficiary in its own name.  In the
event a Fronting Lender receives a request for payment under any Fronted
Foreign Credit Instrument issued by it, it shall promptly inform the relevant
Borrower, the Foreign Trade Facility Agent and the respective Fronting
Guarantors thereof and the Fronting Guarantors shall reimburse the Fronting
Lender under the respective Counter-Guarantees accordingly and such Borrower
shall indemnify the Fronting Guarantors and the Fronting Lender in accordance
with Section 2.6(h).


 


(k)  Joint Signature Foreign Credit Instruments.  (i)  If a Foreign Credit Instrument for
which a Utilization Request has been made shall be issued as a Joint Signature
Foreign Credit Instrument, then the relevant Borrower will approach the
relevant beneficiary to win its preparedness to accept a Joint Signature
Foreign Credit Instrument.  In case of
the beneficiary’s acceptance, the Foreign Trade Facility Agent will, in close
coordination with such Borrower and taking account of the allocation rules pursuant
to Section 2.6(f), select the relevant Foreign Issuing Lenders (the “Joint
Foreign Issuing Lenders”) prepared to issue the Joint Signature Foreign
Credit Instrument and acceptable to the beneficiary.


 


(ii)                                  The
Joint Foreign Issuing Lenders so selected will then appoint one of the Joint
Foreign Issuing Lenders to act as their agent (the “Joint Foreign Trade
Facility Agent”) in connection with the Joint Signature Foreign Credit
Instrument acting on terms to be agreed between the Joint Foreign Issuing Lenders
and the Joint Foreign Trade Facility Agent pursuant to an agreement
substantially in the form of Schedule 2.6(k).  The Joint Foreign Trade Facility Agent shall
be responsible for coordinating the Joint Foreign Issuing Lenders and shall
represent the Joint Foreign Issuing Lenders vis-à-vis the
beneficiary, and the Joint Foreign Trade Facility Agent shall be responsible
for processing the Joint Signature Foreign Credit Instrument.  In such capacity, the Joint Foreign Trade
Facility Agent shall give to the Foreign Trade Facility Agent the notices
otherwise to be given by each Foreign Issuing Lender hereunder, in particular
under Sections 2.6(i), 2.6(m) and 2.6(n)(i).


 


(iii)                               Any
liability of the Joint Foreign Issuing Lenders under a Joint Signature Foreign
Credit Instrument, and the rights resulting from honoring a demand made
thereunder, shall be several.  Each Joint
Foreign Issuing Lender shall participate in an amount demanded by the
beneficiary under a Joint Signature Foreign Credit Instrument in the proportion
the amount of the Joint Signature Foreign Credit Instrument allocated to it
bears to the total Euro Equivalent of such Joint Signature Foreign Credit
Instrument.  The Foreign Trade Facility
Agent shall, with respect to the determination of the utilization of the
individual Foreign Trade Commitment of each Joint Foreign Issuing Lender and
with respect to the calculation of any Excess Amount, treat the participation
of each Joint Foreign Issuing Lender in the Joint Signature Foreign Credit
Instrument as if each Joint Foreign Issuing Lender had issued a Foreign Credit
Instrument in the amount equal to the amount of its proportion in the Joint
Signature Foreign Credit Instrument.


 


(l)  Determination of Euro Equivalent.  On each Business Day on which at least one
Foreign Credit Instrument is outstanding under this Agreement, or there is any
other Foreign Trade Exposure, the Foreign Trade Facility Agent shall determine
the amount of the Euro Equivalent of all outstanding Foreign Credit Instruments
and unreimbursed Foreign Credit Disbursements (in each case adjusted to reflect
any repayment, prepayment or reversal of any relevant Foreign Credit
Instrument) on the basis of the foreign exchange rates for the previous
Business Day which shall be determined as follows:


 


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(i)                                     if the conversion
rate of the respective currency into Euros is published on the internet page ”www.db-markets.com”
as “Foreign Exchange Fixing Rates” (on the sub-page ”Historical Rates”,
further sub-page ”Foreign Exchange Fixing Rates”) or on any other internet
page replacing such internet page, the calculation shall be based on the
rates displayed on such internet page; and


 


(ii)                                  if the conversion
rate of the respective currency into Euros is not published on the internet page ”www.db-markets.com”
as “Foreign Exchange Fixing Rates” (on the sub-page ”Historical Rates”,
further sub-page ”Foreign Exchange Fixing Rates”) or on any other internet
page replacing such internet page, the calculation shall be based on the
previous month’s foreign exchange rates published on the same internet page on
the sub-page ”Historical Rates”, further sub-page ”End-of-Month
prices”.


 


If the relevant exchange rate
cannot be determined in accordance with clauses (i) or (ii) above,
the Foreign Trade Facility Agent shall determine the appropriate exchange rate
in its reasonable discretion.


 


(m)  Cash Cover; Fronting Cover.  (i)  If, pursuant to a Daily Report
issued on the last Business Day of any calendar month (each a “Rebasing Date”),
the aggregate Euro Equivalent of the Foreign Trade Exposure of a Foreign
Issuing Lender exceeds the amount of the Foreign Trade Commitment of such
Lender by more than 5% (the exceeding amount being the “Excess Amount”),
the relevant Foreign Issuing Lender (the “Affected Foreign Issuing Lender”)
may request in writing from the relevant Borrower, within a period of five
Business Days following receipt of the respective Daily Report, Cash Cover with
respect to such Excess Amount, and such Borrower shall, within a period of
three Business Days following receipt of the demand from the Affected Foreign
Issuing Lender to receive Cash Cover, either provide for Cash Cover in
accordance with clause (v) below or request from such Affected Foreign Issuing
Lender that it shall, with respect to certain selected Foreign Credit
Instruments issued by such Affected Foreign Issuing Lender, act as Fronting
Lender for another Foreign Issuing Lender nominated by such Borrower in its
request (provided that such Foreign Issuing Lender has a sufficient
unused Foreign Trade Commitment) which shall act with respect to the relevant
Foreign Credit Instruments as Fronting Guarantor in accordance with Section 2.6(j)
so that, following the implementation of the fronting structure, the aggregate
Euro Equivalent of the Foreign Trade Exposure of such Affected Foreign Issuing
Lender which is not covered by Fronted Foreign Credit Instruments does not
exceed the amount of its respective Foreign Trade Commitment (the “Fronting
Cover”).  Such Affected Foreign
Issuing Lender shall decide in its sole discretion whether it wants to accept
Fronting Cover and, if Fronting Cover is rejected, the relevant Borrower shall
provide for Cash Cover within three Business Days following the receipt of a
notice from such Affected Foreign Issuing Lender that it does not accept
Fronting Cover.


 


(ii)                                  If
an Affected Foreign Issuing Lender elects to receive Fronting Cover, such
Affected Foreign Issuing Lender and the relevant Borrower shall inform the Foreign
Trade Facility Agent and the Administrative Agent accordingly and such fronting
shall be implemented in accordance with Section 2.6(j) within three
Business Days.


 


(iii)                               Clauses
(i) and (ii) above shall be applicable mutatis  mutandis
if, in respect of any Rebasing Date subsequent to a Rebasing Date in respect of
which Cash Cover or Fronting Cover had been provided, the Excess Amount has
increased by an amount equal to at least 5% of the relevant Affected Foreign
Issuing Lender’s Foreign Trade Commitment due to fluctuation of currency
exchange rates.


 


(iv)                              If
in respect of any Rebasing Date subsequent to a Rebasing Date in respect of
which Cash Cover or Fronting Cover had been provided pursuant to clause (i) above
to an Affected


 


53





















 


Foreign Issuing Lender, the Excess Amount (as shown in
the relevant Daily Report) with respect to such Affected Foreign Issuing Lender
has been reduced to zero (either through fluctuation of currency exchange rates
or through the reduction or expiration of any Foreign Credit Instruments issued
by such Affected Foreign Issuing Lender), such Lender shall release the whole
or relevant part of the Cash Cover or, as the case may be, the Fronting Cover
within three Business Days of the relevant Rebasing Date.


 


(v)                                 If
a Borrower is obliged to provide for Cash Cover under this Agreement, such
Borrower shall pay the relevant amount for which it shall provide Cash Cover (A) in
the case of clause (i) above, in Euros and (B) in all other cases (if
not agreed otherwise with the relevant Foreign Issuing Lender receiving the
Cash Cover) in the currency of the respective Foreign Credit Instrument for
which Cash Cover has to be provided to an account of the relevant Foreign
Issuing Lender (such deposited amount, the “Cash Cover”) notified by such
Lender to the Foreign Trade Facility Agent and such Borrower for such
purpose.  Such account shall be an
interest bearing account (subject to Section 2.6(b)(v), with the amount of
interest to be determined by such Foreign Issuing Lender in accordance with its
standard business practice) in the name of the relevant Borrower and such
account shall be pledged to the respective Foreign Issuing Lender on the basis
of a pledge agreement in form and substance reasonably satisfactory to such
Foreign Issuing Lender.


 


(vi)                              Notwithstanding
the obligation of any Foreign Issuing Lender to release any Cash Cover pursuant
to clause (iv) above, any Cash Cover provided by a Borrower with respect
to a specific Foreign Credit Instrument shall, unless otherwise agreed with
such Borrower, be released by the Foreign Issuing Lender that received such
Cash Cover together with accrued interest thereon to such Borrower as soon as
the Foreign Credit Instrument so collateralized has expired (the criteria under
Section 2.6(i) shall be applicable mutatis  mutandis).  If only some Foreign Credit Instruments for
which Cash Cover has been provided to a specific bank have expired or the
obligations under which have only expired in part, the Cash Cover shall be
released pro  rata.


 


(n)  Commissions and Fees.  (i)  Foreign Credit Commission.  Each Borrower agrees to pay, in accordance
with clause (vi) below, with respect to each Foreign Credit Instrument
requested by it, a commission (a “Foreign Credit Commission”) in an
amount equal to the greater of (A) €50 per annum and (B) the
Applicable Rate for Foreign Credit Instruments calculated on a daily basis on
the Euro Equivalent of the outstanding amount of such Foreign Credit
Instrument.  The Foreign Credit
Commission shall be paid in accordance with clause (vi) below in advance
for each calendar quarter.  In the case
of any adjustment of the amount of a Foreign Credit Instrument during a
calendar quarter (as the case may be, due to the issuance of a new Foreign
Credit Instrument, expiration, amendment, cancellation, extension, return or
otherwise), the calculation of the Foreign Credit Commission shall be revised
accordingly and, as the case may be, the relevant Foreign Issuing Lender shall
credit or debit the relevant amount against the next quarterly payment.  In the case of any adjustment to the
Applicable Rate during a calendar quarter, (x) the calculation of the Foreign
Credit Commission with respect to outstanding Foreign Credit Instruments shall
be revised accordingly and the relevant Foreign Issuing Lender shall credit or
debit the relevant amount against the next quarterly payment (it being
understood and agreed that any revision to the Foreign Credit Commitment due to
a change in the Applicable Rate for Foreign Credit Instruments shall be
calculated based on the Euro Equivalent of the aggregate outstanding amount of
Foreign Credit Instruments issued by such Lender on the date of such change in
Applicable Rate) and (y) with respect to any Foreign Credit Instrument issued
after any such change in Applicable Rate, the Foreign Credit Commission shall
be calculated at the Applicable Rate for Foreign Credit Instruments in effect
on the date of such issuance.  Where
credits or debits as contemplated by the two immediately preceding sentences
are not possible, the balance shall be paid by the respective Foreign Issuing
Lender or, as the case may be, the relevant Borrower to the Foreign Trade
Facility Agent for distribution to the respective recipient in accordance with
clause (vi) below.


 


54










 













 


(ii)                                  Foreign Credit Commitment Fee.  The Parent Borrower agrees to pay, or to
cause the relevant Borrower to pay, at the beginning of each calendar quarter
in accordance with clause (vi) below, to the Foreign Trade Facility Agent
for the account of each Foreign Issuing Lender, a commitment fee (a “Foreign
Credit Commitment Fee”) which shall accrue at the Applicable Rate on the
average daily unused amount of each Foreign Trade Commitment of such Lender
during the previous calendar quarter. 
For purposes of computing the Foreign Credit Commitment Fee, the Foreign
Trade Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Foreign Trade Exposure of such Lender.


 


(iii)                               Handling Fee.  Each
Borrower shall, with respect to the issuance or amendment of any Foreign Credit
Instrument by a Foreign Issuing Lender, pay to such Lender, at the beginning of
each calendar quarter in accordance with clause (vi) below, a handling fee
of €100 with respect to each Foreign Credit Instrument so issued, and €75 with
respect to each Foreign Credit Instrument so amended, by such Lender during the
previous calendar quarter (the “Foreign Credit Handling Fee”).


 


(iv)                              Fronting Fee.  With
respect to each issuance of a Fronted Foreign Credit Instrument requested by a
Borrower, such Borrower shall pay, in advance for each calendar quarter in
accordance clause (vi) below, a fronting fee in the amount of 0.125% per
annum on the Euro Equivalent of such Fronted Foreign Credit Instrument,
calculated in accordance with the general practice of such Lender on the amount
of such Fronted Foreign Credit Instrument which is subject to one or more
Counter-Guarantees (the “Foreign Credit Fronting Fee”).  With respect to any such calculation, the
last three sentences of clause (i) above shall apply mutatis  mutandis.


 


(v)                                 Other Fees and Expenses.  Each Borrower shall, within three Business
Days following written demand from a Foreign Issuing Lender that has issued a
Foreign Credit Instrument for such Borrower, reimburse such Lender for all
reasonable costs (including internal costs) and expenses (including legal fees)
incurred by such Lender and evidenced to such Borrower in connection with the handling
of any claims made against such Lender under any Foreign Credit Instrument
issued by it.


 


(vi)                              Payment of Foreign Credit Commission and Fees.  Each Foreign Issuing Lender shall notify the
Foreign Trade Facility Agent in writing about the amount of all fees payable by
any Borrower with respect to each calendar quarter (in the case of the Foreign
Credit Commission and any Foreign Credit Fronting Fee) or previous calendar
quarter (in the case of the Foreign Credit Handling Fee) not later than on the
fifth Business Day of each calendar quarter. 
In the case of each Foreign Issuing Lender, the notification needs to
include only the sum of all such fees payable to such Lender and the respective
amounts owing from each Borrower.  The
Foreign Trade Facility Agent shall calculate the Foreign Credit Commitment Fee
payable by the Borrowers with respect to the previous calendar quarter.  The Foreign Trade Facility Agent shall, not
later than the seventh Business Day of each calendar quarter, inform the Parent
Borrower in writing about the amount of the Foreign Credit Commitment Fee
payable with respect to the previous quarter and the aggregate amount of the
Foreign Credit Commission, Foreign Credit Handling Fee and Foreign Credit
Fronting Fee, as notified to it by the Foreign Issuing Lenders pursuant to the
first sentence of this clause (vi), and the Parent Borrower shall pay (or shall
cause the relevant Borrower to pay) such amounts to the Foreign Trade Facility
Agent for distribution to the Foreign Issuing Lenders not later than the fifth
Business Day following the receipt by the Parent Borrower of the notification
from the Foreign Trade Facility Agent.


 


(o)  Termination.  With respect to each Foreign Credit
Instrument issued and which is or under which claims are still outstanding on
the Foreign Trade Maturity Date, the relevant Foreign Issuing Lender may
(separately with respect to each such Foreign Credit Instrument), by written
notice to the relevant Borrower made not later than 30 days prior to the
Foreign Trade Maturity Date, require that such Borrower provide Cash Cover (or
other credit support satisfactory to such Lender) which shall then be


 


55





















 


provided by such Borrower no
later than the Foreign Trade Maturity Date. 
Section 2.6(b)(v) shall apply mutatis  mutandis.


 


(p)  Cancellation.  (i)  The Parent Borrower may, by giving
to the Administrative Agent, with a copy to the Foreign Trade Facility Agent,
not less than 15 days’ prior written notice, cancel the whole or any part
(being a minimum of €10,000,000) of the then unused Foreign Trade Commitments
without premium or penalty to the extent a ratable reduction of each Foreign
Issuing Lender’s Foreign Trade Commitment is possible with respect to the
amount so cancelled.


 


(ii)                                  If
any Foreign Issuing Lender claims a payment or indemnification from any
Borrower under Section 2.17, the Parent Borrower may, within 30 days
thereafter and by not less than 15 days’ prior written notice to the
Administrative Agent, with a copy to the Foreign Trade Facility Agent, cancel
such Foreign Issuing Lender’s unused Foreign Trade Commitment whereupon such
Foreign Issuing Lender shall cease to be obliged to issue further Foreign
Credit Instruments and its unused Foreign Trade Commitment shall be reduced to
zero.  The remaining amount of such
Foreign Issuing Lender’s Commitment shall be cancelled automatically in whole,
or, as the case may be, in part with the receipt by the Foreign Trade Facility
Agent of the Utilization Reduction Notice(s) with respect to the Foreign Credit
Instruments issued by such Foreign Issuing Lender and still outstanding.


 


(iii)                               Any
notice of cancellation given by the Parent Borrower pursuant to clause (i) or
(ii) above shall be irrevocable and shall specify the date upon which such
cancellation is to be made and the amount of such cancellation.


 


(iv)                              Cancelled
Foreign Trade Commitments cannot be reinstated.


 


(q)  Daily and Monthly Reports.  The Foreign Trade Facility Agent shall send
to the Foreign Issuing Lenders, the Parent Borrower and the Administrative
Agent, via e-mail to the addresses and persons notified for this purpose by
such Persons to the Foreign Trade Facility Agent, (i) on each Business
Day, a report (the “Daily Report”) (A) stating the Euro Equivalent
for all outstanding Foreign Credit Instruments as determined for such Business
Day, (B) listing, for each Foreign Issuing Lender, as of such Business
Day, the Euro Equivalent of the outstanding Foreign Credit Instruments issued
by such Lender and the percentage of each such Lender’s utilized Foreign Trade
Commitment, and (C) containing the further information about the
utilization of the Foreign Trade Facility as specified on Schedule 2.6(q),
and (ii) not later than the fifth Business Day of each calendar month, a
report stating all overdue Foreign Credit Instruments and all Foreign Credit
Instruments falling due within such month and the following calendar
month.  The Parent Borrower and each
Foreign Issuing Lender shall inform the Foreign Trade Facility Agent by 5:00 p.m.,
Düsseldorf time, on the fifth Business Day following receipt of a Daily Report
if it does not agree with any recordings in such Daily Report.


 


(r)  Unreimbursed Foreign Credit Disbursements.  Each Foreign Issuing Lender shall promptly
notify the Foreign Trade Facility Agent and the Administrative Agent of any
Foreign Credit Disbursement of such Lender that has not been reimbursed by or
on behalf of the relevant Borrower and shall include in such notice (i) the
date of the Foreign Credit Disbursement, (ii) the name of the relevant
Borrower and (iii) the amount (including the currency) of such Foreign
Credit Disbursement.


 


(s)  Sharing.  If any Foreign Issuing Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any Foreign Credit Disbursement resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Foreign Credit
Disbursements than the proportion received by any other Foreign Issuing Lender
in respect of its Foreign Credit Disbursement, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in
the Foreign Credit Disbursements of other Foreign Issuing Lenders to the extent


 


56





















 


necessary so that the benefit
of all such payments shall be shared by the Foreign Issuing Lenders ratably in
accordance with the aggregate amount of their respective Foreign Credit
Disbursements; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment
made by a Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Foreign Issuing Lender as consideration
for the assignment of or sale of a participation in any of its Foreign Trade
Commitments to any assignee or participant, other than to the Parent Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply).  Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Foreign Issuing Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against such Borrower
rights of set-off and counterclaim with respect to such participation as fully
as if such Lender were a direct creditor of such Borrower in the amount of such
participation.


 


SECTION 2.7.                       Funding
of Borrowings.  (a)  Each Lender
shall make each Loan (other than any Incremental Term Loan) to be made by it hereunder
on the proposed date thereof by wire transfer to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders, in immediately available funds, not later than 12:00 noon, New
York City time, in the case of fundings to an account in New York City, or
12:00 noon, local time, in the case of fundings to an account in another
jurisdiction; provided that Swingline Loans shall be made as provided in
Section 2.4.  The Administrative
Agent will make such Loans available to the relevant Borrower by promptly
crediting the amounts so received, in like funds, to an account designated by
such Borrower in the applicable Borrowing Request, which account must be in the
name of such Borrower and, as applicable, in London or in the financial center
of the country of the currency of the Loan; provided that ABR Domestic
Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.5(e) shall be remitted by the Administrative
Agent to the applicable Issuing Lender. 
Any funding of Incremental Term Loans shall be made pursuant to such
procedures as shall be agreed to by the Parent Borrower, the relevant
Incremental Term Lenders and the Administrative Agent.


 


(b)  Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the applicable Borrower a corresponding
amount in the required currency.  In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and such
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon in such currency, for each day
from and including the date such amount is made available to such Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in
the case of such Lender, the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent to represent its cost of overnight
or short-term funds in the relevant currency (which determination shall be
conclusive absent manifest error) or (ii) in the case of a Borrower, the
interest rate applicable to such Borrowing. 
If such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender’s Loan included in such Borrowing.


 


SECTION 2.8.                       Interest
Elections.  (a)  Each Revolving
Borrowing and Term Loan Borrowing initially shall be of the Type specified in
the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing,
shall have an initial Interest Period as specified in such Borrowing
Request.  Thereafter, a Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest
Periods therefor, all as


 


57





















 


provided in this Section.  A
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.  Notwithstanding the foregoing, a Borrower may
not (i) elect to convert the currency in which any Loans are denominated, (ii) elect
to convert Qualified Global Currency Loans from Eurocurrency Loans to ABR
Loans, (iii) elect an Interest Period for Eurocurrency Loans that does not
comply with Section 2.2(d), (iv) elect to convert any ABR Loans to
Eurocurrency Loans that would result in the number of Eurocurrency Borrowings
exceeding the maximum number of Eurocurrency Borrowings permitted under Section 2.2(c),
(v) elect an Interest Period for Eurocurrency Loans unless the aggregate
outstanding principal amount of Eurocurrency Loans (including any Eurocurrency
Loans made to such Borrower in the same currency on the date that such Interest
Period is to begin) to which such Interest Period will apply complies with the
requirements as to minimum principal amount set forth in Section 2.2(c) or
(vi) elect to convert or continue any Swingline Borrowings.


 


(b)  To
make an election pursuant to this Section, a Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.3 if such Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. 
Each such telephonic Interest Election Request shall be irrevocable and
shall be confirmed promptly by delivery to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative
Agent and signed by the relevant Borrower.


 


(c)  Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.2 and paragraph (a) of this
Section: (i) the Borrowing to which such Interest Election Request
applies; (ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day; (iii) whether
the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
and (iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election.  If any such Interest Election
Request requests a Eurocurrency Borrowing but does not specify an Interest
Period, then the relevant Borrower shall be deemed to have selected an Interest
Period of one month’s duration.


 


(d)  Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each relevant Lender of the details thereof and of such Lender’s
portion of each resulting Borrowing.


 


(e)  If
the relevant Borrower fails to deliver a timely Interest Election Request with
respect to a Eurocurrency Borrowing denominated in Dollars prior to the end of
the Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing.  If the
relevant Borrower fails to deliver a timely Interest Election Request with
respect to a Eurocurrency Borrowing denominated in a Qualified Global Currency
prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall automatically continue as a Eurocurrency Loan having an
Interest Period of one month. 
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Parent Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing denominated in
Dollars may be converted to or continued as a Eurocurrency Borrowing, (ii) unless
repaid, each Eurocurrency Borrowing denominated in Dollars shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto and (iii) no
Borrowing denominated in a Qualified Global Currency having an Interest Period
in excess of one month may be made or continued.


 


58





















 


SECTION 2.9.                       Termination
and Reduction of Commitments.  (a) 
Unless previously terminated, (i) the Term Loan Commitments shall
terminate at 1:00 p.m., New York City time, on the last day of the Term
Loan Commitment Period, (ii) the Domestic Revolving Commitments shall
terminate on the Domestic Revolving Maturity Date, (iii) the Global
Revolving Commitments shall terminate on the Global Revolving Maturity Date and
(iv) the Foreign Trade Commitments shall terminate on the Foreign Trade
Maturity Date.


 


(b)  The
Parent Borrower may at any time terminate, or from time to time reduce, the
Commitments of any Class; provided that (i) each reduction of the
Commitments (other than Foreign Trade Commitments) of any Class shall be
in an amount that is an integral multiple of $1,000,000 and not less than
$10,000,000, (ii) the Parent Borrower shall not terminate or reduce the
Revolving Commitments if, after giving effect to any concurrent prepayment of
the Revolving Loans in accordance with Section 2.12, (A) the Total
Domestic Exposure would exceed the total Domestic Revolving Commitments, (B) the
Total Global Exposure would exceed the total Global Revolving Commitments or (C) the
Total Foreign Trade Exposure would exceed the total Foreign Trade Commitments
and (iii) each reduction of Foreign Trade Commitments shall be made in
accordance with Section 2.6(p).


 


(c)  The
Parent Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section,
at least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Parent Borrower
pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Revolving Commitments delivered by the Parent
Borrower may state that such notice is conditioned upon the effectiveness or
closing of other credit facilities, debt financings or Dispositions, in which
case such notice may be revoked by the Parent Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.  Any
termination or reduction of the Commitments shall be permanent.  Each reduction of the Commitments of any Class shall
be made ratably among the Lenders in accordance with their respective
Commitments of such Class.


 


SECTION 2.10.                 Evidence
of Debt.  (a)  Each Lender shall
maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of each Borrower to such Lender resulting from each
Loan made, and each Foreign Credit Instrument issued, by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.


 


(b)  The
Administrative Agent, on behalf of the Borrowers, shall maintain the Register
pursuant to Section 9.4(c) and a subaccount for each Lender in which
it shall record (i) the amount of each Loan made hereunder (whether or not
evidenced by a promissory note), the Class and Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal
and/or interest due and payable or to become due and payable from each Borrower
to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.  The Foreign Trade
Facility Agent shall maintain records in which shall be recorded all relevant
details about each Foreign Credit Instrument issued hereunder and, upon the
request of the Administrative Agent, the Foreign Trade Facility Agent shall
make such records (or copies thereof) available to the Administrative Agent.


 


(c)  The
entries made in the accounts maintained pursuant to paragraph (a) or (b) of
this Section shall be prima  facie evidence of the existence
and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans in accordance with the terms of this Agreement.


 


59





















 


(d)  Any
Lender may request that Loans of any Class made by it be evidenced by a
promissory note.  In such event, each
applicable Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender and its registered assigns
and in a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such
promissory note and interest (and premium, if any) thereon shall at all times
(including after assignment pursuant to Section 9.4) be represented by one
or more promissory notes in such form payable to such payee and its registered
assigns.


 


SECTION 2.11.                 Repayment
of Loans.  (a)  The Parent
Borrower shall repay the Initial Term Loans on each date set forth below in an
amount equal to (i) the percentage set forth below opposite such date
multiplied by (ii) the aggregate principal amount of Initial Term Loans
actually drawn by the Parent Borrower:


 




	
  Date

  	
   

  	
  Percentage

  	
   

  
	
  June 30, 2006

  	
   

  	
  0.67

  	
  %

  
	
  September 30, 2006

  	
   

  	
  0.67

  	
  %

  
	
  December 31, 2006

  	
   

  	
  0.66

  	
  %

  
	
  March 31, 2007

  	
   

  	
  1.25

  	
  %

  
	
  June 30, 2007

  	
   

  	
  1.25

  	
  %

  
	
  September 30, 2007

  	
   

  	
  1.25

  	
  %

  
	
  December 31, 2007

  	
   

  	
  1.25

  	
  %

  
	
  March 31, 2008

  	
   

  	
  2.50

  	
  %

  
	
  June 30, 2008

  	
   

  	
  2.50

  	
  %

  
	
  September 30, 2008

  	
   

  	
  2.50

  	
  %

  
	
  December 31, 2008

  	
   

  	
  2.50

  	
  %

  
	
  March 31, 2009

  	
   

  	
  3.75

  	
  %

  
	
  June 30, 2009

  	
   

  	
  3.75

  	
  %

  
	
  September 30, 2009

  	
   

  	
  3.75

  	
  %

  
	
  December 31, 2009

  	
   

  	
  3.75

  	
  %

  
	
  March 31, 2010

  	
   

  	
  17.00

  	
  %

  
	
  June 30, 2010

  	
   

  	
  17.00

  	
  %

  
	
  September 30, 2010

  	
   

  	
  17.00

  	
  %

  
	
  Term Loan Maturity Date

  	
   

  	
  17.00

  	
  %

  






 


(b)  The
Parent Borrower shall repay Incremental Term Loans in consecutive installments
(which shall be no more frequent than quarterly) as specified in the
Incremental Facility Activation Notice pursuant to which such Incremental Term
Loans were made; provided that the weighted average life of each
Incremental Term Loan shall be no shorter than the remaining weighted average
life of the other Term Loans.


 


(c)  The
Parent Borrower shall repay (i) the then unpaid principal amount of the
Domestic Revolving Loans on the Domestic Revolving Maturity Date and (ii) the
then unpaid principal amount of each Swingline Loan on the earlier of the
Domestic Revolving Maturity Date and the first date after such Swingline Loan
is made that is the 15th or last day of a calendar month and is at least two
Business Days after such Swingline Loan is made; provided that on each
date that a Domestic Revolving Borrowing is made, the Parent Borrower shall
repay all Swingline Loans then outstanding.


 


(d)  Each
Borrower shall repay the then unpaid principal amount of the Global Revolving
Loans on the Global Revolving Maturity Date.


 


60





















 


SECTION 2.12.                 Prepayment
of Loans.  (a)  Each Borrower
shall have the right at any time and from time to time to prepay any Borrowing
in whole or in part, subject to the requirements of this Section, provided
that Canadian B/As may not be optionally prepaid.


 


(b)  If
on any date any Net Proceeds are received by or on behalf of the Parent
Borrower or any Subsidiary in respect of any Prepayment Event, the Parent
Borrower shall, within ten Business Days after such Net Proceeds are received,
apply an amount equal to the aggregate amount of such Net Proceeds, first,
to prepay Term Loans and, second, to reduce permanently the Term Loan
Commitments; provided that, in the case of any event described in clause
(a) or (b) of the definition of the term Prepayment Event, if the
Parent Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer to the effect that the Parent Borrower and the Subsidiaries
intend to apply the Net Proceeds from such event (“Reinvestment Net Proceeds”),
within 360 days after receipt of such Net Proceeds, to make Permitted
Acquisitions or Investments permitted by Section 6.5 or acquire real
property, equipment or other assets to be used in the business of the Parent
Borrower and the Subsidiaries, and certifying that no Default or Event of
Default has occurred and is continuing, then no prepayment or Commitment
reduction shall be required pursuant to this paragraph in respect of such event
except to the extent of any Net Proceeds therefrom that have not been so
applied by the end of such 360-day period, at which time a prepayment shall be
required in an amount equal to the Net Proceeds that have not been so
applied.  Notwithstanding the foregoing,
from and after the date during any fiscal year of the Parent Borrower on which
the aggregate gross proceeds (inclusive of amounts of the type described in the
first parenthetical of Section 6.6(d)) from Dispositions pursuant to Section 6.6(d) received
during such fiscal year exceed 10% of Total Consolidated Assets, the Net
Proceeds from each subsequent Prepayment Event occurring during such fiscal
year resulting from Dispositions pursuant to Section 6.6(d) (and a
ratable amount of Net Proceeds from any Prepayment Event that first causes the
aforementioned 10% threshold to be exceeded, which ratable amount shall be
determined by reference to a fraction, the numerator of which shall be the
portion of the gross proceeds from such Prepayment Event representing the
excess above such 10% threshold and the denominator of which shall be the
aggregate gross proceeds from such Prepayment Event) may not be treated as
Reinvestment Net Proceeds.


 


(c)  If
on any Determination Date relating to the Global Revolving Facility, the Total
Global Exposure exceeds 105% of the total Global Revolving Commitments, the
Parent Borrower shall, without notice or demand, within three Business Days
after such Determination Date, prepay (or cause the relevant Foreign Subsidiary
Borrower to prepay) Revolving Borrowings in an aggregate amount such that,
after giving effect thereto, (i) the Total Global Exposure does not exceed
the total Global Revolving Commitments and (ii) the aggregate outstanding
principal amount of all Canadian Dollar Loans does not exceed the total
Canadian Commitments.  If on any
Determination Date relating to the Domestic Revolving Facility, the Total
Domestic Exposure exceeds 105% of the total Domestic Revolving Commitments, the
Parent Borrower shall, without notice or demand, within three Business Days
after such Determination Date, prepay Revolving Borrowings or Swingline
Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral
in an account with the Administrative Agent pursuant to Section 2.5(j)) in
an aggregate amount such that, after giving effect thereto, the Total Domestic
Exposure does not exceed the total Domestic Revolving Commitments.


 


(d)  A
Borrower shall notify the Administrative Agent by telephone (confirmed by
telecopy promptly thereafter) of any prepayment hereunder (i) in the case
of prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m., New
York City time (or 11:00 a.m., London time, as applicable), three Business
Days before the date of prepayment, (ii) in the case of prepayment of an
ABR Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of prepayment or (iii) in the case of prepayment of a
Swingline Loan, not later than 12:00 noon, New York City time, on the date of
prepayment.  Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case


 


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of a mandatory prepayment, a
reasonably detailed calculation of the amount of such prepayment; provided
that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as contemplated
by Section 2.9, then such notice of prepayment may be revoked if such
notice of termination is revoked in accordance with Section 2.9.  Promptly following receipt of any such notice
(other than a notice relating solely to Swingline Loans), the Administrative
Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.2, except as necessary
to apply fully the required amount of a mandatory prepayment.


 


SECTION 2.13.                 Certain
Payment Application Matters.  (a) 
Each repayment or prepayment of a Borrowing shall be applied ratably to the
Loans included in the repaid Borrowing. 
It is understood that, in the case of Global Revolving Loans, the
relevant Borrower may select the particular currency of Loans to be prepaid,
and such prepayment shall then be applied ratably to such Loans.  Repayments and prepayments of Term Loan
Borrowings shall be accompanied by accrued interest on the amount repaid.


 


(b)  Any
mandatory prepayment of Term Loans shall be allocated pro  rata
among the Initial Term Loans and any Incremental Term Loans based on the
aggregate principal amount of outstanding Borrowings of each such Class.  Any optional prepayment of Term Loans shall be
allocated as directed by the Parent Borrower to the Initial Term Loans and/or
the Incremental Term Loans.  Amounts
prepaid on account of the Term Loans may not be reborrowed.


 


(c)  Each
prepayment shall be applied to the installments thereof, first to any
remaining scheduled installments due prior to the first anniversary of the date
of such prepayment (applied pro  rata to such remaining
installments) and, second, to the remaining scheduled installments due
on or after the first anniversary of the date of such prepayment (applied pro
rata to such remaining installments).


 


SECTION 2.14.                 Fees.  (a)  The Parent Borrower agrees to pay,
or to cause the relevant Borrower to pay, to the Administrative Agent for the
account of each relevant Lender a commitment fee, which shall accrue at the
Applicable Rate on the average daily unused amount of each Commitment (other
than the Foreign Trade Commitment) of such Lender during the period from and
including the Effective Date to but excluding the date on which such Commitment
terminates.  Accrued commitment fees
shall be payable in arrears on the last day of March, June, September and December of
each year and on the date on which such Commitments terminate, commencing on
the first such date to occur after the date hereof.  Commitment fees shall be computed on the
basis of a year of 365 days (or 366 days in a leap year) and shall be payable
for the actual number of days elapsed (including the first day but excluding
the last day).  For purposes of computing
commitment fees in respect of the Commitments, (i) the Domestic Revolving
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Domestic Revolving Loans and LC Exposure of such Lender (and the
Swingline Exposure of such Lender shall be disregarded for such purpose), (ii) the
Global Revolving Commitment of a Lender shall be deemed to be used to the
extent of the outstanding Global Revolving Loans of such Lender and (iii) the
Term Loan Commitment of a Lender shall be deemed to be used to the extent of
the outstanding Initial Term Loans of such Lender.  For the avoidance of doubt, the commitment
fee in respect of the Foreign Trade Facility is set forth in Section 2.6(n)(ii).


 


(b)  Each
Borrower agrees to pay:


 


(i)                                     to the
Administrative Agent for the account of each Domestic Revolving Lender a
participation fee with respect to its participations in Letters of Credit,
which shall accrue at the same Applicable Rate as interest on Eurocurrency
Revolving Loans on the average daily amount of such Lender’s LC Exposure
(excluding any portion thereof attributable to unreimbursed LC


 


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Disbursements) during the period from and including the Effective Date
to but excluding the later of the date on which such Lender’s Domestic
Revolving Commitment terminates and the date on which such Lender ceases to
have any LC Exposure;


 


(ii)                                  to the applicable
Issuing Lender a fronting fee, which shall accrue at the rate of 0.125% per
annum on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date of
termination of the Domestic Revolving Commitments and the date on which there
ceases to be any LC Exposure, as well as such Issuing Lender’s standard fees
with respect to the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder; and


 


(iii)                               to the applicable
Foreign Issuing Lender, the fees and commissions set forth in Section 2.6(n).


 


Participation fees and
fronting fees pursuant to clauses (i) and (ii) above accrued through
and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Domestic Revolving
Commitments terminate and any such fees accruing after the date on which the
Domestic Revolving Commitments terminate shall be payable on demand.  Except as otherwise provided in Section 2.6(n),
any other fees payable to the applicable Issuing Lender or Foreign Issuing
Lender pursuant to this paragraph shall be payable within 10 days after
demand.  All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).  For the
purposes of calculating the average daily amount of the LC Exposure for any
period under this Section 2.14(b), the average daily amount of the
Alternative Currency LC Exposure for such period shall be calculated by
multiplying (x) the average daily balance of each Alternative Currency Letter
of Credit (expressed in the currency in which such Alternative Currency Letter
of Credit is denominated) by (y) the Exchange Rate for each such Alternative
Currency in effect on the last Business Day of such period or by such other
reasonable method that the Administrative Agent deems appropriate.


 


(c)  Each
Borrower agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between such
Borrower and the Administrative Agent.


 


(d)  Each
Borrower agrees to pay to the Foreign Trade Facility Agent and the Mandated
Arrangers in respect of the Foreign Trade Facility, for their respective
accounts, fees payable in the amounts and at the times separately agreed upon
between such Borrower and such Person.


 


(e)  All
fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the applicable Issuing Lender or
Foreign Issuing Lender, in the case of fees payable to it) for distribution, in
the case of commitment fees and participation fees, to the Lenders entitled
thereto.  Except as otherwise provided in
Section 2.6(n), fees paid shall not be refundable under any circumstances.


 


SECTION 2.15.                 Interest.  (a)  ABR Loans shall bear interest at
the Alternate Base Rate plus the Applicable Rate.


 


(b)  Eurocurrency
Loans shall bear interest at the Adjusted LIBO Rate for the applicable Interest
Period plus the Applicable Rate.


 


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(c)  Notwithstanding
the foregoing, if any principal of or interest (or premium, if any) on any Loan
or any fee or other amount payable by any Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount,
2% plus the rate applicable to ABR Revolving Loans as provided in paragraph (a) of
this Section (or, in the case of amounts denominated in a Qualified
Foreign Global Currency the rate that would apply to Loans in such currency
pursuant to clause (i) above), in each case, with respect to clauses (i) and
(ii) above, from the date of such non-payment until such amount is paid in
full (as well after as before judgment).


 


(d)  Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the
Revolving Commitments; provided that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment
of an ABR Revolving Loan prior to the end of the Domestic Revolving
Availability Period or Global Revolving Availability Period, as applicable),
accrued interest (and premium, if any) on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any Eurocurrency Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.


 


(e)  All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate, and interest in respect of
sterling-denominated Loans, shall be computed on the basis of a year of 365
days (or 366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).  The applicable Alternate Base Rate
or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


SECTION 2.16.                 Alternate
Rate of Interest.  If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:


 


(a)                                  the Administrative
Agent determines (which determination shall be conclusive absent manifest
error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate for such Interest Period;


 


(b)                                 the Administrative
Agent is advised by the Majority Facility Lenders under the relevant Facility
that the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest Period;
or


 


(c)                                  the Administrative
Agent determines (which determination shall be conclusive absent manifest
error) that deposits in the principal amounts of the Loans comprising such
Borrowing and in the currency in which such Loans are to be denominated are not
generally available in the relevant market;


 


then the Administrative Agent shall give notice
thereof to the Parent Borrower and the relevant Lenders by telephone or
telecopy as promptly as practicable thereafter and, until the Administrative
Agent notifies the Parent Borrower and the relevant Lenders that the
circumstances giving rise to such notice no longer exist, then, in the case of
the relevant Facility, any
request by a Borrower for a Eurocurrency Borrowing of the affected Type or in
the affected currency, or a conversion to or continuation of a Eurocurrency


 


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Borrowing of the affected
Type or in the affected currency, pursuant to Section 2.3 or 2.8, shall be
deemed rescinded; provided that if the circumstances giving rise to such
notice affect only one Type of Borrowings, then the other Type of Borrowings
shall be permitted.


 


SECTION 2.17.                 Increased
Costs.  (a)  If any Change in
Law shall:


 


(i)                                     impose, modify or
deem applicable any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate); or


 


(ii)                                  impose on any Lender,
Issuing Lender or Foreign Issuing Lender or the London (or other relevant)
interbank market any other condition affecting this Agreement or Eurocurrency
Loans made by such Lender or any Letter of Credit, Foreign Credit Instrument or
participation therein;


 


and the result
of any of the foregoing shall be to increase the net cost to such Lender of
making or maintaining any Eurocurrency Loan (or of maintaining its obligation
to make any such Loan) or to increase the cost to such Lender, Issuing Lender
or Foreign Issuing Lender of participating in, issuing or maintaining any
Letter of Credit or Foreign Credit Instrument or to reduce the amount of any
sum received or receivable by such Lender, Issuing Lender or Foreign Issuing
Lender hereunder (whether of principal, interest, premium or otherwise), then
each relevant Borrower will pay to such Lender, Issuing Lender or Foreign
Issuing Lender such additional amount or amounts as will compensate such
Lender, Issuing Lender or Foreign Issuing Lender, as the case may be, for such
additional costs incurred or reduction suffered.


 


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


 


(c)  A
certificate of a Lender, Issuing Lender or Foreign Issuing Lender setting forth
in reasonable detail the basis for and computation of the amount or amounts
necessary to compensate such Person or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall
be delivered to the relevant Borrower and shall be conclusive absent manifest
error.  Such Borrower shall pay such
Lender, Issuing Lender or Foreign Issuing Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.  All amounts payable by any Borrower pursuant
to paragraph (a) or (b) of this Section shall be deemed to
constitute interest expense in respect of the Loans.


 


(d)  Failure
or delay on the part of any Lender, Issuing Lender or Foreign Issuing Lender to
demand compensation pursuant to this Section shall not constitute a waiver
of such Person’s right to demand such compensation; provided that no
Borrower shall be required to compensate a Lender, Issuing Lender or Foreign
Issuing Lender pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Person
notifies such Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Person’s intention to claim compensation therefor;


 


65





















 


provided
further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall
be extended to include the period of retroactive effect thereof.


 


SECTION 2.18.                 Break
Funding Payments.  In the event of (a) the
payment of any principal of any Eurocurrency Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the
last day of the Interest Period (or, in the case of Canadian B/As, the Canadian
Contract Period) applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.12(d) and is revoked in accordance therewith),
or (d) the assignment of any Eurocurrency Loan other than on the last day
of the Interest Period (or, in the case of Canadian B/As, the Canadian Contract
Period) applicable thereto as a result of a request by the Parent Borrower
pursuant to Section 2.21, then, in any such event, the relevant Borrower
shall compensate each Lender for the loss, cost and expense attributable to
such event.  In the case of a
Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such
Loan had such event not occurred, at the Adjusted LIBO Rate that would have
been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period (or, in the case of Canadian B/As,
the Canadian Contract Period) therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period or
Canadian Contract Period, as applicable, for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for deposits in the relevant currency of a
comparable amount and period from other banks in the relevant market.  A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the relevant Borrower and shall be conclusive absent manifest
error, and shall be so delivered as promptly as reasonably practicable after
such Lender obtains actual knowledge of such amount.  Such Borrower shall pay such Lender the
amount shown as due on any such certificate within 10 days after receipt
thereof.


 


SECTION 2.19.                 Taxes.  (a)  Any and all payments by or on
account of any obligation of any Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes; provided that if a Borrower shall be required to
deduct any Indemnified Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent or the relevant Lender receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.


 


(b)  In
addition, each Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law and indemnify the Lender from and
against any Other Taxes and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto.


 


(c)  Each
Borrower shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes
paid by the Administrative Agent or such Lender on or with respect to any
payment by or on account of any obligation of a Borrower hereunder or under any
other Loan Document (including Indemnified Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority.  A
certificate as to


 


66





















 


the amount of such payment or
liability delivered to a Borrower by a Lender, or by the Administrative Agent
on its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error, and shall be so delivered as promptly as reasonably practicable after
such Lender or the Administrative Agent, as the case may be, obtains actual
knowledge of such amount.


 


(d)  As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by a
Borrower to a Governmental Authority, such Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


 


(e)  Each
Lender that is not a United States person within the meaning of Section 7701(a)(30)
of the Code (a “Non-U.S. Lender”) shall deliver to the Parent Borrower
and the Administrative Agent, on or before the date on which it becomes a party
to this Agreement either:


 


(A)                               two duly completed and
signed original copies of either Internal Revenue Service Form W-8BEN or
Internal Revenue Service Form W-8ECI (relating to such Non-U.S. Lender and
entitling it to a complete exemption from or reduction of withholding of United
States federal income taxes on all amounts to be received by such Non-U.S. Lender
pursuant to this Agreement and the other credit documents), or successor and
related applicable forms, as the case may be (including, where applicable any
such forms required to be provided to certify to such exemption on behalf of
such Non-U.S. Lender’s beneficial owners).


 


(B)                                 in the case of a
Non-U.S. Lender that is not a “Bank” within the meaning of Section 881(c)(3)(A) of
the Code and that does not comply with the requirements of clause (A) hereof,
(x) a statement in the form of Exhibit F (and any similar statements
required to certify to the exemption of its beneficial owners) or such other
form of statement as shall be reasonably requested by the Parent Borrower from
time to time to the effect that such Non-U.S. Lender (and, where applicable, its
beneficial owners) is eligible for a complete exemption from withholding of
United States federal income taxes under Code Section 871(h) or
881(c), and (y) two duly completed and signed original copies of Internal
Revenue Service Form W-8BEN or successor and related applicable forms
(including, where applicable, copies of such forms with respect to such entity’s
beneficial owners).


 


Further, each Non-U.S. Lender agrees (i) to deliver to the Parent
Borrower and the Administrative Agent, and if applicable, the assigning Lender
two further duly completed and signed original copies of such Forms W-8BEN or W-8ECI,
as the case may be (and, where applicable, any such forms on behalf of its
beneficial owners) or successor and related applicable forms, on or before the
date that any such form expires or becomes obsolete and promptly after the
occurrence of any event requiring a change from the most recent form(s)
previously delivered by it to the Parent Borrower in accordance with applicable
U.S. laws and regulations, (ii) in the case of a Non-U.S. Lender that
delivers a statement in the form of Exhibit F (or such other form of
statement as shall have been requested by the Parent Borrower), to deliver to
the Parent Borrower and the Administrative Agent, and if applicable, the
assigning Lender, such statement (and where applicable, any such statements
from its beneficial owners) on the two year anniversary of the date on which
such Non-U.S. Lender became a party to this Agreement and to deliver promptly
to the Parent Borrower and the Administrative Agent, such additional statements
and forms as shall be reasonably requested by the Parent


 


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Borrower from time to time, and (iii) to notify promptly the
Parent Borrower and the Administrative Agent if it (or, as applicable, its
beneficial owners) is no longer able to deliver, or if it is required to
withdraw or cancel, any form of statement previously delivered by it pursuant
to this Section 2.19(e). 
Notwithstanding anything herein to the contrary, (x) no Non-U.S. Lender
shall be required to provide any forms, certification or documentation which it
is not legally entitled or able to deliver and (y) no Canadian Lender shall be
required to provide any Internal Revenue Service forms pursuant to this Section 2.19(e).


 


(f)  Each
Lender which is not a Non-U.S. Lender shall deliver to Parent Borrower and the
Administrative Agent (and if applicable the assigning or participating Lender)
two copies of a statement which shall contain the address of such Lender’s
office or place of business in the United States, which shall be signed by an
authorized officer of such Lender, together with two duly completed copies of
Internal Revenue Service Form W-9 (or applicable successor form) unless it
establishes to the satisfaction of the Parent Borrower that it is otherwise
eligible for an exemption from backup withholding tax or other applicable
withholding tax.  Each such Lender shall
deliver to the Parent Borrower and Administrative Agent two further duly
completed and signed forms and statements (or successor form) at or before the
time any such form or statement becomes obsolete.


 


(g)  Each
Non-U.S. Lender agrees to indemnify and hold harmless each Borrower from and
against any Taxes imposed by or on behalf of the United States or any taxing
jurisdiction thereof, penalties, additions to tax, fines, interest or other
liabilities, costs or losses (including, without limitation, reasonable
attorney’s fees and expenses) incurred or payable by such Borrower as a result
of the failure of such Borrower to comply with its obligations to deduct or
withhold any Taxes imposed by or on behalf of the United States or any taxing
jurisdiction thereof (including penalties, additions to tax, fines or interest
on such Taxes) from any payments made pursuant to this Agreement to such
Non-U.S. Lender or the Administrative Agent which failure resulted from (i) such
Borrower’s reliance on Exhibit F pursuant to Section 2.19(e) or (ii) such
Lender being a “conduit entity” within the meaning of Treasury Reg. Section 1.881-3
or any successor provision thereto; and, provided additionally, that, without
limitation, no amounts shall be due and owing to such Lender pursuant to Section 2.19
if either provisions (i) or (ii) are applicable.


 


(h)  If
the Administrative Agent or any Lender receives a refund in respect of
Indemnified Taxes or Other Taxes paid by a Borrower, which in the reasonable
good faith judgment of such Lender is allocable to such payment, it shall
promptly pay such refund, together with any other amounts paid by such Borrower
in connection with such refunded Indemnified Taxes or Other Taxes, to such
Borrower, net of all out-of-pocket expenses of such Lender incurred in
obtaining such refund, provided, however, that each Borrower
agrees to promptly return such refund to the Administrative Agent or the
applicable Lender as the case may be, if it receives notice from the
Administrative Agent or applicable Lender that such Administrative Agent or
Lender is required to repay such refund.


 


(i)  If
the Administrative Agent or any Lender is entitled to an exemption from or
reduction in the rate of the imposition, deduction or withholding of any
Indemnified Tax or Other Tax under the laws of the jurisdiction in which a
Foreign Subsidiary Borrower is organized or engaged in business, or any treaty
to which such jurisdiction is a party, with respect to payments under this
Agreement or any other Loan Document, then the Administrative Agent or such
Lender (as the case may be) shall deliver to such Foreign Subsidiary Borrower
or the relevant Governmental Authority, in the manner and at the time or times
prescribed by applicable law or as reasonably requested by the Foreign
Subsidiary Borrower, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by such Foreign Subsidiary
Borrower as will permit such payments to be made without the imposition,
deduction or withholding of such Indemnified Tax or Other Tax or at a reduced


 


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rate, provided that the
Administrative Agent or such Lender is legally entitled to complete, execute
and deliver such documentation and in its reasonable judgment such completion,
execution or submission would not materially prejudice its commercial or legal
position or require disclosure of information it considers confidential or
proprietary.


 


SECTION 2.20.                 Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.  (a)  Each Borrower shall make each
payment required to be made by it hereunder or under any other Loan Document
(whether of principal, interest, premium, fees or reimbursement of LC
Disbursements or Foreign Credit Disbursements, or of amounts payable under Section 2.17,
2.18 or 2.19, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, local time), on the date when due, in
immediately available funds, without set-off or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments
shall be made to the Administrative Agent at its offices at its Administrative
Office, except as otherwise expressly provided herein.  The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof.  If any payment under any Loan Document shall
be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such
extension.  Except as otherwise specified
in this Agreement, each such payment (other than (i) principal of and
interest on Qualified Global Currency Loans and LC Disbursements denominated in
an Alternative Currency, which shall be made in the applicable Qualified Global
Currency or, except as otherwise specified in Section 2.5(e), Alternative
Currency, as the case may be, (ii) the Foreign Credit Commission, the
Foreign Credit Commitment Fee, the Foreign Credit Handling Fee and the Foreign
Credit Fronting Fee, which shall be made in Euros and (iii) other payments
in respect of the Foreign Credit Instruments and Foreign Credit Disbursements
thereunder, which shall be made in the currency applicable to such Foreign
Credit Instrument) shall be made in Dollars.


 


(b)  If
at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements and Foreign Credit Disbursements, interest, premium and fees then
due hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such parties,
and (ii) second, towards payment of principal and unreimbursed LC
Disbursements and Foreign Credit Disbursements then due hereunder, and any
premium then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements and
Foreign Credit Disbursements, and any premium, then due to such parties.


 


(c)  If
any Lender (other than a Foreign Issuing Lender) shall, by exercising any right
of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest (or premium, if any) on any of its Revolving Loans,
Term Loans or participations in LC Disbursements or Swingline Loans resulting
in such Lender receiving payment of a greater proportion of the aggregate amount
of its Revolving Loans, Term Loans and participations in LC Disbursements and
Swingline Loans and accrued interest (and premium, if any) thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Term Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary 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 (and premium, if any) on
their respective Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any such
participations are purchased and all or


 


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any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by a Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Parent Borrower or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply).  Each Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against such Borrower rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of such
Borrower in the amount of such participation. 
The provisions of this paragraph shall not be construed to apply to
payments obtained by a Foreign Issuing Lender, in its capacity as such, and the
parties hereto understand and agree that the sharing provisions applicable to
the Foreign Trade Facility are set forth in Section 2.6(s).


 


(d)  Unless
the Administrative Agent shall have received notice from a Borrower prior to
the date on which any payment is due to the Administrative Agent for the
account of the Lenders (or any of them) hereunder that such Borrower will not
make such payment, the Administrative Agent may assume that such Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the relevant Lenders the amount due.  In such event, if such Borrower has not in
fact made such payment, then each relevant Lender severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender 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 greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent to represent its cost of overnight
or short-term funds in the relevant currency (which determination shall be
conclusive absent manifest error).


 


(e)  If
any Lender shall fail to make any payment required to be made by it to the
Administrative Agent, the Swingline Lender or any Issuing Lender, then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender’s obligations under
such Sections until all such unsatisfied obligations are fully paid.


 


SECTION 2.21.                 Mitigation
Obligations; Replacement of Lenders. 
(a)  If any Lender requests compensation under Section 2.17,
or if any Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.19,
then such Lender shall 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, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.17 or 2.19, as
the case may be, in the future and (ii) would not subject such Lender to
any unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender.  Each Borrower hereby agrees
to pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.


 


(b)  If (i) any
Lender (other than a Foreign Issuing Lender) requests compensation under Section 2.17,
(ii) any Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 2.19,
(iii) any Lender defaults in its obligation to fund Loans hereunder or (iv) any
Lender becomes a “Non-Consenting Lender” (as defined below), then the Parent
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 Section 9.4),
all its interests, rights and


 


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obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (A) the
Parent Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, (B) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and Foreign Credit Disbursements and participations in
LC Disbursements and Swingline Loans, accrued interest (and premium, if any)
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or such Borrower (in the case of all other amounts) and (C) in the
event of a replacement of a Non-Consenting Lender, in order for the Parent
Borrower to be entitled to replace such a Lender, such replacement must take
place no later than 120 days after the date the Non-Consenting Lender shall
have notified the Parent Borrower and the Administrative Agent of its failure
to agree to any requested consent, waiver or amendment.  A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling a Borrower to require
such assignment and delegation cease to apply. 
In the event that (x) the Parent Borrower or the Administrative Agent
has requested the Lenders to consent to a departure or waiver of any provisions
of the Loan Documents or to agree to any amendment thereto, (y) the consent,
waiver or amendment in question requires the agreement of all Lenders in
accordance with the terms of Section 9.2 or all the Lenders with respect
to a certain Facility or Class of Loans or Commitments and (z) the
Required Lenders, the Majority Facility Lenders with respect to a particular
Facility or Lenders holding more than 50% of the Loans or Commitments of a
particular Class, as applicable, have agreed to such consent, waiver or
amendment, then any Lender who does not agree to such consent, waiver or
amendment shall be deemed a “Non-Consenting Lender”.


 


SECTION 2.22.                 Change
in Law.  Notwithstanding any other
provision of this Agreement, if, after the date hereof, (a) any Change in
Law shall make it unlawful for any Issuing Lender to issue Letters of Credit
denominated in an Alternative Currency, or any Global Revolving Lender to make
Global Revolving Loans denominated in a Qualified Global Currency, or any
Canadian Lender to accept Canadian B/As, or any Foreign Issuing Lender to issue
any Foreign Credit Instruments, or (b) there shall have occurred any
change in national or international financial, political or economic conditions
(including the imposition of or any change in exchange controls) or currency
exchange rates that would make it impracticable for any Issuing Lender to issue
Letters of Credit denominated in such Alternative Currency for the account of a
Borrower, or any Global Revolving Lender to make Global Revolving Loans
denominated in a Qualified Global Currency, or any Canadian Lender to accept
Canadian B/As, or any Foreign Issuing Lender to issue any Foreign Credit
Instruments, then by prompt written notice thereof to the Parent Borrower and
to the Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (i) such Issuing Lender may declare that Letters
of Credit will not thereafter be issued by it in the affected Alternative
Currency or Alternative Currencies, whereupon the affected Alternative Currency
or Alternative Currencies shall be deemed (for the duration of such
declaration) not to constitute an Alternative Currency for purposes of the
issuance of Letters of Credit by such Issuing Lender, (ii) such Global
Revolving Lender may declare that Global Revolving Loans will not thereafter be
made by it in the affected Qualified Global Currency or Qualified Global
Currencies, whereupon the affected Qualified Global Currency or Qualified
Global Currencies shall be deemed (for the duration of such declaration) not to
constitute a Qualified Global Currency for purposes of the making of Global
Revolving Loans by such Global Revolving Lender, (iii) the commitment of
such Canadian Lender hereunder to accept Canadian B/As and continue Canadian
B/As as such shall forthwith be cancelled (for the duration of such
declaration) and such Lender’s Canadian B/As, if any, shall (on the respective
last days of the then current Canadian Contract Periods or within such earlier
period as required by law) be converted automatically to Eurocurrency
Borrowings having an Interest Period of one month and (iv) such Foreign
Issuing Lender may declare that such affected Foreign Credit Instruments will
not thereafter be issued by it and the commitment of such Foreign Issuing
Lender to issue such affected Foreign Credit Instruments shall forthwith be
cancelled (for the duration of such declaration).


 


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SECTION 2.23.                 Foreign
Subsidiary Borrowers.  (a) 
Subject to the consent of the Administrative Agent, the Parent Borrower may
designate any Foreign Subsidiary of the Parent Borrower as a Foreign Subsidiary
Borrower under the Global Revolving Facility by delivery to the Administrative
Agent of a Borrowing Subsidiary Agreement executed by such Subsidiary, the
Parent Borrower and the Administrative Agent and upon such delivery such Subsidiary
shall for all purposes of this Agreement be a Foreign Subsidiary Borrower under
the Global Revolving Facility and a party to this Agreement until the Parent
Borrower shall have executed and delivered to the Administrative Agent a
Borrowing Subsidiary Termination with respect to such Subsidiary, whereupon
such Subsidiary shall cease to be a Foreign Subsidiary Borrower under the
Global Revolving Facility.  Notwithstanding the preceding sentence, (i) no
Canadian Borrower (as defined in Schedule 1.7) may request Global
Revolving Loans or other extensions of credit hereunder from any Lender other
than a Canadian Lender and (ii) no such Borrowing Subsidiary Termination
will become effective as to any Foreign Subsidiary Borrower under the Global
Revolving Facility at a time when any Obligations of such Foreign Subsidiary
Borrower shall be outstanding thereunder or any Letters of Credit issued for
the account of Such Foreign Subsidiary Borrower shall be outstanding (which
shall not have been cash collateralized in a manner consistent with the terms
of Section 2.5(f)), provided that such Borrowing Subsidiary
Termination shall be effective to terminate such Foreign Subsidiary Borrower’s
right to make further borrowings under the Global Revolving Facility.


 


(b)  Subject
to the consent of the Foreign Trade Facility Agent and the Administrative
Agent, the Parent Borrower may designate any Foreign Subsidiary of the Parent
Borrower as a Foreign Subsidiary Borrower under the Foreign Trade Facility by
delivery to the Foreign Trade Facility Agent and the Administrative Agent of a
Borrowing Subsidiary Agreement executed by such Subsidiary, the Parent
Borrower, the Foreign Trade Facility Agent and the Administrative Agent and
upon such delivery such Subsidiary shall for all purposes of this Agreement be
a Foreign Subsidiary Borrower under the Foreign Trade Facility and a party to
this Agreement until the Parent Borrower shall have executed and delivered to
the Foreign Trade Facility Agent and the Administrative Agent a Borrowing
Subsidiary Termination with respect to such Subsidiary, whereupon such
Subsidiary shall cease to be a Foreign Subsidiary Borrower under the Foreign
Trade Facility.  Notwithstanding the
preceding sentence, (i) no Borrower that is organized under the laws of
Canada or any province or territory thereof may request Foreign Credit
Instruments from any Lender other than a Foreign Issuing Lender that is
organized under the laws of Canada or any province or territory thereof or that
agrees, in its sole discretion, to issue Foreign Credit Instruments to such
Borrower and (ii) no such Borrowing Subsidiary Termination will become
effective as to any Foreign Subsidiary Borrower under the Foreign Trade
Facility at a time when any Obligations of such Foreign Subsidiary Borrower
shall be outstanding thereunder or any Foreign Credit Instruments issued for
the account of such Foreign Subsidiary Borrower shall be outstanding (which
shall not have been cash collateralized or otherwise supported in a manner
consistent with the terms of Section 2.6(m)(v)), provided that such
Borrowing Subsidiary Termination shall be effective to terminate such Foreign
Subsidiary Borrower’s right to request further Foreign Credit Instruments or
other extensions of credit under the Foreign Trade Facility.


 


(c)  For
the avoidance of doubt, no Foreign Subsidiary Borrower shall be liable for the
Obligations of any other Loan Party.


 


(d)  The
Administrative Agent shall promptly notify the Global Revolving Lenders of any
Foreign Subsidiary Borrower added pursuant to Section 2.23(a), and the
Foreign Trade Facility Agent shall promptly notify each Foreign Issuing Lender
of any Foreign Subsidiary Borrower added pursuant to Section 2.23(b).


 


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ARTICLE III



REPRESENTATIONS AND WARRANTIES


 


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


 


SECTION 3.1.                       Organization;
Powers.  Each of the Parent Borrower
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, except, in the
case of Subsidiaries, where the failure to do so, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, (b) has all
requisite power and authority to carry on its business as now conducted in all
material respects and (c) except where the failure to do so, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required.


 


SECTION 3.2.                       Authorization;
Enforceability.  The Transactions to
be entered into by each Loan Party are within such Loan Party’s corporate
powers and have been duly authorized by all necessary corporate and, if
required, stockholder action.  This
Agreement has been duly executed and delivered by each Borrower and
constitutes, and each other Loan Document to which any Loan Party is to be a
party, when executed and delivered by such Loan Party, will constitute, a
legal, valid and binding obligation of such Borrower or such Loan Party (as the
case may be), enforceable against such Borrower or such other Loan Party, as
the case may be, in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.


 


SECTION 3.3.                       Governmental
Approvals; No Conflicts.  The
Transactions (a) do not require any material consent or approval of,
registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and
effect and except filings necessary to perfect Liens created under the Loan
Documents, (b) will not violate any applicable material law or regulation
or the charter, by-laws or other organizational documents of the Parent
Borrower or any of its Subsidiaries or any order of any Governmental Authority,
(c) will not violate or result in a default under any material indenture,
agreement or other instrument binding upon the Parent Borrower or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Parent Borrower or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the Parent
Borrower or any of its Subsidiaries, except Liens created under the Loan
Documents.


 


SECTION 3.4.                       Financial
Condition; No Material Adverse Change. 
(a)  The Parent Borrower has heretofore furnished to the Lenders
its consolidated balance sheet and statements of income, stockholders equity
and cash flows (i) as of and for the fiscal year ended December 31,
2004, reported on by Deloitte & Touche LLP, independent public
accountants, and (ii) as of and for the fiscal quarters and the portion of
the fiscal year ended March 31, 2005, June 30, 2005 and September 30,
2005, certified by its chief financial officer. 
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Parent
Borrower and its consolidated Subsidiaries as of such dates and for such
periods in accordance with GAAP, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii) above.


 


(b)  Except
as disclosed in the financial statements referred to above or the notes thereto
or in the Information Memorandum and except for the Disclosed Matters, based on
the facts and circumstances in existence on the Effective Date and taking into
consideration the likelihood of any realization with respect to contingent
liabilities, after giving effect to the Transactions, none of the Parent


 


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Borrower or its Subsidiaries
has, as of the Effective Date, any material contingent liabilities, unusual
long-term commitments or unrealized losses.


 


(c)  Since
December 31, 2004, there has been no development or event that has had or
could reasonably be expected to have a Material Adverse Effect.


 


SECTION 3.5.                       Properties.  (a)  Each of the Parent Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real and
personal property material to its business, except as, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.


 


(b)  Except
as, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, each of the Parent Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Parent Borrower and its Subsidiaries does not infringe upon the rights of any
other Person.


 


SECTION 3.6.                       Litigation
and Environmental Matters.  (a) 
There are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Parent
Borrower, threatened against or affecting the Parent Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, in the aggregate, to have a Material Adverse Effect or (ii) that
involve any of the Loan Documents or the Transactions.


 


(b)  Except
as, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, neither the Parent Borrower nor any of its Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental
Law, (ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or (iv) knows
of any basis for any Environmental Liability.


 


SECTION 3.7.                       Compliance
with Laws and Agreements.  Each of
the Parent Borrower and its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it
or its property, except where the failure to do so, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.  No Default has occurred and is continuing.


 


SECTION 3.8.                       Investment
and Holding Company Status.  Neither
the Parent Borrower nor any of its Subsidiaries is (a) an “investment
company” as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a “holding company” as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935.


 


SECTION 3.9.                       Taxes.  Each of the Parent Borrower and its
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which the Parent
Borrower or such Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


SECTION 3.10.                 ERISA.  No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to have
a Material Adverse Effect.  Except to the
extent such excess


 


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could not reasonably be expected to have a Material Adverse Effect, the
present value of all accumulated benefit obligations under each Plan (based on
the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets
of such Plan, and the present value of all accumulated benefit obligations of
all underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Accounting Standards No. 87) did not, as of the date of the
most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of all such underfunded Plans.


 


SECTION 3.11.                 Disclosure.  As of the Effective Date, the Parent Borrower
has disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which the Parent Borrower or any of its Subsidiaries is
subject, and all other matters known to any of them, that, in the aggregate,
could reasonably be expected to have a Material Adverse Effect.  Neither the Information Memorandum nor any of
the other reports, financial statements, certificates or other information,
taken as a whole, furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other 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 Parent Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.


 


SECTION 3.12.                 Subsidiaries.  Schedule 3.12 sets forth the name of,
and the direct and indirect ownership interest of the Parent Borrower in, each
Subsidiary of the Parent Borrower and identifies each Subsidiary that is a
Subsidiary Guarantor, in each case as of the Effective Date after giving effect
to the Transactions.


 


SECTION 3.13.                 Labor
Matters.  Except as, in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect:  (a) there are no strikes,
lockouts, slowdowns or other labor disputes against the Parent Borrower or any
Subsidiary pending or, to the knowledge of the Parent Borrower, threatened; (b) the
hours worked by and payments made to employees of the Parent Borrower and the
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing with such matters;
and (c) all payments due from the Parent Borrower or any Subsidiary, or
for which any claim may be made against the Parent Borrower or any Subsidiary,
on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of the Parent
Borrower or such Subsidiary.  The
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement to which the Parent Borrower or any Subsidiary is bound.


 


SECTION 3.14.                 Solvency.  Immediately after the consummation of the
Transactions to occur on the Effective Date and immediately following the
making of each Loan made on the Effective Date and the making of the Initial
Term Loans during the Term Loan Availability Period and after giving effect to
the application of the proceeds of such Loans, (a) the fair value of the
assets of the Parent Borrower and its Subsidiaries, taken as a whole, at a fair
valuation, will exceed their debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of the property of the
Parent Borrower and its Subsidiaries, taken as a whole, will be greater than
the amount that will be required to pay the probable liability of their debts
and other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the Parent Borrower and
its Subsidiaries, taken as a whole, will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Parent Borrower and
its Subsidiaries,


 


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taken as a whole, will not have unreasonably small capital with which
to conduct the business in which they are engaged as such business is now
conducted and is proposed to be conducted following the Effective Date.


 


SECTION 3.15.                 Senior
Indebtedness.  At all times after the
issuance of any Subordinated Debt, (a) the Obligations will constitute “Senior
Indebtedness” (or any comparable concept) under and as defined in the
Subordinated Debt Documents and (b) in the event that any Subsidiary
Guarantees the Subordinated Debt, the obligations of such Subsidiary Guarantor
under the Guarantee and Collateral Agreement will constitute “Guarantor Senior
Indebtedness” (or any comparable concept) of such Subsidiary Guarantor under
and as defined in the Subordinated Debt Documents.


 


SECTION 3.16.                 Security
Documents.  The Guarantee and
Collateral Agreement, and, after the occurrence of the Ratings Event, each
other Security Document, is effective to create in favor of the Administrative
Agent a legal, valid and enforceable security interest in the Collateral to the
extent described therein and available under the UCC.  As of the Effective Date, Schedule 3.16
lists all of the filing jurisdictions in which UCC-1 Financing Statements are
required to be filed pursuant to the Guarantee and Collateral Agreement.  Upon filing of such UCC-1 Financing
Statements, the Guarantee and Collateral Agreement creates a fully perfected
Lien on, and security interest in, all right, title and interest of the Loan
Parties in such Collateral to the extent available under the UCC, as security
for the Obligations (as defined in the Guarantee and Collateral Agreement), in
each case, subject to Permitted Encumbrances or as otherwise permitted by Section 6.3,
prior and superior in right to any other Person.


 


ARTICLE IV



CONDITIONS


 


SECTION 4.1.                       Effective
Date.  The obligations of the Lenders
to make Loans hereunder, of the Issuing Lenders to issue Letters of Credit
hereunder and of the Foreign Issuing Lenders to issue Foreign Credit
Instruments hereunder shall not become effective until the date on which each
of the following conditions is satisfied:


 


(a)                                  Credit Agreement;
Guarantee and Collateral Agreement. 
The Administrative Agent shall have received (i) this Agreement or,
in the case of the Lenders, an Addendum in the form of Exhibit E, executed
and delivered by the Administrative Agent, each Borrower and each Person listed
on Schedule 1.1A, (ii) the Guarantee and Collateral Agreement,
executed and delivered by the Parent Borrower and each Subsidiary Guarantor and
(iii) an Acknowledgement and Consent, substantially in the form attached
to the Guarantee and Collateral Agreement, executed and delivered by each
Issuer (as defined therein) that is not a party to the Guarantee and Collateral
Agreement and that is organized under the laws of Germany or any state or
territory thereof.


 


(b)                                 Existing Credit
Agreement.  The Administrative Agent
shall have received satisfactory evidence that the Existing Credit Agreement
shall have been terminated and all amounts thereunder shall have been paid in
full and (ii) satisfactory arrangements shall have been made for the
termination of all Liens granted in connection therewith.


 


(c)                                  Financial
Statements.  The Lenders shall have
received (i) audited consolidated financial statements of the Parent
Borrower for the 2003 and 2004 fiscal years and (ii) unaudited interim
consolidated financial statements of the Parent Borrower for each fiscal
quarter ended after the date of the latest applicable financial statements
delivered pursuant to clause (i) of this


 


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paragraph as to which such financial statements are available, and such
financial statements shall not, in the reasonable judgment of the Lenders,
reflect any material adverse change in the consolidated financial condition of
the Parent Borrower, as reflected in the financial statements or projections
contained in the Confidential Information Memorandum.


 


(d)                                 Projections.  The Lenders shall have received satisfactory
projections (including written assumptions) for the Parent Borrower and its
Subsidiaries.


 


(e)                                  Lien Searches.  The Administrative Agent shall have received
the results of a recent lien search in each of the jurisdictions where assets
of the Loan Parties are located, and such search shall reveal no liens on any
of the assets of the Loan Parties except for liens permitted by Section 6.3
or discharged on or prior to the Effective Date pursuant to documentation
satisfactory to the Administrative Agent.


 


(f)                                    Pledged Stock.  The Administrative Agent shall have received
the certificates representing the shares of Capital Stock pledged pursuant to
the Guarantee and Collateral Agreement, together with an undated stock power
for each such certificate executed in blank by a duly authorized officer of the
pledgor thereof.


 


(g)                                 Filings,
Registrations and Recordings.  Each
document (including any Uniform Commercial Code financing
statement) required by the Security Documents or under law or reasonably
requested by the Administrative Agent to be filed, registered or recorded in
order to create in favor of the Administrative Agent, for the benefit of the
Lenders, a perfected Lien on the Collateral described therein, prior and
superior in right to any other Person (other than with respect to Liens expressly
permitted by Section 6.3), shall be in proper form for filing,
registration or recordation.


 


(h)                                 Legal Opinions.  The Administrative Agent shall have received
legal opinions (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) (i) from Fried, Frank, Harris, Shriver &
Jacobson LLP, counsel for the Parent Borrower, substantially in the form of Exhibit D-1,
and (ii) from Ross Bricker, General Counsel of the Parent Borrower,
substantially in the form of Exhibit D-2. 
The Parent Borrower hereby requests each such counsel to deliver such
opinions.


 


(i)                                     Closing
Certificates.  The Administrative
Agent shall have received, with a counterpart for each Lender, a certificate of
each Loan Party, dated the Effective Date, substantially in the form of Exhibit B,
with appropriate insertions and attachments.


 


(j)                                     Fees.  The Administrative Agent, the Foreign Trade
Facility Agent and the Lenders shall have received all fees and other amounts
due and payable on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses (including
fees, charges and disbursements of counsel) required to be reimbursed or paid
by any Loan Party hereunder or under any other Loan Document.


 


(k)                                  Consents.  All consents and approvals, if any, required
to be obtained from any Governmental Authority or other Person in connection
with the Transactions shall have been obtained, and all applicable waiting
periods and appeal periods shall have expired, in each case without the
imposition of any burdensome conditions, except to the extent that the failure
to obtain any such consent could not reasonably be expected to have a Material
Adverse Effect.


 


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SECTION 4.2.                       Each
Credit Event.  The obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of the Issuing
Lenders and Foreign Issuing Lenders to issue, amend, renew or extend any Letter
of Credit or any Foreign Credit Instrument, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the
following conditions:


 


(a)                                  The representations
and warranties of each Loan Party set forth in the Loan Documents shall be true
and correct in all material respects on and as of the date of such Borrowing or
the date of issuance, amendment, renewal or extension of such Letter of Credit
or Foreign Credit Instrument, as applicable.


 


(b)                                 At the time of and
immediately after giving effect to such Borrowing or the issuance, amendment,
renewal or extension of such Letter of Credit or Foreign Credit Instrument, as
applicable, no Default or Event of Default shall have occurred and be
continuing.


 


(c)                                  In the case of any
initial extension of credit made under the Global Revolving Facility to a
Foreign Subsidiary Borrower, the Administrative Agent shall have received a
Foreign Subsidiary Opinion and such other documents and information with
respect to such Foreign Subsidiary Borrower as the Administrative Agent may
reasonably request.


 


Each Borrowing
and each issuance, amendment, renewal or extension of a Letter of Credit or a
Foreign Credit Instrument shall be deemed to constitute a representation and
warranty by the Parent Borrower and the relevant Borrower on the date thereof
as to the matters specified in paragraphs (a) and (b) of this
Section.


 


ARTICLE V



AFFIRMATIVE COVENANTS


 


Until the Commitments have expired or been terminated
and the principal of and interest (and premium, if any) on each Loan and all
fees payable hereunder shall have been paid in full and all Letters of Credit
and Foreign Credit Instruments shall have expired or terminated (or been fully
cash collateralized or otherwise supported in a manner consistent with the
terms of Section 2.5(j) or 2.6(m)(v), as applicable) and all LC
Disbursements and Foreign Credit Disbursements shall have been reimbursed, the
Parent Borrower covenants and agrees with the Administrative Agent and the
Lenders that:


 


SECTION 5.1.                       Financial
Statements and Other Information. 
The Parent Borrower will furnish to the Administrative Agent and each
Lender:


 


(a)                                  within 90 days
after the end of each fiscal year of the Parent Borrower, its audited
consolidated balance sheet and related statements of operations, stockholders’
equity and cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported
on by Deloitte & Touche LLP or other independent public accountants of
recognized national standing (without a “going concern” or like qualification
or exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Parent Borrower and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied; provided that delivery
within the time period specified above of copies of the Annual Report on Form 10-K
of the Parent Borrower filed with the Securities and Exchange Commission shall
be deemed to satisfy the requirements of this Section 5.1(a);


 


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(b)                                 within 45 days
after the end of each of the first three fiscal quarters of each fiscal year of
the Parent Borrower, its consolidated balance sheet and related statements of
operations for such fiscal quarter and the then elapsed portion of the fiscal
year, and cash flows for the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for the corresponding period
or periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results
of operations of the Parent Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes; provided
that delivery within the time period specified above of copies of the Quarterly
Report on Form 10-Q of the Parent Borrower filed with the Securities and
Exchange Commission shall be deemed to satisfy the requirements of this Section 5.1(b);


 


(c)                                  concurrently with any
delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Parent Borrower (i) certifying
as to whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Section 6.1, (iii) stating whether any change in GAAP
or in the application thereof has occurred since the date of the Parent
Borrower’s audited financial statements referred to in Section 3.4 and, if
any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate and (iv) with respect
to any Permitted Acquisition for which the aggregate Consideration is greater
than or equal to $100,000,000 and for which a certificate has not been
previously delivered to the Administrative Agent as required by the definition
of Permitted Acquisition, certifying as to the matters specified in clause (a) of
the proviso in such definition;


 


(d)                                 concurrently with any
delivery of financial statements under clause (a) above, a certificate of
the accounting firm that reported on such financial statements stating whether
they obtained knowledge during the course of their examination of such
financial statements of any Default or Event of Default (which certificate may
be limited to the extent required by accounting rules or guidelines);


 


(e)                                  not later than 60
days after the commencement of each fiscal year of the Parent Borrower, a
consolidated budget for such fiscal year (including a projected consolidated
balance sheet and related statements of projected operations and cash flow as
of the end of and for such fiscal year and setting forth the assumptions used
for purposes of preparing such budget) and, promptly when available, any
significant revisions of such budget;


 


(f)                                    no later than five
days prior to the effectiveness thereof, copies of substantially final drafts
of any proposed amendment, supplement, waiver or other modification with
respect to the Senior Note Indenture, any of the Subordinated Debt Documents or
any of the Other Permitted Debt Documents;


 


(g)                                 promptly after the
same become publicly available, copies of all periodic and other reports, proxy
statements and other materials filed by the Parent Borrower or any Subsidiary
with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any
national securities exchange, or distributed by the Parent Borrower to its
shareholders generally, as the case may be; and


 


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(h)                                 promptly following any
request therefor, such other information regarding the operations, business
affairs, financial condition and identity of the Parent Borrower or any
Subsidiary, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender may reasonably request, including any request
made by a Lender as contemplated by Section 9.16.


 


SECTION 5.2.                       Notices
of Material Events.  The Parent
Borrower will furnish to the Administrative Agent and each Lender prompt
written notice of the following:


 


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


 


(b)                                 the filing or
commencement of any action, suit or proceeding by or before any arbitrator or
Governmental Authority against or affecting the Parent Borrower or any
Affiliate thereof that could reasonably be expected to have a Material Adverse
Effect;


 


(c)                                  the occurrence of any
ERISA Event that, alone or together with any other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Parent
Borrower and its Subsidiaries in an aggregate amount exceeding $50,000,000;


 


(d)                                 after the occurrence
of the Ratings Event, any casualty or other insured damage to any material
portion of any Collateral or the commencement of any action or proceeding for
the taking of any material portion of the Collateral or interest therein under
power of eminent domain or by condemnation or similar proceeding that could
reasonably be expected to reduce the value of the Collateral by an aggregate
amount in excess of $50,000,000; and


 


(e)                                  any development that
results in, or could reasonably be expected to have, a Material Adverse Effect.


 


Each notice delivered under this Section shall be
accompanied by a statement of a Financial Officer or other executive officer of
the Parent Borrower setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.


 


SECTION 5.3.                       Information
Regarding Collateral.  (a)  The
Parent Borrower will furnish to the Administrative Agent prompt written notice
of any change (i) in any Loan Party’s corporate name, (ii) in the
jurisdiction of organization of any Loan Party, (iii) in any Loan Party’s
identity or corporate structure or (iv) in any Loan Party’s Federal
Taxpayer Identification Number.  Unless
the Parent Borrower shall have provided to the Administrative Agent at least 15
days’ prior written notice of any such change, the Parent Borrower agrees not
to effect or permit any change referred to in the preceding sentence until such
time as all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Administrative Agent to continue
at all times following such change to have a valid, legal and perfected
security interest in all the Collateral.


 


(b)  On
each Collateral Date, the Parent Borrower shall deliver to the Administrative
Agent a certificate of a Financial Officer of the Parent Borrower setting forth
(i) the information required by Section 5.11 and (ii) a summary
of any change referred to in the first sentence of paragraph (a) above that
has occurred since the immediately preceding Collateral Date (or, in the case
of the first Collateral Date, since the Effective Date).


 


SECTION 5.4.                       Existence;
Conduct of Business.  The Parent
Borrower will, and will cause each of its Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges, franchises,
patents,


 


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copyrights, trademarks and trade names material to the conduct of its
business, except to the extent that the failure to do so could not reasonably
be expected to have a Material Adverse Effect; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.4.


 


SECTION 5.5.                       Payment
of Obligations.  The Parent Borrower
will, and will cause each of its Subsidiaries to, pay its material Indebtedness
and other obligations, including material Tax liabilities, before the same
shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b) the
Parent Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP, (c) such contest effectively
suspends collection of the contested obligation and the enforcement of any Lien
securing such obligation and (d) the failure to make payment pending such
contest could not reasonably be expected to have a Material Adverse Effect.


 


SECTION 5.6.                       Maintenance
of Properties.  The Parent Borrower
will, and will cause each of its Subsidiaries to, keep and maintain all
property material to the conduct of its business in good condition, ordinary
obsolescence, wear and tear excepted.


 


SECTION 5.7.                       Insurance.  The Parent Borrower will, and will cause each
of its Subsidiaries to, maintain, with financially sound and reputable
insurance companies (a) insurance in such amounts (with no greater risk
retention) and against such risks as are customarily maintained by companies of
established repute engaged in the same or similar businesses operating in the
same or similar locations and (b) all insurance required to be maintained
pursuant to the Security Documents.  The
Parent Borrower will furnish to the Lenders, upon request of the Administrative
Agent, information in reasonable detail as to the insurance so maintained.


 


SECTION 5.8.                       Books
and Records; Inspection and Audit Rights. 
The Parent Borrower will, and will cause each of its Subsidiaries to,
keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities.  The Parent Borrower will,
and will cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.


 


SECTION 5.9.                       Compliance
with Laws and Contractual Obligations. 
The Parent Borrower will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and orders of any Governmental
Authority (including Environmental Laws) and all Contractual Obligations
applicable to it or its property, except where the failure to do so, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.


 


SECTION 5.10.                 Use
of Proceeds and Letters of Credit and Foreign Credit Instruments.  The proceeds of the Initial Term Loans will
be used only to refinance the LYONs.  The
proceeds of the Incremental Term Loans will be used only for the purposes
specified in the relevant Incremental Facility Activation Notice.  The proceeds of the Revolving Loans and
Swingline Loans, and the Letters of Credit, will be used only for working
capital and general corporate purposes of the Parent Borrower and its
Subsidiaries, including Permitted Acquisitions, Investments and Restricted
Payments permitted hereby.  The Foreign
Credit Instruments will be used only for the operational business of the Parent
Borrower and its Subsidiaries, provided that no Foreign Credit
Instrument may be issued for the benefit of financial creditors.  No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations U and X.


 


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SECTION 5.11.                 Additional
Collateral.  (a)  On each
Collateral Date, the Parent Borrower will notify the Administrative Agent of
the identity of any Wholly Owned Subsidiary that is not already a Subsidiary
Guarantor and promptly after such Collateral Date will (i) cause such
Subsidiary (unless it is a Foreign Subsidiary (or a Subsidiary thereof) or a
Receivables Entity) to become a “Subsidiary Guarantor” under the Guarantee and
Collateral Agreement, (ii) in the case of each such Subsidiary that is a
Material Subsidiary, cause such Subsidiary (unless it is a Foreign Subsidiary
(or a Subsidiary thereof) or a Receivables Entity) to become a “Grantor” under
the Guarantee and Collateral Agreement and, after the occurrence of the Ratings
Event, each other relevant Security Document, (iii) cause the Capital
Stock of such Wholly Owned Subsidiary to be pledged pursuant to the Guarantee
and Collateral Agreement (except that, (A) if such Subsidiary is a Foreign
Subsidiary (or a Subsidiary thereof), no Capital Stock of such Subsidiary shall
be pledged unless such Subsidiary is a Material Subsidiary that is directly
owned by the Parent Borrower or a Domestic Subsidiary, and then the amount of
voting stock of such Subsidiary to be pledged pursuant to the Guarantee and
Collateral Agreement shall be limited to 66% of the outstanding shares of
voting stock of such Subsidiary, and (B) if such Subsidiary is a
Receivables Entity, no shares of Capital Stock of such Subsidiary shall be
pledged if the documentation relating to the Receivables sale, factoring or
securitization to which such Receivables Entity is a party expressly prohibits
such pledge) and (iv) except in the case of a Foreign Subsidiary (or a
Subsidiary thereof) or a Receivables Entity, take all steps required pursuant
to this Section 5.11, Section 5.12 and the relevant Security
Documents to create and perfect Liens in the relevant property of such
Subsidiary; provided that the Parent Borrower and its Subsidiaries shall
not be required to comply with the requirements of this Section 5.11(a) if
the Administrative Agent, in its sole discretion, determines that the cost of
such compliance is excessive in relation to the value of the collateral
security to be afforded thereby.


 


(b)  Promptly,
and in any event within 30 days (or such longer period as is reasonably
acceptable to the Administrative Agent), following the first date on which the
outstanding Indebtedness under this Agreement is rated “Ba2” or less by Moody’s
and “BB” or less by S&P (such date, the “Ratings Event”), the Parent
Borrower shall (i) execute and deliver, and cause each Subsidiary
Guarantor to execute and deliver, to the Administrative Agent security
documents, in form and substance reasonably satisfactory to the Administrative
Agent, pursuant to which the Parent Borrower and each Subsidiary Guarantor
shall grant to the Administrative Agent, for the benefit of the Lenders, a
security interest in all property of such Person (including any parcel of owned
domestic real property having a fair market value in excess of $10,000,000 but
excluding (A) all other real property, (B) Capital Stock not required
to be pledged pursuant to Section 5.11(a), (C) assets that cannot be
pledged as collateral due to existing legal or contractual prohibitions and (D) those
assets that are, in the reasonable judgment of the Administrative Agent,
customarily excluded from security documents) that is not already subject to a
perfected first priority Lien (except as permitted by Section 6.3) in
favor of the Administrative Agent and (ii) take, and cause the relevant
Subsidiaries to take, such actions as shall be necessary or reasonably
requested by the Administrative Agent to grant and perfect such Liens,
including actions described in Section 5.12, all at the expense of the
Loan Parties; provided that the Parent Borrower and its Subsidiaries
shall not be required to comply with the requirements of this Section 5.11(b) if
the Administrative Agent, in its sole discretion, determines that the cost of
such compliance is excessive in relation to the value of the collateral
security to be afforded thereby.


 


(c)  If,
as of any Collateral Date following the Ratings Event, any property of the
Parent Borrower, any Subsidiary Guarantor that is a “Grantor” under any
Security Document or any Subsidiary that is required to become a “Grantor”
pursuant to Section 5.11(a) (including any parcel of owned domestic
real property having a fair market value in excess of $10,000,000 but excluding
(A) all other real property, (B) Capital Stock not required to be
pledge pursuant to Section 5.11(a), (C) assets that cannot be pledged
as collateral due to existing legal or contractual prohibitions and (D) those
assets that are, in the reasonable judgment of the Administrative Agent,
customarily excluded from security documents) is not already subject to a
perfected first priority Lien (except as permitted by Section 6.3) in


 


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favor of the Administrative
Agent, the Parent Borrower will notify the Administrative Agent thereof, and,
promptly after such Collateral Date, will cause such assets to become subject
to a Lien under the relevant Security Documents and will take, and cause the
relevant Subsidiary to take, such actions as shall be necessary or reasonably
requested by the Administrative Agent to grant and perfect such Liens,
including actions described in Section 5.12, all at the expense of the
Loan Parties; provided that the Parent Borrower and its Subsidiaries
shall not be required to comply with the requirements of this Section 5.11(c) if
the Administrative Agent, in its sole discretion, determines that the cost of
such compliance is excessive in relation to the value of the collateral
security to be afforded thereby.


 


(d)  Notwithstanding
anything to the contrary in this Section 5.11 or any other Loan Document,
prior to the occurrence of the Ratings Event, no property other than Capital
Stock shall be required to become Collateral.


 


(e)  Promptly,
and in any event within 30 days (or such longer period as is reasonably
acceptable to the Administrative Agent), following the first date after the
Release Date on which the outstanding Indebtedness under this Agreement is rated
less than “Baa3” by Moody’s or less than “BBB-” by S&P, the Parent Borrower
shall (i) execute and deliver, and cause each Subsidiary Guarantor to
execute and deliver, to the Administrative Agent security documents, in form
and substance reasonably satisfactory to the Administrative Agent, pursuant to
which the Parent Borrower and each Subsidiary Guarantor shall grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in
all property (and types of property) of such Person that constituted Collateral
under the Guarantee and Collateral Agreement as in effect immediately prior to
the Release Date (and, for the avoidance of doubt, shall not include Capital
Stock not required to be pledged pursuant to Section 5.11(a)) and (ii) take,
and cause the relevant Subsidiaries to take, such actions as shall be necessary
or reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in Section 5.12, all at the expense of
the Loan Parties.


 


(f)  Notwithstanding
anything to the contrary in this Section 5.11 or any other Loan Document,
the Administrative Agent and the Lenders shall not have Liens on (and shall, at
the request and expense of the Parent Borrower, timely release any Liens
on):  (i) the assets transferred to
a Receivables Entity and assets of such Receivables Entity, (ii) the
Receivables and related assets (of the type specified in the definition of “Qualified
Receivables Transaction”) transferred, or in respect of which security interests
are granted, pursuant to a Qualified Receivables Transaction and (iii) if
the documentation relating to the Receivables sale, factoring or securitization
to which such Receivables Entity is a party expressly prohibits such a Lien,
the Capital Stock or debt (whether or not represented by promissory notes) of
or issued by a Receivables Entity to the Parent Borrower or any of its
Subsidiaries, in each case in connection with a Qualified Receivables
Transaction permitted by Section 6.6(c).


 


SECTION 5.12.                 Further
Assurances.  The Parent Borrower
will, and will cause each of the Subsidiaries to, execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
fixture filings, mortgages, deeds of trust and other documents), which may be
required under any applicable law, or which the Administrative Agent may
reasonably request, to effectuate the transactions contemplated by the Loan
Documents or to grant, preserve, protect or perfect the Liens created or
intended to be created by the Security Documents or the validity or priority of
any such Lien, all at the expense of the Loan Parties.  The Parent Borrower also agrees to provide to
the Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Security Documents.


 


SECTION 5.13.                 Post-Closing
Matters.  Within 60 days after the
Effective Date (or such longer period as is agreed to by the Administrative
Agent in its sole discretion), the Parent Borrower shall


 


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cause to be provided to the Administrative Agent, to the extent not
previously provided pursuant to Section 4.1(a)(iii), an Acknowledgement
and Consent, substantially in the form attached to the Guarantee and Collateral
Agreement, executed and delivered by each Issuer (as defined therein) that is
not a party to the Guarantee and Collateral Agreement.


 


ARTICLE VI



NEGATIVE COVENANTS


 


Until the Commitments have expired or terminated and
the principal of and interest (and premium, if any) on each Loan and all fees
payable hereunder have been paid in full and all Letters of Credit and Foreign
Credit Instruments have expired or terminated (or been fully cash
collateralized or otherwise supported in a manner consistent with the terms of Section 2.5(j)
or 2.6(m)(v), as applicable) and all LC Disbursements and Foreign Credit
Disbursements shall have been reimbursed, the Parent Borrower covenants and
agrees with the Lenders that:


 


SECTION 6.1.                       Financial
Condition Covenants.  (a)  Consolidated
Leverage Ratio.  The Parent Borrower
will not permit the Consolidated Leverage Ratio as at the last day of any
period of four consecutive fiscal quarters of the Parent Borrower to exceed
3.25 to 1.00.


 


(b)  Consolidated
Interest Coverage Ratio.  The Parent
Borrower will not permit the Consolidated Interest Coverage Ratio for any
period of four consecutive fiscal quarters of the Parent Borrower to be less
than 3.50 to 1.00.


 


SECTION 6.2.                       Indebtedness.  The Parent Borrower will not, and will not
permit any Subsidiary to, create, incur, assume (collectively, “Incur”)
or permit to exist (except as provided below) any Indebtedness, except:


 


(a)                                  Indebtedness created
under the Loan Documents;


 


(b)                                 subordinated debt of
the Parent Borrower (including any subordinated debt which extends, renews,
replaces or is in exchange for existing subordinated debt of the Parent
Borrower), so long as (i) such Indebtedness has no scheduled principal
payments prior to the date that is six months after the latest maturity date
then in effect for Loans hereunder, (ii) the covenants and defaults, taken
as a whole, contained in the Subordinated Debt Documents are not materially
more restrictive than those contained in this Agreement, as agreed to by the
Administrative Agent acting reasonably, and (iii) the Subordinated Debt
Documents contain subordination terms that are no less favorable in any
material respect to the Lenders than those applicable to offerings of “high-yield”
subordinated debt by similar issuers of similar debt at or about the same time,
as agreed to by the Administrative Agent acting reasonably;


 


(c)                                  Indebtedness existing
on the Effective Date and set forth in Schedule 6.2 and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof;


 


(d)                                 Indebtedness of the
Parent Borrower to any Subsidiary and of any Subsidiary to the Parent Borrower
or any other Subsidiary; provided that Indebtedness pursuant to this
paragraph (d) of any Subsidiary that is not a Wholly Owned Subsidiary
Guarantor shall be subject to Section 6.5;


 


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(e)                                  Indebtedness
consisting of reimbursement obligations under surety, indemnity, performance,
warranty, release and appeal bonds, bank guarantees, letters of credit, and
guarantees of any of the foregoing in each case securing obligations not
constituting Indebtedness for borrowed money and obtained in the ordinary
course of business;


 


(f)                                    Guarantees by the
Parent Borrower of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Parent Borrower or any other Subsidiary; provided
that (i) Guarantees pursuant to this paragraph (f) of Indebtedness of
any Subsidiary that is not a Wholly Owned Subsidiary Guarantor shall be subject
to Section 6.5, (ii) a Subsidiary shall not Guarantee the
Indebtedness of any Loan Party unless such Subsidiary has also Guaranteed the
Obligations pursuant to the Guarantee and Collateral Agreement and (iii) Guarantees
pursuant to this paragraph (f) of Subordinated Debt shall be
subordinated to the Guarantee of the Obligations pursuant to the Guarantee and
Collateral Agreement on terms no less favorable to the Lenders than the
subordination provisions of the Subordinated Debt;


 


(g)                                 (i) Indebtedness
of the Parent Borrower or any Subsidiary Incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to
the acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof, provided
that such Indebtedness (other than any such extension, renewal or replacement)
is Incurred prior to or within 90 days after such acquisition or the completion
of such construction or improvement and (ii) Attributable Debt in
connection with Sale/Leaseback Transactions involving fixed or capital assets,
in the case of either clause (i) or (ii) if at the time of Incurrence
thereof, after giving effect thereto, the aggregate principal amount of all
Specified Indebtedness shall not exceed an amount equal to 15% of the Total
Consolidated Assets;


 


(h)                                 Indebtedness of any
Person that becomes a Subsidiary after the Effective Date and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (i) such
Indebtedness (other than any such extension, renewal or replacement) exists at
the time such Person becomes a Subsidiary and is not created in contemplation
of or in connection with such Person becoming a Subsidiary and (ii) at the
time of Incurrence thereof, after giving effect thereto, the aggregate
principal amount of all Specified Indebtedness shall not exceed an amount equal
to 15% of the Total Consolidated Assets;


 


(i)                                     Indebtedness to
finance the general working capital needs of the Parent Borrower and its
Subsidiaries, Incurred after the Domestic Revolving Maturity Date and the
Global Revolving Maturity Date, in an aggregate principal amount not to exceed
the amount of the Revolving Commitments as in effect immediately prior to such
date; provided that (i) the Revolving Commitments shall have been
or shall concurrently be terminated, the Revolving Loans and Swingline Loans
shall have been or shall concurrently be repaid in full, all LC Disbursements
shall have been repaid in full and all Letters of Credit shall have been or
shall concurrently be cancelled or replaced and (ii) the terms and
conditions of such replacement working capital facility (including any
arrangements for sharing of Collateral) shall be reasonably satisfactory to the
Required Lenders (determined after giving effect to the termination of the
Revolving Commitments);


 


(j)                                     letters of credit,
bank guarantees or surety instruments obtained in the ordinary course of
business in an aggregate face amount not exceeding $150,000,000 at any time
outstanding (which may be secured); provided that, in the case of any
such Indebtedness that is


 


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secured, at the time of Incurrence thereof, after giving effect
thereto, the aggregate principal amount of all Specified Indebtedness shall not
exceed an amount equal to 15% of the Total Consolidated Assets;


 


(k)                                  Indebtedness of
Foreign Subsidiaries and any other Subsidiary that is not a Loan Party; provided
that, at the time of Incurrence thereof, after giving effect thereto, the
aggregate principal amount of all Specified Indebtedness shall not exceed an
amount equal to 15% of the Total Consolidated Assets (with the amount of
Indebtedness under overdraft lines or cash management facilities being
determined net of cash held for the benefit of the relevant Subsidiary by the
institution creating such overdraft or cash management facility);


 


(l)                                     unsecured
Indebtedness of the Parent Borrower (and any unsecured Guarantees of such
Indebtedness by Subsidiary Guarantors to the extent permitted by Section 6.2(f))
and any extensions, renewals and replacements of any such Indebtedness that are
Incurred by the Parent Borrower, that are unsecured and that do not increase
the outstanding principal amount of such Indebtedness (with Guarantees by
Subsidiary Guarantors as permitted by Section 6.2(f)); provided
that, with respect to all Indebtedness permitted by this paragraph (l)
(including any extension, renewal or replacement thereof), (i) such
Indebtedness has no scheduled principal payments prior to the latest maturity
date then in effect for Loans hereunder, (ii) the covenants and defaults,
taken as a whole, contained in the documentation for such Indebtedness are not
materially more restrictive than those contained in this Agreement, as agreed
to by the Administrative Agent acting reasonably, (iii) no Default or
Event of Default shall have occurred and be continuing, or would occur after
giving effect to the Incurrence of such Indebtedness, and (iv) the Parent
Borrower shall be in compliance, on a pro  forma basis after
giving effect to the Incurrence of such Indebtedness, with the covenants
contained in Section 6.1, in each case recomputed as at the last day of
the most recently ended fiscal quarter of the Parent Borrower for which the
relevant information is available as if such Incurrence had occurred on the
first day of each relevant period for testing such compliance (as demonstrated
in a certificate of a Financial Officer delivered to the Administrative Agent
not more than two Business Days prior to such Incurrence);


 


(m)                               (i) Indebtedness of
the Parent Borrower consisting of LYONs and Guarantees of LYONs by Subsidiaries
to the extent permitted by Section 6.5(e) (it being understood that
(x) LYONS and Guarantees of LYONS by Subsidiaries as in effect on the Effective
Date are permitted by this clause (m) and (y) the conversion described in
clause (b) of the definition of “LYONs” shall be deemed to be a new
Incurrence of Indebtedness and shall be permitted only if clauses (A) through
(D) of this paragraph (m)(i) are satisfied at the time of such
conversion) representing aggregate gross proceeds not exceeding $820,000,000, provided
that (A) such Indebtedness has no scheduled principal payments (it being
acknowledged that any mandatory redemptions or conversions at the option of the
holders of the LYONs pursuant to LYONs Put/Conversion Rights are not scheduled
principal payments) prior to the date that is six months after the latest
maturity date then in effect for Loans hereunder, (B) the covenants and
defaults, taken as a whole, contained in the documentation for such
Indebtedness are not materially more restrictive than those contained in this
Agreement, as agreed to by the Administrative Agent acting reasonably, (C) no
Default or Event of Default shall have occurred and be continuing, or would
occur after giving effect to the Incurrence of such Indebtedness and (D) the
Parent Borrower shall be in compliance, on a pro  forma basis
after giving effect to the Incurrence of such Indebtedness, with the covenants
contained in Section 6.1, in each case recomputed as at the last day of
the most recently ended fiscal quarter of the Parent Borrower for which the
relevant information is available as if such Incurrence had occurred (and, in
the case of the conversion described in clause (b) of the definition of “LYONs”,
as if cash interest on the LYONs had


 


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become payable) on the first day of each relevant period for testing
such compliance (as demonstrated in a certificate of a Financial Officer
delivered to the Administrative Agent not more than two Business Days prior to
such Incurrence) and (ii) any Indebtedness of the Parent Borrower (with
Guarantees by Subsidiary Guarantors otherwise permitted by this Agreement)
Incurred to refinance any of the foregoing so long as (A) such
Indebtedness has no scheduled principal payments (it being acknowledged that if
such refinancing Indebtedness has substantially the same terms as the LYONs,
any mandatory redemptions or conversions at the option of the holders of the
such Indebtedness pursuant to substantially the same terms as the LYONs Put/Conversion
Rights are not scheduled principal payments) prior to the date that is six
months after the latest maturity date then in effect for Loans hereunder, (B) the
terms thereof, taken as a whole, are not materially more restrictive than the
Indebtedness being refinanced or are no more restrictive than those contained
in this Agreement, in each case as agreed by the Administrative Agent acting
reasonably and (C) the aggregate principal amount of the LYONs so
refinanced is not increased;


 


(n)                                 Receivables
Transaction Attributed Indebtedness and all yield, interest, fees, indemnities
and other amounts related thereto; provided that the related Qualified
Receivables Transaction shall be subject to Section 6.6(c);


 


(o)                                 Hedging Agreements, so
long as such agreements are not entered into for speculative purposes; and


 


(p)                                 other Indebtedness of
any Loan Party in an aggregate principal amount not exceeding $100,000,000 at
any time outstanding; provided that, in the case of any such
Indebtedness that is secured, at the time of Incurrence thereof, after giving
effect thereto, the aggregate principal amount of all Specified Indebtedness
shall not exceed an amount equal to 15% of the Total Consolidated Assets.


 


SECTION 6.3.                       Liens  The Parent Borrower will not, and will not
permit any Subsidiary to, Incur or permit to exist any Lien on any property or
asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including Receivables) or rights in respect of any thereof, except:


 


(a)                                  Liens created under
the Loan Documents;


 


(b)                                 Permitted
Encumbrances;


 


(c)                                  any Lien on any
property or asset of the Parent Borrower or any Subsidiary existing on the
Effective Date and set forth in Schedule 6.3; provided that (i) such
Lien shall not apply to any other property or asset of the Parent Borrower or
any Subsidiary (other than improvements, accessions, proceeds, dividends or
distributions in respect thereof and assets fixed or appurtenant thereto) and (ii) such
Lien shall secure only those obligations which it secures on the Effective Date
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;


 


(d)                                 any Lien existing on
any property prior to the acquisition thereof by the Parent Borrower or any
Subsidiary or existing on any property of any Person that becomes a Subsidiary
after the date hereof prior to the time such Person becomes a Subsidiary; provided
that (i) such Lien is not created in contemplation of or in connection
with such acquisition or such Person becoming a Subsidiary, as the case may be,
(ii) such Lien shall not apply to any other property of the Parent
Borrower or any Subsidiary (other than improvements, accessions, proceeds,
dividends or distributions in respect thereof and assets fixed or appurtenant
thereto) and (iii) such Lien shall


 


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secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be,
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;


 


(e)                                  Liens on fixed or
capital assets acquired, constructed or improved by the Parent Borrower or any
Subsidiary; provided that (i) such security interests secure
Indebtedness permitted by Section 6.2(g), (ii) such security
interests and the Indebtedness secured thereby (other than extensions, renewals
and replacements) are Incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such
security interests shall not apply to any other property or assets of the
Parent Borrower or any Subsidiary (other than improvements, accessions,
proceeds, dividends or distributions in respect thereof and assets fixed or
appurtenant thereto);


 


(f)                                    Liens securing
Indebtedness permitted by Section 6.2(i); provided that, if any
such Liens are on property that is not Collateral, then, contemporaneously with
the Incurrence of such Liens, effective provision is made to secure the
Obligations equally and ratably with the Indebtedness secured by such Liens for
so long as such Indebtedness is so secured;


 


(g)                                 Liens on property of
any Foreign Subsidiary or any other Subsidiary that is not a Loan Party
securing Indebtedness of such Subsidiary permitted by Section 6.2(j) or
(k);


 


(h)                                 Liens on assets
transferred to a Receivables Entity or other Person in connection with a
Qualified Receivables Transaction or on assets of a Receivables Entity, in each
case Incurred in connection with a Qualified Receivables Transaction securing
Indebtedness permitted by Section 6.2(n);


 


(i)                                     Liens not otherwise
permitted by this Section securing Indebtedness expressly permitted to be
secured by Section 6.2(p); provided that the aggregate book value
(determined as of the date such Loan is incurred) of the assets subject thereto
does not exceed (as to the Parent Borrower and all Subsidiaries) $130,000,000
at any one time; and


 


(j)                                     Liens not
otherwise permitted by this Section securing obligations or liabilities
(other than Indebtedness) in an amount not to exceed $50,000,000.


 


It is
understood that Liens pursuant to Sections 6.3(d), (e), (f), (g), (h) and (i) may
be Incurred only to the extent the corresponding Indebtedness is expressly
permitted to be Incurred pursuant to Section 6.2.


 


SECTION 6.4.                       Fundamental
Changes.  The Parent Borrower will
not, and will not permit any Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default or Event of Default shall have occurred
and be continuing;


 


(a)                                  any Person may merge
into the Parent Borrower in a transaction in which the Parent Borrower is the
surviving corporation;


 


(b)                                 any Person may merge
or consolidate with any Wholly Owned Subsidiary Guarantor so long as the
surviving entity is or becomes a Wholly Owned Subsidiary Guarantor;


 


(c)                                  any Subsidiary may
Dispose of its assets to the Parent Borrower or any Wholly Owned Subsidiary
Guarantor pursuant to a transaction of liquidation or dissolution;


 


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(d)                                 the Parent Borrower or
any Subsidiary may Dispose of any Subsidiary pursuant to a merger of such
Subsidiary in a Disposition permitted by Section 6.6;


 


(e)                                  any Foreign
Subsidiary or other Subsidiary that is not a Subsidiary Guarantor may merge or
consolidate with any other Person so long as the surviving entity is a
Subsidiary (provided that in the case of a merger or consolidation
involving a Foreign Subsidiary Borrower, the surviving entity is a Borrower) or
Dispose of its assets to any other Subsidiary pursuant to a transaction of
liquidation or dissolution; and


 


(f)                                    the Parent Borrower
may merge or consolidate into any other Person so long as (i) the
surviving entity assumes all the Obligations of the Parent Borrower hereunder
and under the other Loan Documents pursuant to a written agreement satisfactory
to the Administrative Agent, (ii) the surviving entity is organized under
the laws of a jurisdiction within the United States of America, (iii) no
Default or Event of Default shall have occurred and be continuing, or would
occur after giving effect to such merger, (iv) the Parent Borrower shall
be in compliance, on a pro  forma basis after giving effect to
such merger or consolidation, as applicable, with the covenants contained in Section 6.1,
in each case recomputed as at the last day of the most recently ended fiscal
quarter of the Parent Borrower for which the relevant information is available
as if such merger or consolidation had occurred on the first day of each
relevant period for testing such compliance (as demonstrated in a certificate
of a Financial Officer delivered to the Administrative Agent at least ten
Business Days prior to such merger or consolidation) and (v) all filings
have been made under the Uniform Commercial Code or otherwise that are required
in order for the Administrative Agent to continue at all times following such
merger or consolidation to have a valid, legal and perfected security interest
in all the Collateral to the same extent as prior to such merger or
consolidation.


 


It is understood that no transaction pursuant to this Section 6.4
shall be permitted unless any Investment or Disposition made in connection
therewith is also expressly permitted by Section 6.5 or 6.6, as
applicable.


 


SECTION 6.5.                       Investments,
Loans, Advances, Guarantees and Acquisitions.  The Parent Borrower will not, and will not
permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a Wholly Owned Subsidiary
prior to such merger) any Capital Stock of or evidences of Indebtedness or
other securities (including any option, warrant or other right to acquire any
of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any
other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit (collectively, “Investments”), except:


 


(a)                                  Permitted
Investments;


 


(b)                                 Investments existing
on the Effective Date and set forth on Schedule 6.5;


 


(c)                                  intercompany
Investments made by the Parent Borrower and its Subsidiaries in any Subsidiary
(other than any Receivables Entity) that, prior to such Investment, is a
Subsidiary; provided that, after giving effect to any such Investment
made on a particular date, the aggregate amount of outstanding Investments made
by Loan Parties after the Effective Date in or with respect to Subsidiaries
(other than any Receivables Entity) that are not Wholly Owned Subsidiary
Guarantors shall not exceed an amount equal to 10% of the Total Consolidated
Assets (it being understood that the amount of any intercompany Investment made
pursuant to this paragraph (c)


 


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in exchange for the forgiveness of any Indebtedness owing to the Person
in which such Investment is made shall be determined net of the amount of such
Indebtedness forgiven);


 


(d)                                 loans and advances to
employees of the Parent Borrower or any Subsidiary in the ordinary course of
business (including for travel, entertainment and relocation expenses) in an
aggregate amount for the Parent Borrower and its Subsidiaries not to exceed
$20,000,000 at any one time outstanding;


 


(e)                                  Guarantees
constituting Indebtedness permitted by Section 6.2; provided that (i) a
Subsidiary shall not Guarantee the Senior Notes, any Subordinated Debt, the
LYONs or any Other Permitted Debt unless (A) such Subsidiary also has
Guaranteed the Obligations pursuant to the Guarantee and Collateral Agreement, (B) in
the case of any Guarantee of Subordinated Debt, such Guarantee of the
Subordinated Debt is subordinated to such Guarantee of the Obligations on terms
no less favorable to the Lenders than the subordination provisions of the
Subordinated Debt and (C) such Guarantee provides for the release and
termination thereof, without action by any party, upon Disposition of the
relevant Subsidiary, (ii) the aggregate principal amount of Indebtedness
of Subsidiaries that are not Wholly Owned Subsidiary Guarantors that is
Guaranteed by any Loan Party shall be subject to the limitation set forth in
paragraph (c) above and (iii) a Subsidiary shall not Guarantee the
Indebtedness of any Loan Party unless such Subsidiary has also Guaranteed the
Obligations pursuant to the Guarantee and Collateral Agreement;


 


(f)                                    Permitted
Acquisitions;


 


(g)                                 Guarantees by the
Parent Borrower and its Subsidiaries of any Contractual Obligations (not
constituting Indebtedness) of the Parent Borrower or any Subsidiary;


 


(h)                                 intercompany
Investments in any Wholly Owned Subsidiary created by the Parent Borrower or
any of its Subsidiaries in connection with any corporate restructuring; provided
that (i) such newly-created Subsidiary is, or contemporaneously with the
consummation of such restructuring becomes, a Wholly Owned Subsidiary
Guarantor, (ii) all property transferred to such newly-created Subsidiary
that constituted Collateral shall continue to constitute Collateral as to which
the Administrative Agent has a first priority perfected security interest,
subject to Permitted Encumbrances, and (iii) contemporaneously with the
consummation of such restructuring (A) the Capital Stock (and, after the
occurrence of the Ratings Event, the assets) of such newly-created Subsidiary
are pledged under the relevant Security Documents (except to the extent that
any of the foregoing would not otherwise be required pursuant to Section 5.11
to be so pledged on the next succeeding Collateral Date) and (B) the
Parent Borrower takes, and causes the relevant Subsidiary to take, such actions
as shall be necessary or reasonably requested by the Administrative Agent to
grant and perfect such Liens, including actions described in Section 5.12,
all at the expense of the Loan Parties;


 


(i)                                     (i) Investments
in the Emerson JV as at September 30, 2005 and (ii) additional
Investments in the Emerson JV in an aggregate amount from September 30,
2005 through and including the date of such Investment not to exceed
$75,000,000;


 


(j)                                     Investments
financed with Capital Stock of the Parent Borrower; provided that (i) the
Parent Borrower shall be in compliance, on a pro  forma basis
after giving effect to such Investment, with the covenants contained in Section 6.1,
in each case recomputed as at the last day of the most recently ended fiscal
quarter of the Parent Borrower for which the relevant information is available
as if such Investment had occurred on the first day of each relevant


 


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period for testing such compliance (as demonstrated, in the case of any
Investment for which the aggregate cost is greater than or equal to
$100,000,000, in a certificate of a Financial Officer delivered to the
Administrative Agent prior to the consummation of such Investment) and (ii) no
Default or Event of Default shall occur after giving effect to such Investment;


 


(k)                                  Investments comprised
of capital contributions (whether in the form of cash, a note or other assets)
to a Receivables Entity or otherwise resulting from transfers of assets
permitted by Section 6.6(c);


 


(l)                                     Investments
comprised of non-cash consideration received by the Parent Borrower or any
Subsidiary in connection with any Disposition permitted by Section 6.6(d) or
(f); provided that such non-cash consideration either (i) constitutes
not more than 25% of the aggregate consideration received in connection with
such Disposition or (ii) is comprised of securities, notes or other obligations
that are converted, sold or exchanged within 30 days of receipt thereof by the
Parent Borrower or such Subsidiary into cash; and


 


(m)                               Investments that are not
permitted by any other paragraph of this Section, so long as, after giving
effect to any such Investment, the aggregate amount of Investments (valued at
cost) at any one time outstanding shall not exceed $250,000,000.


 


The outstanding amount of any Investment shall be
equal to the sum of (x) the original cost of such Investment, plus (y)
the cost of all additions thereto, minus (z) any cash proceeds from the
disposition of or other cash distributions on such Investment, without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Investment; provided that the amount of
any Investment shall not be less than zero.


 


SECTION 6.6.                       Disposition
of Assets.  The Parent Borrower will
not, and will not permit any of its Subsidiaries to, Dispose of any asset,
including any Capital Stock owned by it (other than Capital Stock of the Parent
Borrower held in treasury by the Parent Borrower), nor will the Parent Borrower
permit any of it Subsidiaries to issue any additional Capital Stock of such
Subsidiary, except:


 


(a)                                  (i) sales of
inventory, obsolete or worn out equipment and Permitted Investments and (ii) leases
or licenses of real or personal property, in each case in the ordinary course
of business;


 


(b)                                 Dispositions to the
Parent Borrower or a Subsidiary; provided that any such Dispositions by
a Loan Party to a Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.5;


 


(c)                                  sales of Receivables
and related assets or an interest therein of the type specified in the
definition of “Qualified Receivables Transaction” pursuant to a Qualified
Receivables Transaction, provided that (i) each such transaction
shall be a Qualified Receivables Transaction, as agreed by the Administrative
Agent acting reasonably, and (ii) the aggregate amount of Receivables
Transaction Attributed Indebtedness at any time outstanding in respect of all
such Qualified Receivables Transactions shall not exceed $300,000,000;


 


(d)                                 Dispositions of assets
that are not permitted by any other paragraph of this Section; provided
that (i) the aggregate gross proceeds (including any non-cash proceeds,
determined on the basis of face amount in the case of notes or similar
consideration and on the basis of fair market value in the case of other
non-cash proceeds) of all assets Disposed of in reliance upon this paragraph (d) shall
not exceed, (A) during the period commencing on the


 


91





















 


Effective Date and ending on December 31, 2005, $300,000,000 and (B) in
the case of any fiscal year of the Parent Borrower thereafter, 10% of the Total
Consolidated Assets (provided, that (x) any such amount referred to in
this clause (B), if not so utilized in the fiscal year for which it is
permitted, may be carried over for utilization in the next succeeding fiscal
year and (y) Dispositions made pursuant to this clause (B) during any
fiscal year shall be deemed made, first, in respect of amounts permitted
for such fiscal year as provided in this clause (B) and, second, in
respect of amounts carried over from the prior fiscal year pursuant to clause
(x) above); and (ii) all Dispositions permitted by this paragraph (d) shall
be made for fair value and for at least 75% cash consideration;


 


(e)                                  Dispositions by the
Parent Borrower of all or any portion of its interest in the Emerson JV; and


 


(f)                                    Dispositions
consummated on or before December 31, 2006 by the Parent Borrower or a
Subsidiary of any assets that the Parent Borrower, in a public filing made with
the Securities Exchange Commission prior to the Effective Date, disclosed as
the subject of a proposed sale; provided that (i) all Dispositions
permitted by this paragraph (f) shall be made for fair value and for
at least 75% cash consideration and (ii) the aggregate consideration for
all such Dispositions permitted by this paragraph (f) shall not exceed
$150,000,000.


 


For purposes
of paragraphs (d) and (f) of this Section 6.6,


 


(i)                                     the following will
be deemed to be cash:


 


(A)                              the assumption by the
transferee of Indebtedness (other than subordinated Indebtedness or preferred
stock) of the Parent Borrower or of any Subsidiary (in which case, the Parent
or such Subsidiary will, without further action, be deemed to have applied such
deemed cash to Indebtedness in accordance with clause (b)(ii) of the
definition of “Net Proceeds”), provided that the amount of assumed
Indebtedness that is deemed to be cash shall not exceed $200,000,000 in the
aggregate from and after the Effective Date;


 


(B)                                securities, notes or
other obligations received by the Parent Borrower or any Subsidiary from the
transferee that are converted, sold or exchanged within 30 days of receipt
thereof by the Parent Borrower or such Subsidiary into cash (to the extent of
the cash received in such conversion, sale or exchange); and


 


(C)                                in the case of any
particular Disposition, promissory notes received by the Parent Borrower or any
Subsidiary from the transferee having an aggregate principal amount not to
exceed $10,000,000; and


 


(ii)                                  in the case of a
Disposition consisting of an Asset Swap, the Parent Borrower or such Subsidiary
shall only be required to receive cash in an amount equal to at least 75% of
the proceeds of such Disposition which are not part of the Asset Swap, provided
that at the time of such Asset Swap, after giving effect thereto, the aggregate
fair value (as determined at the time of such related Asset Swap and not
subject to later revaluation) of the assets of the Parent Borrower and its
Subsidiaries that are the subject of all such Asset Swaps from and after the
Effective Date shall not exceed an amount equal to 15% of the Total
Consolidated Assets.


 


SECTION 6.7.                       Sale
and Leaseback Transactions.  The
Parent Borrower will not, and will not permit any Subsidiary to, enter into any
arrangement (each, a “Sale/Leaseback Transaction”) providing


 


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for the leasing to the Parent Borrower or any Subsidiary of real or
personal property that has been or is to be (a) sold or transferred by the
Parent Borrower or any Subsidiary or (b) constructed or acquired by a
third party in anticipation of a program of leasing to the Parent Borrower or
any Subsidiary, in each case unless the Attributable Debt resulting therefrom
is permitted by Section 6.2(d) or 6.2(g).


 


SECTION 6.8.                       Restricted
Payments.  The Parent Borrower will
not, and will not permit any Subsidiary to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, or Incur any obligation
(contingent or otherwise) to do so, except:


 


(a)                                  the Parent Borrower
may (i) declare and pay dividends with respect to its Capital Stock
payable solely in shares of its Capital Stock or (ii) make other
distributions or payments payable solely in shares of its Capital Stock;


 


(b)                                 any Wholly Owned
Subsidiary may declare and pay Restricted Payments to its immediate parent;


 


(c)                                  any non-Wholly Owned
Subsidiary may declare and pay Restricted Payments ratably with respect to its
Capital Stock;


 


(d)                                 the Parent Borrower
may make Restricted Payments, not exceeding $10,000,000 during any fiscal year,
pursuant to and in accordance with stock option plans or other benefit plans
for management or employees of the Parent Borrower and its Subsidiaries;


 


(e)                                  the Parent Borrower
may repurchase its Capital Stock and may declare and pay cash dividends to the
holders of its Capital Stock; provided that if the Consolidated Leverage
Ratio, on a pro  forma basis immediately after giving effect to
such repurchase or dividend declaration (with the reference period for
Consolidated EBITDA being the most recent period of four consecutive fiscal
quarters for which the relevant financial information has been delivered
pursuant to Section 5.1(a) or (b) and with Consolidated Total
Debt being calculated without netting cash and cash equivalents), as
applicable, is


 


(i)                                     greater
than or equal to 2.50 to 1.00, the aggregate amount of such repurchases and
dividend declarations pursuant to this Section 6.8(e) shall not
exceed (A) $75,000,000 in any fiscal year plus (B) an
additional amount for all such repurchases and dividend declarations made after the Effective Date that is equal to the sum of (I)
$250,000,000 and (II) a positive amount equal to 50% of cumulative Consolidated
Net Income during the period from October 1, 2004 to the end of the most
recent fiscal quarter for which financial information is available preceding
the date of such repurchase or dividend declaration (or, in case such
Consolidated Net Income is a deficit, minus 100% of such deficit), and


 


(ii)                                  less than 2.50 to
1.00, the aggregate amount of such repurchases and dividend declarations
pursuant to this Section 6.8(e) shall be unlimited; and


 


provided  further that any
such cash dividends shall be paid within 60 days after the date of declaration
thereof;


 


(f)                                    the Parent Borrower
or any Subsidiary may make Restricted Payments to the extent required by the
terms of its joint venture or similar agreements relating to non-Wholly Owned
Subsidiaries, provided that no such Restricted Payment shall be
permitted by this clause


 


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(f) unless any Investment made in connection therewith is also
expressly permitted by Section 6.5;


 


(g)                                 the Parent Borrower
may redeem any or all of the LYONs;


 


(h)                                 the Parent Borrower or
any Subsidiary that is permitted to guarantee the LYONs may pay required
interest payments in respect of LYONs of the type described in clause (b) of
the definition thereof; and


 


(i)                                     the Parent
Borrower or any Subsidiary that is permitted to guarantee the LYONs may pay
LYONs Contingent Interest.


 


For the
purposes of this Section 6.8, redemptions of the LYONs shall include
purchases thereof and payments required to be made in connection with the
conversion thereof.


 


SECTION 6.9.                       Payments
of Certain Indebtedness; Certain Derivative Transactions.  The Parent Borrower will not, nor will it
permit any Subsidiary to:


 


(a)                                  make or agree or
offer to pay or make, directly or indirectly, any payment or other distribution
(whether in cash, securities or other property) of or in respect of principal
of or interest on any Subordinated Debt, or any payment or other distribution
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Subordinated Debt, except (i) extensions,
renewals, replacements or exchanges of any Subordinated Debt permitted by Section 6.2(b),
(ii) the payment of regularly scheduled interest and principal payments as
and when due in respect of any Subordinated Debt and (iii) any purchase or
other acquisition of any Subordinated Debt (A) made in consideration
for (or with the proceeds of) the issuance of common stock of the Parent
Borrower or (B) if the Consolidated Leverage Ratio for the most recent
period of four consecutive fiscal quarters for which financial statements have
been delivered pursuant to Section 5.1(a) or (b) is less than
2.50 to 1.00, other than, in each of clauses (ii) and (iii), any such
payments, purchases or other acquisitions of the Subordinated Debt prohibited
by the subordination provisions thereof; or


 


(b)                                 enter into any
derivative transaction or similar transaction obligating the Parent Borrower or
any of its Subsidiaries to make payments to any other Person as a result of a
change in market value of any Subordinated Debt or LYONs.


 


SECTION 6.10.                 Transactions
with Affiliates.  The Parent Borrower
will not, and will not permit any Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with,
any of its Affiliates, except:


 


(a)                                  transactions that are
at prices and on terms and conditions, taken as a whole, not less favorable to
the Parent Borrower or such Subsidiary than could be obtained on an arm’s-length
basis from unrelated third parties;


 


(b)                                 transactions between
or among the Parent Borrower and the Subsidiaries (other than a Receivables
Entity) not involving any other Affiliate;


 


(c)                                  any Restricted
Payment permitted by Section 6.8;


 


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(d)                                 any Qualified
Receivables Transaction expressly permitted by Section 6.6(c); and


 


(e)                                  any other transaction
expressly permitted by Section 6.5.


 


SECTION 6.11.                 Restrictive
Agreements.  The Parent Borrower will
not, and will not permit any Foreign Subsidiary Borrower or any Wholly Owned
Subsidiary Guarantor to enter into, Incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Parent Borrower or any Subsidiary to create, Incur or permit to
exist any Lien upon any of its property, (b) the ability of any Subsidiary
to pay dividends or other distributions with respect to any shares of its
capital stock or to make or repay loans or advances to the Parent Borrower or
any other Subsidiary or to Guarantee Indebtedness of the Parent Borrower or any
other Subsidiary or (c) the ability of any Subsidiary to transfer any of
its assets to the Parent Borrower or any other Subsidiary; provided
that:


 


(i)                                     the foregoing
shall not apply to restrictions and conditions imposed by law, Permitted
Encumbrances, any Loan Document, the Senior Note Indenture, any Subordinated
Debt Document or any Other Permitted Debt Document, provided that such
restrictions and conditions shall not restrict any Loan Party from complying
with the requirements of Section 5.11(b) (without giving effect to
clause (i)(C) thereof);


 


(ii)                                  the foregoing shall
not apply to restrictions and conditions existing on the Effective Date
identified on Schedule 6.11 (but shall apply to any amendment or
modification expanding the scope of any such restriction or condition);


 


(iii)                               the foregoing shall not
apply to restrictions and conditions contained in agreements relating to the
sale of a Subsidiary or assets pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is (or the assets
that are) to be sold and such sale is permitted hereunder;


 


(iv)                              the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to a
Qualified Receivables Transaction permitted by this Agreement if such
restrictions or conditions apply only to the relevant Receivables Entity;


 


(v)                                 clauses (a) and (c) above
shall not apply to restrictions and conditions contained in documentation
relating to a Subsidiary acquired in a Permitted Acquisition, provided
that such restriction or condition (x) existed at the time such Person became a
Subsidiary, (y) was not created in contemplation of or in connection with such
Person becoming a Subsidiary and (z) applies only to such Subsidiary;


 


(vi)                              the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness;


 


(vii)                           clauses (a) and (c) above
shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof; and


 


(viii)                        the foregoing shall not apply
to customary provisions in purchase money obligations for property acquired in
the ordinary course of business, Capital Leases Obligations, industrial revenue
bonds or operating leases that impose encumbrances or restrictions on the
property so acquired or covered thereby, restrictions on cash or other deposits
or net worth required by customers under contracts entered into in the ordinary
course of business and joint


 


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venture agreements or other similar arrangements if such provisions
apply only to the Person (and the equity interests in such Person) that is the
subject thereof.


 


SECTION 6.12.                 Amendment
of Material Documents, etc.  The
Parent Borrower will not, and will not permit any Subsidiary to, (a) amend,
modify, supplement or waive in any respect that is material and adverse to the
Lenders any of its rights under any Subordinated Debt Document or any LYONs
Documents (it being understood, however, that any amendment to provide
Guarantees in respect of the LYONs or any Subordinated Debt, which Guarantees
are permitted by this Agreement, would not constitute such an amendment) or (b) designate
any Indebtedness (other than obligations of the Loan Parties pursuant to the
Loan Documents) as “Designated Senior Indebtedness” (or any comparable concept)
that controls payment blockages for the purposes of the Subordinated Debt
Documents.


 


ARTICLE VII



EVENTS OF DEFAULT


 


If any of the following events (“Events of Default”)
shall occur:


 


(a)                                  any Borrower shall
fail to pay any principal of any Loan or any reimbursement obligation in
respect of any LC Disbursement or Foreign Credit Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or otherwise;


 


(b)                                 any Borrower shall
fail to pay any interest (or premium, if any) on any Loan or any fee or any
other amount (other than an amount referred to in paragraph (a) of this
Article) payable under this Agreement or any other Loan Document, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of five days;


 


(c)                                  any representation or
warranty made or deemed made by or on behalf of the Parent Borrower or any
Subsidiary in or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection
with any Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been materially incorrect when made or deemed
made;


 


(d)                                 the Parent Borrower
shall fail to observe or perform any covenant, condition or agreement contained
in Section 5.2, 5.4 (with respect to the existence of any Borrower) or
5.10 or in Article VI;


 


(e)                                  any Loan Party shall
fail to observe or perform any covenant, condition or agreement contained in
any Loan Document (other than those specified in paragraph (a), (b) or (d) of
this Article), and such failure shall continue unremedied for a period of
30 days after notice thereof to the Parent Borrower from the
Administrative Agent or the Required Lenders;


 


(f)                                    the Parent Borrower
or any Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness,
after the passage of any cure period provided in such Indebtedness;


 


(g)                                 (i) any event or
condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with the giving of
notice, if required) the holder or holders of any Material Indebtedness or any
trustee or agent on its or


 


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their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity (including, in any event, an “Event of Default” under
and as defined in the Senior Note Indenture, any Subordinated Debt Documents or
any Other Permitted Debt Documents) but excluding, in any event, (A) any
mandatory redemptions or conversions at the option of the holders of the LYONs
pursuant to LYONs Put/Conversion Rights and (B) after the Term Loans have
been paid in full, any mandatory repurchases of the Senior Notes (and any other
Indebtedness that ranks pari  passu in right of payment to the
Obligations) made in accordance with the Senior Note Indenture or any Other
Permitted Debt Document with “Excess Proceeds” from any “Asset Disposition”
pursuant to a required “Asset Disposition Offer” (as each such term was defined
in the Senior Note Indenture when the Senior Notes were initially issued) (or
any comparable concept in any Other Permitted Debt Document), or (ii) any
event or condition occurs that results in (A) an automatic termination,
winddown or comparable event with respect to any Qualified Receivables
Transaction or (B) permits a notice of termination, a notice of winddown,
a notice of acceleration or any comparable notice to be given under any such Qualified
Receivables Transaction prior to the scheduled termination, winddown, maturity
or comparable event, provided that an event or condition described in
clause (ii) of this paragraph (g) shall not at any time constitute an
Event of Default unless, at such time, one or more events or conditions of the
type described in clauses (i) and (ii) of this paragraph (g) shall
have occurred and be continuing with respect to Indebtedness, obligations in
respect of Hedging Agreements and/or Qualified Receivables Transactions in an
aggregate outstanding amount exceeding $75,000,000;


 


(h)                                 an involuntary
proceeding shall be commenced or an involuntary petition shall be filed seeking
(i) liquidation, reorganization or other relief in respect of the Parent
Borrower or any Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Parent Borrower or any Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;


 


(i)                                     the Parent
Borrower or any Subsidiary shall (i) voluntarily commence any proceeding
or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or petition
described in paragraph (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Parent Borrower or any Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;


 


(j)                                     the Parent
Borrower or any Subsidiary shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;


 


(k)                                  one or more judgments
for the payment of money in an aggregate amount in excess of $50,000,000 shall
be rendered against the Parent Borrower, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period of
60 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach
or levy upon any assets of the Parent Borrower or any Subsidiary to enforce any
such judgment;


 


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(l)                                     an ERISA Event
shall have occurred that, in the opinion of the Required Lenders, when taken
together with all other ERISA Events that have occurred, could reasonably be
expected to have a Material Adverse Effect;


 


(m)                               the guarantee contained
in Section 2 of the Guarantee and Collateral Agreement shall cease, for
any reason, to be in full force and effect or any Loan Party or any Affiliate
of any Loan Party shall so assert;


 


(n)                                 any Lien purported to
be created under any Security Document shall cease to be, or shall be asserted
by any Loan Party or any Affiliate of any Loan Party not to be, a valid and
perfected Lien on any Collateral (other than immaterial Collateral), with the priority
required by the applicable Security Document;


 


(o)                                 the Subordinated Debt
or any Guarantees thereof shall cease, for any reason, to be validly
subordinated to the Obligations or the obligations of the Subsidiary Guarantors
under the Guarantee and Collateral Agreement, as the case may be, as provided
in the Subordinated Debt Documents, or any Loan Party, any Affiliate of any
Loan Party, the trustee in respect of the Subordinated Debt or the holders of
at least 25% in aggregate principal amount of the Subordinated Debt shall so
assert; or


 


(p)                                 a Change of Control
shall occur;


 


then, and in every such event (other than an event
with respect to any Borrower described in paragraph (h) or (i) of
this Article), and at any time thereafter during the continuance of such event,
the Administrative Agent may, and at the request of the Required Lenders shall,
by notice to the Parent Borrower, take either or both of the following actions,
at the same or different times:  (i) terminate the Commitments,
and thereupon the Commitments shall terminate immediately, and (ii) declare
the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest (and premium, if
any) thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each Borrower; and in case of any event with respect to any Borrower described
in paragraph (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest (and premium, if any) thereon and all fees and
other obligations of the Borrowers accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Borrower.


 


ARTICLE VIII



THE ADMINISTRATIVE AGENT


 


Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent 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 of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.  For the purposes of Article 2692 of the
Civil Code of Quebec and without limiting the generality of the foregoing, each
Canadian Lender hereby irrevocably designates and appoints the Administrative
Agent in its capacity as agent and holder of a power of attorney of each such
Canadian Lender under this Agreement and the other Loan Documents.


 


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The bank 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 such bank and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Parent Borrower or any
Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent hereunder.


 


The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents.  Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Administrative Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.2), and (c) except
as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Parent Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
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 with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.2) or
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 written notice thereof is
given to the Administrative Agent by the Parent Borrower or a Lender, and 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 any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to the
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 believed
by it to be genuine and to have been signed or sent 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 be made
by the proper Person, and shall not incur any liability for relying
thereon.  The Administrative Agent may
consult with legal counsel (who may be counsel for any 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.


 


The Administrative Agent may perform any and all its
duties and exercise its rights and powers 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 its duties and exercise its rights and powers
through their respective Related Parties. 
The exculpatory provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Related Parties of each 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.


 


Subject to the appointment and acceptance of a
successor to the Administrative Agent as provided in this paragraph, the
Administrative Agent may resign at any time by notifying the Lenders and the
Parent Borrower.  Upon any such
resignation, the Required Lenders shall have the right, in


 


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consultation with the Parent Borrower, to appoint a
successor.  If no 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, appoint a successor Administrative Agent which shall be
a bank with an office in New York, New York, or an Affiliate of any such
bank.  Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder.  The fees payable by any Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Parent Borrower and such successor.  After the Administrative Agent’s resignation
hereunder, the provisions of this Article and Section 9.3 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 it was acting as Administrative
Agent.


 


Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent, any other Lender or any of
their respective affiliates and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement.  Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, any other Lender or any of their respective affiliates
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 related
agreement or any document furnished hereunder or thereunder.


 


For the avoidance of doubt, each of the foregoing
references to the Administrative Agent and the Lenders shall be deemed to
include (a) the Canadian Administrative Agent and the Canadian Lenders and
(b) the Foreign Trade Facility Agent and the Foreign Issuing Lenders, as
applicable.  Neither the Syndication
Agent nor any Documentation Agent shall have any duties or responsibilities
hereunder in its capacity as such.


 


ARTICLE IX



MISCELLANEOUS


 


SECTION 9.1.                       Notices.  Except in the case of notices and other
communications expressly permitted to be given by telephone, 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 telecopy, as follows:


 


(a)                                  if to the Parent
Borrower, to it at 13515 Ballantyne Corporate Place, Charlotte, North Carolina
28277, attention of Treasurer and Chief Financial Officer (Telecopy No. 704-752-7487),
and if to any Foreign Subsidiary Borrower, to it at its address (or telecopy
number) specified in the relevant Borrowing Subsidiary Agreement with a copy to
the Parent Borrower at its address (or telecopy number) specified above;


 


(b)                                 if to the
Administrative Agent, as applicable, (i) to J.P. Morgan Europe Limited,
125 London Wall, London, England, Attention of Caroline Walsh (Telecopy No. 44-207-777-2360),
(ii) to The Bank of Nova Scotia, 44 King Street West, Toronto, Ontario,
Canada M5H 1H1, attention of John Hall (Telecopy No. 416-866-5991), (iii) to
JPMorgan Chase Bank, Agent Bank Services Group, 1111 Fannin, Tenth Floor,
Houston, Texas 77002, attention of Stephanie Sever (Telecopy No. 713-750-2666),
or (iv) to Deutsche Bank AG, Trade Center, Königsalle 45 –


 


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47, 40212 Düsseldorf, Germany, attention of Roland Stephan or Irmgard
Kleinsteinberg (Telecopy No. 49-211-883-9386; E-mail:  spx-ftf.agent@db.com), in each case referred
to in clause (i), (ii) or (iii) above, with a copy to JPMorgan Chase
Bank, 270 Park Avenue, New York, New York 10017, Attention of Randolph Cates
(Telecopy No. 212-270- 3279); and


 


(c)                                  if to any other
Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.


 


Any party hereto may change its address or telecopy
number for notices and other communications hereunder by notice to the other
parties hereto.  All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt.  Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender.  The Administrative Agent or any Loan Party
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.


 


SECTION 9.2.                       Waivers;
Amendments.  (a)  No failure or
delay by the Administrative Agent or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.  The rights and remedies
of the Administrative Agent and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have.  No waiver of
any provision of any Loan Document or consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given.  Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit or a Foreign Credit Instrument shall not be construed as a waiver of any
Default or Event of Default, regardless of whether the Administrative Agent or
any Lender may have had notice or knowledge of such Default at the time.


 


(b)  Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except, in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by the Required
Lenders and each Loan Party party to the relevant Loan Document, or, with the
written consent of the Required Lenders, the Administrative Agent and each Loan
Party party to the relevant Loan Document; provided that no such
agreement shall:


 


(i)                                     increase the
Commitment of any Lender without the written consent of such Lender;


 


(ii)                                  reduce the principal
amount of or subordinate the principal of any Loan, LC Disbursement or Foreign
Credit Disbursement, or reduce the rate of interest thereon, or reduce any
premium or fees payable hereunder, without the written consent of each Lender
directly affected thereby;


 


(iii)                               extend the final
scheduled date of maturity of any Loan, or postpone the scheduled date of
payment of the principal amount of any Loan, LC Disbursement or Foreign Credit
Disbursement, or any interest (or premium, if any) thereon, or any fees payable
hereunder,


 


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or reduce the amount of, waive, excuse or subordinate any such payment,
or postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender directly affected thereby;


 


(iv)                              require any Lender to
make Loans having an Interest Period of one year or longer, without the written
consent of such Lender;


 


(v)                                 amend, modify or waive
any provision of this Agreement in any manner that would change the application
of mandatory prepayments hereunder disproportionately as among the Facilities
without the written consent of the Majority Facility Lenders in respect of each
Facility adversely affected thereby;


 


(vi)                              amend, modify or waive
the first sentence of Section 2.13(a) without the written consent of
each Lender directly affected thereby;


 


(vii)                           change any of the provisions
of this Section or the definition of “Required Lenders” or “Majority
Facility Lenders” or any other provision of any Loan Document specifying the
number or percentage of Lenders (or Lenders of any Class) required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender (or each Lender
of such Class, as the case may be);


 


(viii)                        release or subordinate the
Guarantee from the Parent Borrower or all or substantially all of the
Guarantees from the Subsidiary Guarantors under the Guarantee and Collateral
Agreement (except as expressly provided in the Loan Documents), without the
written consent of each Lender; or


 


(ix)                                release or subordinate
all or substantially all of the Liens of the Security Documents on the
Collateral (except as expressly provided in the Loan Documents), without the
written consent of each Lender.


 


(c)  In
addition, notwithstanding the foregoing:


 


(i)                                     this Agreement may
be amended with the written consent of the Administrative Agent, the Parent
Borrower and the Lenders providing the relevant Replacement Term Loans (as
defined below) to permit the refinancing of all outstanding Initial Term Loans
or all outstanding Incremental Term Loans (“Refinanced Term Loans”) with
a replacement “A” or “B” term loan tranche, as applicable, hereunder (“Replacement
Term Loans”), provided that (A) the aggregate principal amount
of such Replacement Term Loans shall not exceed the aggregate principal amount
of such Refinanced Term Loans, (B) the Applicable Rate for such
Replacement Term Loans shall not be higher than the Applicable Rate for such
Refinanced Term Loans, (C) the weighted average life to maturity of such
Replacement Term Loans shall not be shorter than the weighted average life to
maturity of such Refinanced Term Loans at the time of such refinancing and (D) all
other terms applicable to such Replacement Term Loans shall be substantially
identical to, or less favorable to the Lenders providing such Replacement Term
Loans than, those applicable to such Refinanced Term Loans, except to the
extent necessary to provide for covenants and other terms applicable to any
period after the latest final maturity of the Term Loans in effect immediately
prior to such refinancing;


 


(ii)                                  this Agreement may be
amended to provide for the increases in the Commitments and/or Incremental Term
Loans contemplated by Section 2.1(b), and matters related thereto, upon (A) execution
and delivery by the Parent Borrower, the Administrative Agent and each Lender


 


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increasing its Commitment and/or providing Incremental Term Loans of an
Incremental Facility Activation Notice and (B) such other documents with
respect thereto as the Administrative Agent shall reasonably request;


 


(iii)                               this Agreement may be
amended (A) to add any Foreign Subsidiary of the Parent Borrower as a Foreign
Subsidiary Borrower under the Global Revolving Facility upon execution and
delivery by the Parent Borrower, such Foreign Subsidiary and the Administrative
Agent of a Borrowing Subsidiary Agreement providing for such Subsidiary to
become a Foreign Subsidiary Borrower under the Global Revolving Facility and (B) to
remove any Subsidiary as a Foreign Subsidiary Borrower under the Global
Revolving Facility upon (x) written notice by the Parent Borrower and such
Subsidiary to the Administrative Agent to such effect and (y) repayment in full
of all outstanding Obligations of such Foreign Subsidiary Borrower under the
Global Revolving Facility;


 


(iv)                              this Agreement may be
amended (A) to add any Foreign Subsidiary of the Parent Borrower as a
Foreign Subsidiary Borrower under the Foreign Trade Facility upon execution and
delivery by the Parent Borrower, such Foreign Subsidiary, the Foreign Trade
Facility Agent and the Administrative Agent of a Borrowing Subsidiary Agreement
providing for such Subsidiary to become a Foreign Subsidiary Borrower under the
Foreign Trade Facility and (B) to remove any Subsidiary as a Foreign
Subsidiary Borrower under the Foreign Trade Facility upon (x) written notice by
the Parent Borrower and such Subsidiary to the Foreign Trade Facility Agent and
the Administrative Agent to such effect, (y) repayment in full of all
outstanding Obligations of such Foreign Subsidiary Borrower under the Foreign
Trade Facility and (z) the expiration or termination (or full cash
collateralization or provision of other credit support in a manner consistent
with the terms of Section 2.6(m)(v)) of all Foreign Credit Instruments
issued for the account of such Foreign Subsidiary Borrower; and


 


(v)                                 this Agreement may be
amended (A) to change any of the mechanics applicable to Foreign Credit
Instruments set forth in Section 2.6, with the written consent of the
Administrative Agent, the Foreign Trade Facility Agent, the Parent Borrower and
the Majority Facility Lenders in respect of the Foreign Trade Facility, and (B) to
change any of the mechanics applicable to Foreign Credit Instruments set forth
in Section 2.6 solely to the extent necessary to permit a Foreign Credit
Instrument to be issued in a particular country in accordance with applicable
local Requirements of Law, with the written consent of the Administrative
Agent, the Foreign Trade Facility Agent, each Foreign Issuing Lender directly
affected thereby and the Parent Borrower; provided that (x) no amendment
pursuant to this clause (v) shall have the effect of making any change
described in the proviso to Section 9.2(b) and (y) no amendment
pursuant to clause (B) above shall have the effect of making any change to
Section 2.6 in respect of Foreign Credit Instruments (and any related
Foreign Trade Exposure) issued or to be issued outside of such country.


 


SECTION 9.3.                       Expenses;
Indemnity; Damage Waiver.  (a) 
The Parent 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 and administration of the Loan Documents or any
amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated),
including the reasonable fees and disbursements of counsel to the
Administrative Agent, with statements with respect to the foregoing to be submitted
to the Parent Borrower prior to the Effective Date (in the case of amounts to
be paid on the Effective Date) and from time to time thereafter on a quarterly
basis or such other periodic basis as the Administrative Agent shall deem
appropriate, (ii) all reasonable out-of-pocket


 


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


 


(b)  The
Parent Borrower shall indemnify the Administrative Agent and each Lender, and
each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from,
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including the fees, charges and disbursements of any counsel for
any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with, or as a result of (i) the execution, delivery,
enforcement, performance and administration of any Loan Document or any other
agreement, letter or instrument delivered in connection with the transactions
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan, Letter of
Credit or Foreign Credit Instrument or the use of the proceeds therefrom
(including any refusal by an Issuing Lender or Foreign Issuing Lender to honor
a demand for payment under a Letter of Credit or Foreign Credit Instrument if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit or Foreign Credit Instrument, as
applicable), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property currently or formerly owned or operated by
the Parent Borrower or any of its Subsidiaries, or any Environmental Liability
related in any way to the Parent Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence, bad faith or willful
misconduct of such Indemnitee.


 


(c)  To
the extent that the Parent Borrower fails to pay any amount required to be paid
by it to the Administrative Agent, any Issuing Lender, any Foreign Issuing Lender
or the Swingline Lender under paragraph (a) or (b) of this Section,
each Lender severally agrees to pay to the Administrative Agent, such Issuing
Lender, Foreign Issuing Lender or the Swingline Lender, as the case may be,
such Lender’s pro  rata share (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, such Issuing Lender, such
Foreign Issuing Lender or the Swingline Lender in its capacity as such.  For purposes hereof, a Lender’s “pro  rata
share” shall be determined based upon its share of the sum of the total
Revolving Exposures, outstanding Term Loans and unused Commitments at the time;
provided that (i) in the case of amounts owing to any Issuing
Lender or the Swingline Lender, in each case in its capacity as such, a Lender’s
“pro  rata share” shall be determined based solely upon its share
of the sum of Domestic Revolving Exposures and unused Domestic Revolving
Commitments at the time and (ii) in the case of amounts owing to any
Foreign Issuing Lender, in its capacity as such, a Lender’s “pro  rata
share” shall be determined based solely upon its share of the sum of Foreign
Trade Exposures and unused Foreign Trade Commitments at the time.


 


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(d)  To
the extent permitted by applicable law, no Borrower shall assert, and each
Borrower 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 or any agreement or instrument contemplated hereby, the
Transactions, any Loan, Letter of Credit or Foreign Credit Instrument or the
use of the proceeds thereof.


 


(e)  All
amounts due under this Section shall be payable not later than 15 days
after written demand therefor. 
Statements payable by the Parent Borrower pursuant to this Section shall
be sent to Attention of Treasurer and Chief Financial Officer (Telephone No. 704-752-4400)
(Telecopy No. 704-752-7487), at the address of the Parent Borrower set
forth in Section 9.1, or to such other Person or address as may be
hereafter designated by the Parent Borrower in a written notice to the
Administrative Agent.


 


SECTION 9.4.                       Successors
and Assigns; Participations and Assignments.  (a)  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 a Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by a Borrower without such consent 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 and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)  Any
Lender may 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 at the time owing to it); provided that (i) except in
the case of an assignment to a Lender or a Lender Affiliate, each of the Parent
Borrower and the Administrative Agent must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld or delayed), provided
that the consent of the Administrative Agent shall be required for any
assignment to an assignee in respect of any Revolving Facility, (ii) except
in the case of an assignment to a Lender or a Lender Affiliate or an assignment
of the entire remaining amount of the assigning Lender’s Commitment or Loans,
the amount of the Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
(x) in the case of an assignment of a Revolving Commitment, Revolving Loan or
Foreign Credit Instrument, be less than $5,000,000, and (y) in the case of an
assignment of a Term Loan Commitment or a Term Loan, be less than $1,000,000,
unless the Parent Borrower and the Administrative Agent otherwise consent, (iii) the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500, (iv) the assignee, if not already a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire, (v) no
assignment of Global Revolving Commitments or Global Revolving Loans may be
made to an assignee that cannot make Loans in each of the Qualified Global
Currencies (other than Canadian dollars), (vi) no assignment of Canadian
Commitments or Canadian Dollar Loans may be made to an assignee that cannot
make Loans in each of the Qualified Global Currencies and (vii) no assignment
of Foreign Trade Commitments or Foreign Credit Instruments (except to a Lender
or a Lender Affiliate) may be made without the prior written consent of the
Foreign Trade Facility Agent; and provided
further that any consent of any Borrower otherwise required under this
paragraph shall not be required if an Event of Default under paragraph (a),
(b), (h) or (i) of Article VII has occurred and is
continuing.  Any such assignment need not
be ratable as among the Facilities. 
Subject to acceptance and recording thereof pursuant to paragraph (d) of
this Section, from and after the effective date specified in each Assignment
and Acceptance the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned


 


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by such Assignment and
Acceptance, 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 Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance 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 2.17, 2.18, 2.19 and 9.3).  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
paragraph 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
paragraph (e) of this Section.


 


(c)  The
Administrative Agent, acting for this purpose as an agent of the Parent
Borrower, shall maintain at one of its offices in The City of New York a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans (whether or not evidenced by a promissory
note), LC Disbursements and Foreign Credit Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and each Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by the Parent Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.


 


(d)  Upon
its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee is already a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register.  No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.  Any assignment or
transfer of all or part of a Loan evidenced by a promissory note shall be
registered as to both principal and interest on the Register only upon
surrender for registration of assignment or transfer of the promissory note
evidencing such loan, accompanied by a duly executed Assignment and Acceptance,
and thereupon one or more new promissory notes in the same aggregate principal
amount shall be issued to the designated Assignee and the old promissory notes
shall be returned by the Administrative Agent to the Parent Borrower marked “cancelled”.


 


(e)  Any
Lender may, without the consent of any Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the 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) each Borrower, the Administrative Agent and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.  In no event shall any Participant under any
such participation have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest (or premium, if any) on, the Loans
or any fees payable hereunder, or postpone the date of the final maturity of
the Loans, in each case to the extent subject to such participation.  Subject to paragraph (f) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.17, 2.18 and 2.19 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section, provided that, in the case of Section 2.19, such
Participant shall have complied with the requirements of said section.  To the extent permitted by law, 


 


106





















 


each Participant also shall be
entitled to the benefits of Section 9.8 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.20(c) as though it
were a Lender.


 


(f)  A
Participant shall not be entitled to receive any greater payment under Section 2.17
or 2.19 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 Parent Borrower’s prior
written consent.


 


Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided
that any foreclosure or similar action by such pledgee or assignee shall be
subject to the provisions of this Section 9.4 concerning assignments; and provided,
further that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.  In the case of any Lender that is a fund that
invests in bank loans, such Lender may, without the consent of any Borrower or
the Administrative Agent, assign or pledge a security interest in all or any
portion of its rights under this Agreement and/or pledge all or any portion of
any instrument evidencing its rights as a Lender under this Agreement to any
trustee for, or any other representative of, holders of obligations owed or
securities issued, by such fund, as security for such obligations or
securities; provided that any foreclosure or similar action by such
trustee or representative shall be subject to the provisions of this Section 9.4
concerning assignments.


 


SECTION 9.5.                       Survival.  All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit and Foreign Credit Instruments, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest (or premium, if any) on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit or Foreign Credit Instrument is outstanding and so long
as the Commitments have not expired or terminated.  The provisions of Sections 2.17, 2.18, 2.19
and 9.3 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit,
the Foreign Credit Instruments or the Commitments or the termination of this
Agreement or any provision hereof.


 


SECTION 9.6.                       Counterparts;
Integration.  This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract.  This Agreement, the other Loan Document and
any separate letter agreements with respect to fees payable to the
Administrative Agent 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.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto (including the Lenders) and their
respective successors and assigns. 
Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.


 


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SECTION 9.7.                       Severability.  Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


 


SECTION 9.8.                       Right
of Setoff.   Upon any amount becoming
due and payable by any Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise), each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of a
Borrower against any of and all the obligations of a Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured.  The
rights of each Lender under this Section are in addition to other rights
and remedies (including other rights of setoff) which such Lender may have.


 


SECTION 9.9.                       Governing
Law; Jurisdiction; Consent to Service of Process.  (a)  This Agreement shall be construed
in accordance with and governed by the law of the State of New York.


 


(b)  Each
party to this Agreement hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court.  Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.  Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any
Borrower or its properties in the courts of any jurisdiction.


 


(c)  Each
party to this Agreement hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, (i) any objection
which it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section, (ii) the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court and (iii) any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages (as opposed to direct or
actual damages).


 


(d)  Each
party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.1.  In addition, each Foreign Subsidiary Borrower
agrees that service of process may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the Parent Borrower at its address for notices in Section 9.1.  Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.


 


SECTION 9.10.                 Acknowledgements.  Each Borrower hereby acknowledges that:


 


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(a)                                  it has been advised
by counsel in the negotiation, execution and delivery of this Agreement and the
other Loan Documents;


 


(b)                                 neither the
Administrative Agent nor any Lender has any fiduciary relationship with or duty
to any Borrower arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between Administrative Agent and
Lenders, on one hand, and the Borrowers, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and


 


(c)                                  no joint venture is
created hereby or by the other Loan Documents or otherwise exists by virtue of
the transactions contemplated hereby among the Lenders or among the Borrowers
and the Lenders.


 


SECTION 9.11.                 Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.


 


SECTION 9.12.                 Confidentiality.  Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Related
Parties, including accountants, legal counsel and other advisors (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 Governmental
Authority or rating agency, (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any
other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, 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 any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) to any direct or indirect
contractual counterparty in Hedging Agreements or other swap agreements
relating to this Agreement or such counterparty’s professional advisor, (h) with
the consent of the Parent Borrower, and (i) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than a Borrower.  For the purposes of this Section, “Information”
means all information received from any Borrower relating to a Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by such Borrower; provided that 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.


 


SECTION 9.13.                 WAIVER
OF JURY TRIAL.  EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY 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


 


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AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.


 


SECTION 9.14.                 Release
of Collateral.  (a)  On the
first date (the “Release Date”) on which the outstanding Indebtedness
under this Agreement is rated “Baa3” or better by Moody’s and “BBB-” or better
by S&P, so long as no Event of Default exists on such date, all Collateral
shall be released from the Liens created by the Guarantee and Collateral
Agreement and any other Security Document, all without delivery of any
instrument or performance of any act by any party, and all rights to the
Collateral shall revert to the Loan Parties.  At the request and sole expense of any Loan
Party following any such release, the Collateral Agent shall deliver to such
Loan Party any Collateral held by the Collateral Agent under any Security
Document, and execute and deliver to such Loan Party such documents as such
Loan Party shall reasonably request to evidence such release.


 


(b)  If any of the Collateral shall be
Disposed of by any Loan Party in a transaction permitted by this Agreement,
then the Administrative Agent, at the request and sole expense of such Loan
Party, shall execute and deliver to such Loan Party all releases or other
documents reasonably necessary or desirable for the release of the Liens
created by the Guarantee and Collateral Agreement and any other Security
Document on such Collateral.  At the
request and sole expense of the Parent Borrower, a Subsidiary Guarantor shall
be released from its obligations under the Guarantee and Collateral Agreement
and any other Security Document in the event that such Subsidiary Guarantor
ceases to be a Wholly Owned Subsidiary pursuant to a transaction expressly
permitted by this Agreement and if, as a result of such transaction, the Parent
Borrower and its Subsidiaries own less than 75% of the outstanding voting
Capital Stock of such Subsidiary Guarantor. 
In addition, at the request and sole expense of the Parent Borrower, not
more than twice during the term of this Agreement, a Subsidiary Guarantor and
the Subsidiaries of such Subsidiary Guarantor shall be released from their
respective obligations under the Guarantee and Collateral Agreement and any
other Security Document in the event that a portion of the Capital Stock of
such Subsidiary Guarantor is Disposed of in a transaction expressly permitted
by Section 6.6(d) (but which does not satisfy the requirements of the
preceding sentence), provided that the aggregate Consolidated EBITDA for
the most recently completed period of four consecutive fiscal quarters for
which financial statements have been delivered pursuant to Section 5.1 (in
each case determined at the time of such transaction) that is attributable to
the Subsidiaries released from their obligations hereunder pursuant to this
sentence shall not exceed $40,000,000. 
Notwithstanding the foregoing, in no event shall any Subsidiary be released
from its obligations under the Guarantee and Collateral Agreement or any other
Security Document, in the event that such Subsidiary is a guarantor of any
other Indebtedness of any Loan Party.


 


(c)  At
such time as the Loans, the Reimbursement Obligations, the Foreign Credit
Reimbursement Obligations and the other Obligations shall have been paid in
full, the Commitments have been terminated and no Letters of Credit or Foreign
Credit Instruments shall be outstanding (or shall have been fully cash collateralized
or otherwise supported in a manner consistent with the terms of Section 2.5(j)
or 2.6(m)(v), as applicable), the Collateral shall be released from the Liens
created by the Guarantee and Collateral Agreement and any other Security
Document, and each Security Document and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent and
each Loan Party thereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to the
Collateral shall revert to the Loan Parties. 
At the request and sole expense of any Loan Party following any such
termination, the Administrative Agent shall deliver to such Loan Party any Collateral
held by the Administrative Agent under any Security Document, and execute and
deliver to such Loan Party such documents as such Loan Party shall reasonably
request to evidence such termination.


 


110





















 


SECTION 9.15.                 Judgment
Currency.  (a)  The Borrowers’
obligations hereunder and under the other Loan Documents to make payments in a
specified currency (the “Obligation Currency”) shall not be discharged
or satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Administrative Agent or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Administrative Agent or such Lender under this
Agreement or the other Loan Documents. 
If, for the purpose of obtaining or enforcing judgment against any Loan
Party in any court or in any jurisdiction, it becomes necessary to convert into
or from any currency other than the Obligation Currency (such other currency
being hereinafter referred to as the “Judgment Currency”) an amount due
in the Obligation Currency, the conversion shall be made, at the rate of
exchange (as quoted by the Administrative Agent or if the Administrative Agent
does not quote a rate of exchange on such currency, by a known dealer in such
currency designated by the Administrative Agent) determined, in each case, as
of the Business Day immediately preceding the date on which the judgment is
given (such Business Day being hereinafter referred to as the “Judgment
Currency Conversion Date”).


 


(b)  If
there is a change in the rate of exchange prevailing between the Judgment
Currency Conversion Date and the date of actual payment of the amount due, the
Borrowers covenant and agree to pay, or cause to be paid, such additional
amounts, if any (but in any event not a lesser amount), as may be necessary to
ensure that the amount paid in the Judgment Currency, when converted at the
rate of exchange prevailing on the date of payment, will produce the amount of
the Obligation Currency which could have been purchased with the amount of
Judgment Currency stipulated in the judgment or judicial award at the rate of
exchange prevailing on the Judgment Currency Conversion Date.


 


(c)  For
purposes of determining any rate of exchange or currency equivalent for this
Section, such amounts shall include any premium and costs payable in connection
with the purchase of the Obligation Currency.


 


SECTION 9.16.                 USA
Patriot Act Notice.  Each Lender
hereby notifies each 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”) and other applicable foreign Requirements of Law, it
is required to obtain, verify and record information that identifies each
Borrower, which information includes the name and address of each Borrower and
other information that will allow such Lender to identify each Borrower in
accordance with the Act or such other Requirements of Law, as applicable.


 


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


 


	
   

  	
  SPX
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Patrick
  J. O’Leary

  	
   

  
	
   

  	
  Name:
  Patrick J. O’Leary

  
	
   

  	
  Title:
  Executive Vice President & CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A.,

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Marian
  N. Schulman

  	
   

  
	
   

  	
  Name: Marian
  N. Schulman

  
	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  NOVA SCOTIA,

  
	
   

  	
  as
  Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ D.C.
  Maloney

  	
   

  
	
   

  	
  Name: D.C.
  Maloney

  
	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF
  AMERICA, N.A.,

  
	
   

  	
  as a
  Documentation Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ W.
  Thomas Bennett

  	
   

  
	
   

  	
  Name: W.
  Thomas Bennett

  
	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WACHOVIA
  BANK, NATIONAL

  ASSOCIATION, as a Documentation Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Donald
  E. Sellers

  	
   

  
	
   

  	
  Name: Donald
  E. Sellers

  
	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  NOVA SCOTIA,

  
	
   

  	
  as Canadian
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Robert
  Boomhour

  	
   

  
	
   

  	
  Name: Robert
  Boomhour

  
	
   

  	
  Title:
  Director

  



 





















 


	
   

  	
  WACHOVIA
  BANK, NATIONAL

  ASSOCIATION, as a Documentation Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Donald
  E. Sellers

  	
   

  
	
   

  	
  Name: Donald
  E. Sellers

  
	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  NOVA SCOTIA,

  
	
   

  	
  as Canadian
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Robert
  Boomhour

  	
   

  
	
   

  	
  Name: Robert
  Boomhour

  
	
   

  	
  Title:
  Director

  



 


	
   

  	
  DEUTSCHE
  BANK AG,

  
	
   

  	
  as Foreign
  Trade Facility Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jürgen
  Maiwald

  	
   

  
	
   

  	
  Name: Jürgen
  Maiwald

  
	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Christiane Roth

  	
   

  
	
   

  	
  Name:
  Christiane Roth

  
	
   

  	
  Title: Vice
  President

  



 


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