Exhibit 10.3


 




 





CREDIT AGREEMENT


 


Dated as of December 9, 2003


 


among


 


PRECISION CASTPARTS CORP.,


as the Borrower,


 


BANK OF AMERICA, N.A.,


as Administrative Agent, Swing Line Lender
and


L/C Issuer,


 


KEYBANK NATIONAL ASSOCIATION,


MIZUHO CORPORATE BANK, LTD.,


PNC BANK, NATIONAL ASSOCIATION


and


U.S. BANK NATIONAL ASSOCIATION,


as Syndication Agents,


 


THE BANK OF NOVA SCOTIA


and


WACHOVIA BANK, N.A.,


as Documentation Agents,


 


and


 


The Other Lenders Party Hereto


 


BANC OF AMERICA SECURITIES LLC,


as


Sole Lead Arranger and Sole Book Manager




 





 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE I.

  	
  DEFINITIONS AND
  ACCOUNTING TERMS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined
  Terms

  	
   

  
	
  1.02

  	
  Other Interpretive
  Provisions

  	
   

  
	
  1.03

  	
  Accounting
  Terms

  	
   

  
	
  1.04

  	
  Rounding

  	
   

  
	
  1.05

  	
  References to
  Agreements and Laws

  	
   

  
	
  1.06

  	
  Times of
  Day

  	
   

  
	
  1.07

  	
  Letter of Credit Amounts

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  THE COMMITMENTS
  AND CREDIT EXTENSIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Term Loan A

  	
   

  
	
  2.02

  	
  Revolving
  Loans

  	
   

  
	
  2.03

  	
  Borrowings,
  Conversions and Continuations of Revolving Loans; Conversions and
  Continuations of Segments of the Term Loan A

  	
   

  
	
  2.04

  	
  Letters
  of Credit

  	
   

  
	
  2.05

  	
  Swing
  Line Loans

  	
   

  
	
  2.06

  	
  Prepayments

  	
   

  
	
  2.07

  	
  Termination or
  Reduction of Commitments

  	
   

  
	
  2.08

  	
  Repayment
  of Loans

  	
   

  
	
  2.09

  	
  Interest

  	
   

  
	
  2.10

  	
  Fees

  	
   

  
	
  2.11

  	
  Computation of
  Interest and Fees

  	
   

  
	
  2.12

  	
  Evidence of
  Debt

  	
   

  
	
  2.13

  	
  Payments
  Generally

  	
   

  
	
  2.14

  	
  Sharing of Payments

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  TAXES, YIELD
  PROTECTION AND ILLEGALITY

  	
   

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
   

  
	
  3.02

  	
  Illegality

  	
   

  
	
  3.03

  	
  Inability to Determine
  Rates

  	
   

  
	
  3.04

  	
  Increased
  Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans

  	
   

  
	
  3.05

  	
  Funding
  Losses

  	
   

  
	
  3.06

  	
  Matters
  Applicable to all Requests for Compensation

  	
   

  
	
  3.07

  	
  Survival

  	
   

  
	
  3.08

  	
  Replacement Lenders

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  CONDITIONS
  PRECEDENT TO SIGNING AND CREDIT EXTENSIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions of
  Initial Credit Extension

  	
   

  
	
  4.02

  	
  Conditions to all
  Credit Extensions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Existence,
  Qualification and Power; Compliance with Laws

  	
   

  



 


i

















 


	
  5.02

  	
  Authorization;
  No Contravention

  	
   

  
	
  5.03

  	
  Governmental Authorization;
  Other Consents

  	
   

  
	
  5.04

  	
  Binding
  Effect

  	
   

  
	
  5.05

  	
  Financial Statements; No Material
  Adverse Effect

  	
   

  
	
  5.06

  	
  Litigation

  	
   

  
	
  5.07

  	
  No Default

  	
   

  
	
  5.08

  	
  Ownership of Property;
  Liens

  	
   

  
	
  5.09

  	
  Environmental Compliance

  	
   

  
	
  5.10

  	
  Insurance

  	
   

  
	
  5.11

  	
  Taxes

  	
   

  
	
  5.12

  	
  ERISA
  Compliance

  	
   

  
	
  5.13

  	
  Subsidiaries

  	
   

  
	
  5.14

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

  	
   

  
	
  5.15

  	
  Disclosure

  	
   

  
	
  5.16

  	
  Compliance
  with Laws

  	
   

  
	
  5.17

  	
  Tax Shelter Regulations

  	
   

  
	
  5.18

  	
  Intellectual
  Property; Licenses, Etc

  	
   

  
	
  5.19

  	
  Merger Representations

  	
   

  
	
  5.20

  	
  Solvency

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Financial Statements

  	
   

  
	
  6.02

  	
  Certificates; Other
  Information

  	
   

  
	
  6.03

  	
  Notices

  	
   

  
	
  6.04

  	
  Payment of Obligations

  	
   

  
	
  6.05

  	
  Preservation of
  Existence, Etc

  	
   

  
	
  6.06

  	
  Maintenance of Properties

  	
   

  
	
  6.07

  	
  Maintenance of Insurance

  	
   

  
	
  6.08

  	
  Compliance with Laws

  	
   

  
	
  6.09

  	
  Books
  and Records

  	
   

  
	
  6.10

  	
  Inspection
  Rights

  	
   

  
	
  6.11

  	
  Use
  of Proceeds

  	
   

  
	
  6.12

  	
  Performance of
  Contractual Obligations

  	
   

  
	
  6.13

  	
  Additional Guarantors

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Liens

  	
   

  
	
  7.02

  	
  Investments

  	
   

  
	
  7.03

  	
  Indebtedness

  	
   

  
	
  7.04

  	
  Fundamental Changes

  	
   

  
	
  7.05

  	
  Dispositions

  	
   

  
	
  7.06

  	
  Change in Nature of
  Business

  	
   

  



 


ii

















 


	
  7.07

  	
  Transactions with
  Affiliates

  	
   

  
	
  7.08

  	
  Burdensome Agreements

  	
   

  
	
  7.09

  	
  Use of Proceeds

  	
   

  
	
  7.10

  	
  Financial Covenants

  	
   

  
	
  7.11

  	
  Amendments of
  Certain Indebtedness

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Events of Default

  	
   

  
	
  8.02

  	
  Remedies Upon
  Event of Default

  	
   

  
	
  8.03

  	
  Application of Funds

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  ADMINISTRATIVE AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Appointment
  and Authorization of Administrative Agent

  	
   

  
	
  9.02

  	
  Delegation of Duties

  	
   

  
	
  9.03

  	
  Liability of
  Administrative Agent

  	
   

  
	
  9.04

  	
  Reliance by
  Administrative Agent

  	
   

  
	
  9.05

  	
  Notice
  of Default

  	
   

  
	
  9.06

  	
  Credit
  Decision; Disclosure of Information by Administrative Agent

  	
   

  
	
  9.07

  	
  Indemnification of
  Administrative Agent

  	
   

  
	
  9.08

  	
  Administrative
  Agent in its Individual Capacity

  	
   

  
	
  9.09

  	
  Successor Administrative
  Agent

  	
   

  
	
  9.10

  	
  Administrative
  Agent May File Proofs of Claim

  	
   

  
	
  9.11

  	
  Guaranty
  Matters

  	
   

  
	
  9.12

  	
  Other Agents;
  Arrangers and Managers

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Amendments,
  Etc

  	
   

  
	
  10.02

  	
  Notices
  and Other Communications; Facsimile Copies

  	
   

  
	
  10.03

  	
  No Waiver; Cumulative
  Remedies

  	
   

  
	
  10.04

  	
  Attorney Costs,
  Expenses and Taxes

  	
   

  
	
  10.05

  	
  Indemnification by the
  Borrower

  	
   

  
	
  10.06

  	
  Payments
  Set Aside

  	
   

  
	
  10.07

  	
  Successors and Assigns

  	
   

  
	
  10.08

  	
  Confidentiality

  	
   

  
	
  10.09

  	
  Set-off

  	
   

  
	
  10.10

  	
  Interest Rate Limitation

  	
   

  
	
  10.11

  	
  Counterparts

  	
   

  
	
  10.12

  	
  Integration

  	
   

  
	
  10.13

  	
  Survival of
  Representations and Warranties

  	
   

  
	
  10.14

  	
  Severability

  	
   

  
	
  10.15

  	
  Tax Forms

  	
   

  
	
  10.16

  	
  Governing
  Law

  	
   

  
	
  10.17

  	
  Waiver of Right
  to Trial by Jury

  	
   

  



 


iii

















 


	
  10.18

  	
  USA Patriot Act Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01(a)

  	
  Commitments and Pro Rata Shares

  	
   

  
	
  1.01(b)

  	
  Non-Core Subsidiaries

  	
   

  
	
  2.04

  	
  Existing Letters of Credit

  	
   

  
	
  5.05

  	
  Supplement to Interim Financial Statements

  	
   

  
	
  5.06

  	
  Litigation

  	
   

  
	
  5.09

  	
  Environmental Matters

  	
   

  
	
  5.12

  	
  ERISA Compliance

  	
   

  
	
  5.13

  	
  Subsidiaries and Other Equity Investments

  	
   

  
	
  5.18

  	
  Intellectual Property Matters

  	
   

  
	
  7.01

  	
  Existing Liens

  	
   

  
	
  7.02

  	
  Existing Investments

  	
   

  
	
  7.03

  	
  Existing Indebtedness

  	
   

  
	
  7.08

  	
  Existing Burdensome Agreements

  	
   

  
	
  10.02

  	
  Administrative Agent’s Office, Certain Addresses for Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
  Form of

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
  Revolving Loan Notice

  	
   

  
	
  B

  	
  Swing Line Loan Notice

  	
   

  
	
  C

  	
  Term Loan Interest Rate Selection Notice

  	
   

  
	
  D-1

  	
  Term Loan Note

  	
   

  
	
  D-2

  	
  Revolving Loan Note

  	
   

  
	
  D-3

  	
  Swing Line Note

  	
   

  
	
  E

  	
  Compliance Certificate

  	
   

  
	
  F

  	
  Assignment and Assumption

  	
   

  
	
  G

  	
  Guaranty

  	
   

  
	
  H

  	
  Intercreditor Agreement

  	
   

  



 


iv

















 


CREDIT AGREEMENT


 


This CREDIT
AGREEMENT (“Agreement”) is entered into as of
December 9, 2003 among PRECISION CASTPARTS CORP., an Oregon corporation
(the “Borrower”), each lender from time to time party hereto
(collectively, the “Lenders” and individually, a “Lender”), and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.


 


The Borrower has requested that the Lenders
provide a revolving credit facility and a term loan facility, and the Lenders
are willing to do so on the terms and conditions set forth herein.


 


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


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


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


 


“Acquired Company” means SPS
Technologies, Inc., a Pennsylvania corporation.


 


“Acquired Company Note Amendment”
means that certain Amended and Restated Note Purchase Agreement dated as of
December 9, 2003, amending and restating the Note Purchase Agreement with
respect to each series of the Acquired Company Notes.


 


“Acquired Company Notes” means,
collectively or individually as the context may indicate (in each case assuming
the effectiveness of the Acquired Company Note Amendment), each of (a) the
senior unsecured notes of the Acquired Company in the original maximum
principal amount of $85,000,000 issued pursuant to that certain Note Purchase
Agreement dated as of June 17, 1996, the outstanding principal amount of
which on the date hereof is $68,636,362 (b) the senior unsecured notes of the
Acquired Company in the original maximum principal amount of $80,000,000 issued
pursuant to that certain Note Purchase Agreement dated as of August 4,
1999, the outstanding principal amount of which on the date hereof is
$80,000,000, and (c) the senior unsecured notes of the Acquired Company in the
original maximum principal amount of $15,000,000 issued pursuant to that
certain Note Purchase Agreement dated as of February 25, 2000, the
outstanding principal amount of which on the date hereof is $15,000,000.


 


“Acquisition” means any transaction or
series of related transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition of all or substantially all of the assets of
a Person, or of any business or division of a Person, (b) the acquisition of in
excess of 50% of the capital stock, partnership interests, membership interests
or equity of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other combination with
another Person (other than a Person that is a Subsidiary), provided that the
Company or the Subsidiary is the surviving Person.


 

















 


“Adjusted Consolidated EBITDA” means,
for any period of measurement that includes the Closing Date, the sum of
(a) if the period of measurement includes the fiscal quarter of the Acquired
Company ended September 30, 2003, Consolidated EBITDA calculated for the
Acquired Company and its Subsidiaries (rather than for the Borrower and its
Subsidiaries) for the one-, two- or three-quarter period of the Acquired
Company, as applicable, ended September 30, 2003, plus (b) if the
period of measurement includes the fiscal quarter of the Borrower ended closest
to September 30, 2003, Consolidated EBITDA calculated for the Borrower and
its Subsidiaries without giving effect to the Merger (rather than for the
Borrower and its Subsidiaries giving effect to the Merger) for the one-, two-
or three-quarter period of the Borrower, as applicable, ended closest to
September 30, 2003, plus (c) with respect to the fiscal quarter of
the Borrower ending closest to December 31, 2003, the sum of (x)
Consolidated EBITDA calculated for the Borrower and its Subsidiaries other than
the Acquired Company and its Subsidiaries notwithstanding the Merger for such
fiscal quarter, plus (y) Consolidated EBITDA calculated for the Acquired
Company and its Subsidiaries for the period from the Closing Date to the last
day of such fiscal quarter times the number of days in such fiscal quarter, all
divided by the number of days from the Closing Date to the last day of such
fiscal quarter, plus (d) Consolidated EBITDA of the Borrower and its
Subsidiaries (giving effect to the Merger) for each fiscal quarter after the
fiscal quarter of the Borrower ending closest to December 31, 2003
included in such period.


 


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


 


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


 


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


 


“Affiliate” means, with respect to any
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.  “Control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.


 


“Agent-Related Persons” means the
Administrative Agent, together with its Affiliates (including, in the case of
Bank of America in its capacity as the Administrative Agent, the Arranger), and
the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.


 


“Aggregate Commitments” means, as at
the date of determination thereof, the sum of (a) the Aggregate Revolving
Credit Commitments at such date plus (b) the Outstanding Amount with respect to
the Term Loan A at such date.


 


2

















 


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


 


“Agreement” means this Credit
Agreement.


 


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


 


	
  Pricing

  Level

  	
   

  	
  Debt Rating

  S&P/Moody’s

  	
   

  	
  Commitment

  Fee

  	
   

  	
  Eurodollar Rate

  Loans and

  Letters of Credit

  	
   

  	
  Base

  Rate Loans

  	
   

  
	
  1

  	
   

  	
  BBB or better and Baa2 or
  better

  	
   

  	
  0.250

  	
  %

  	
  1.000

  	
  %

  	
  0.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2

  	
   

  	
  BBB- and Baa3

  	
   

  	
  0.250

  	
  %

  	
  1.250

  	
  %

  	
  0.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3

  	
   

  	
  BBB- and Ba1 or BB+ and
  Baa3

  	
   

  	
  0.300

  	
  %

  	
  1.500

  	
  %

  	
  0.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4

  	
   

  	
  BB+ and Ba1

  	
   

  	
  0.375

  	
  %

  	
  1.750

  	
  %

  	
  0.750

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5

  	
   

  	
  BB and Ba2

  	
   

  	
  0.500

  	
  %

  	
  2.000

  	
  %

  	
  1.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6

  	
   

  	
  Lower than BB and Ba2 or
  unrated by either S&P or Moody’s

  	
   

  	
  0.500

  	
  %

  	
  2.500

  	
  %

  	
  1.500

  	
  %

  



 


“Debt Rating” means, as of any date of
determination, the rating as determined by either S&P or Moody’s
(collectively, the “Debt Ratings”) of the Borrower’s non-credit-enhanced,
senior unsecured long-term debt; provided that if there is a split in Debt
Ratings not provided for above, then the lower of such Debt Ratings shall apply
(with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating
for Pricing Level 6 being the lowest), unless there is a split in Debt Ratings
of more than one level, in which case the Pricing Level that is one level
higher than the Pricing Level of the lower Debt Rating shall apply.


 


Initially, the Applicable Rate shall be determined based upon the Debt
Rating specified in the certificate delivered pursuant to Section 4.01(a)(vii)(C).  Thereafter, each change in the Applicable
Rate resulting from a publicly announced change in the Debt Rating shall be
effective, in the case of an upgrade, during the period commencing on the date
of delivery by the Borrower to the Administrative Agent of notice thereof
pursuant to Section 6.03(e) and ending on the date immediately
preceding the effective date of the next such change and, in the case of a
downgrade, during the period commencing on the date of the public announcement
thereof and ending on the date immediately preceding the effective date of the
next such change.


 


“Approved Fund” has the meaning
specified in Section 10.07(g).


 


“Arranger” means Banc of America
Securities LLC, in its capacity as sole lead arranger and sole book manager.


 


“Assignment and Assumption” means an
Assignment and Assumption substantially in the form of Exhibit F.


 


3

















 


“Attorney Costs” means and includes
all fees, expenses and disbursements of any law firm or other external counsel
and, without duplication, the allocated cost of internal legal services and all
expenses and disbursements of internal counsel.


 


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


 


“Audited Acquired Company Financial
Statements” means the audited consolidated balance sheet of the Acquired
Company and its Subsidiaries for the fiscal year ended December 31, 2002,
and the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal year of the Acquired Company and its
Subsidiaries, including the notes thereto.


 


“Audited Financial Statements” means
the audited consolidated balance sheet of the Borrower and its Subsidiaries for
the fiscal year ended March 30, 2003, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for
such fiscal year of the Borrower and its Subsidiaries, including the notes
thereto.


 


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


 


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


 


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


 


“Base Rate Loan” means a Loan
(including a Segment) that bears interest based on the Base Rate.


 


“Base Rate Revolving Loan” means a
Revolving Loan that is a Base Rate Loan.


 


“Base Rate Segment” means a Segment
bearing interest or to bear interest at the Base Rate.


 


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


 


4

















 


“Borrowing” means any of (i) the
borrowing under the Term Loan A Facility, (ii) a Revolving Borrowing or (iii) a
Swing Line Borrowing, as the context may require.


 


“Business Day” means any day other
than a Saturday, Sunday or other day on which commercial banks are authorized
to close under the Laws of, or are in fact closed in, the state where the
Administrative Agent’s Office is located and, if such day relates to any
Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits
are conducted by and between banks in the London interbank eurodollar market.


 


“Cash Collateralize” has the meaning
specified in Section 2.04(g).


 


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


 


(a)                                  any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan) becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such person or group has the
right to acquire (such right, an “option right”), whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of 25% or more of the equity securities of such Person entitled to
vote for members of the board of directors or equivalent governing body of such
Person on a fully-diluted basis (and taking into account all such securities
that such person or group has the right to acquire pursuant to any option
right); or


 


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


 


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


 


5

















 


“Closing Date EBITDA” means the sum of
(a) Consolidated EBITDA calculated for the Acquired Company and its
Subsidiaries (rather than for the Borrower and its Subsidiaries) for the four
fiscal quarters of the Acquired Company ended September 30, 2003, plus
(b) Consolidated EBITDA calculated for the Borrower and its Subsidiaries
without giving effect to the Merger (rather than for the Borrower and its
Subsidiaries giving effect to the Merger) for the four fiscal quarters of the
Borrower ended closest to September 30, 2003.


 


“Closing Date Material Adverse Effect”
means the occurrence of any event since (1) March 30, 2003 that has had or
would reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the assets, properties, business, results of
operations or financial condition of the Borrower and its Subsidiaries (without
giving effect to the Merger), taken as a whole, or (2) June 30, 2003 that
has had or would reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the assets, properties, business,
results of operations or financial condition of the Acquired Company and its
Subsidiaries (without giving effect to the Merger); provided, however,
that any event that (x) results from the announcement or pendency of the
Merger, including disruptions to the Borrower’s or the Acquired Company’s
business or the businesses of the Borrower’s Subsidiaries (without giving
effect to the Merger) or the Acquired Company’s Subsidiaries (without giving
effect to the Merger), and their respective employees, customers and suppliers
or (y) generally affects the respective industries in which Borrower and its
Subsidiaries (without giving effect to the Merger) or the Acquired Company and
its Subsidiaries (without giving effect to the Merger) operate and does not
affect either the Borrower and its Subsidiaries (without giving effect to the
Merger) or the Acquired Company and its Subsidiaries (without giving effect to
the Merger), respectively, in a materially disproportionate manner, shall,
solely for purposes of this definition, be excluded in determining whether such
an event described in this definition has occurred.


 


“Code” means the Internal Revenue Code
of 1986.


 


“Commitment Fee” has the meaning
specified in Section 2.10(a).


 


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


 


“Consolidated EBITDA” means, for any
period, for the Borrower and its Subsidiaries on a consolidated basis, an
amount equal to Consolidated Net Income for such period plus (a) the following
to the extent deducted in calculating such Consolidated Net Income: (i)
Consolidated Interest Charges for such period, (ii) the provision for federal,
state, local and foreign income taxes payable by the Borrower and its
Subsidiaries for such period, (iii) the amount of depreciation and amortization
expense deducted in determining such Consolidated Net Income, (iv) non-cash
charges resulting from the application of Statement of Financial Accounting Standards
No. 142, and (v) other expenses of the Borrower and its Subsidiaries reducing
such Consolidated Net Income which do not represent a cash item in such period
or any future period and minus (b) all non-cash items increasing Consolidated
Net Income for such period and plus (c) cash received with respect to a
non-cash item deducted under clause (b) of this definition for a prior period.


 


“Consolidated Forward Interest Charges”
means, for any Ensuing Twelve Month Period beginning on the date of measurement
thereof, for the Borrower and its Subsidiaries on a


 


6

















 


consolidated basis, the sum of
all of the following, computed at the applicable fixed rate in connection with
fixed rate items and at the variable rate then prevailing on the date of
measurement with respect to variable rate items, in each case adjusted to give
effect to scheduled repayments of principal during such Ensuing Twelve Month
Period: (a) interest, premium payments, debt discount, fees, charges and
related expenses (including capitalized interest) of the Borrower and its
Subsidiaries in connection with borrowed money (including amounts attributable
to interest expense under any Permitted Receivables Purchase Facility, and
including commissions, discounts, fees and other charges in connection with
letters of credit and similar instruments) or in connection with the deferred
purchase price of assets, in each case to the extent treated as interest in
accordance with GAAP, and (b) the portion of rent expense of the Borrower and
its Subsidiaries with respect to such period under capital leases that is
treated as interest in accordance with GAAP.


 


“Consolidated Funded Indebtedness”
means, as of any date of determination, for the Borrower and its Subsidiaries
on a consolidated basis and without duplication, the sum of (a) the outstanding
principal amount of all obligations, whether current or long-term, for borrowed
money (including Obligations hereunder) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments, (b) all
purchase money Indebtedness, (c) all obligations (including reimbursement
obligations) arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments (but excluding contingent reimbursement or payment obligations in
connection with performance, but not financial, letters of credit), (d) all
obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business), (e)
Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations, (f) the outstanding amount under any Permitted Receivables
Purchase Facility, (g) without duplication, all Guarantees with respect to
outstanding Indebtedness of the types specified in clauses (a) through (f)
above of Persons other than the Borrower or any Subsidiary, and (g) all
Indebtedness of the types referred to in clauses (a) through (g) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation, a limited partnership in which none of the Borrower or any of its
Subsidiaries is a general partner or limited liability company) in which the
Borrower or a Subsidiary is a general partner or joint venturer, unless such
Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.


 


“Consolidated Interest Charges” means,
for any period, for the Borrower and its Subsidiaries on a consolidated basis,
the sum of (a) all interest, premium payments, debt discount, fees, charges and
related expenses (including capitalized interest) of the Borrower and its
Subsidiaries in connection with borrowed money (including amounts attributable
to interest expense under any Permitted Receivables Purchase Facility, and
including commissions, discounts fees and other charges in connection with
letters of credit and similar instruments) or in connection with the deferred
purchase price of assets, in each case to the extent treated as interest in
accordance with GAAP, and (b) the portion of rent expense of the Borrower and
its Subsidiaries with respect to such period under capital leases that is
treated as interest in accordance with GAAP.


 


“Consolidated Interest Coverage Ratio”
means, with respect to the Borrower and its Subsidiaries for any date of
computation thereof, the ratio of (a) Consolidated EBITDA for the


 


7

















 


Four-Quarter Period ending on
or ended most recently prior to the date of computation thereof minus
capital expenditures for such Four-Quarter Period to (b) Consolidated Forward
Interest Charges for the Ensuing Twelve Month Period; provided that in
measuring the Consolidated Interest Coverage Ratio (i) on the Closing Date,
Closing Date EBITDA will be used in lieu of Consolidated EBITDA, and (ii) on
any other date during a Four-Quarter Period that includes the Closing Date,
Adjusted Consolidated EBITDA will be used in lieu of Consolidated EBITDA.


 


“Consolidated Leverage Ratio” means,
with respect to the Borrower and its Subsidiaries for any date of computation
thereof, the ratio of (a) Consolidated Funded Indebtedness as of such date of
computation to (b) Consolidated EBITDA for the Four-Quarter Period ending on or
ended most recently prior to the date of computation thereof; provided
that in measuring the Consolidated Leverage Ratio (i) on the Closing Date,
Closing Date EBITDA will be used in lieu of Consolidated EBITDA, and (ii) on
any other date measuring Consolidated EBITDA for a Four-Quarter Period that
includes the Closing Date, Adjusted Consolidated EBITDA will be used in lieu of
Consolidated EBITDA.


 


“Consolidated Net Income” means, for
any period, for the Borrower and its Subsidiaries on a consolidated basis, the
net income of the Borrower and its Subsidiaries (excluding extraordinary gains
and extraordinary losses) for that period.


 


“Consolidated Net Worth” means, as of
any date of determination, for the Borrower and its Subsidiaries on a consolidated
basis, Stockholders’ Equity of the Borrower and its Subsidiaries on that date.


 


“Consolidated Total Assets” means, as
of any date on which the amount thereof is to be determined, the net book value
of all assets of the Borrower and its Subsidiaries as determined on a
consolidated basis.


 


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


 


“Control” has the meaning specified in
the definition of “Affiliate.”


 


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


 


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


 


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


 


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


 


8

















 


“Default Rate” means an interest rate
equal to (a) the Base Rate plus (b) the Applicable Rate, if any,
applicable to Base Rate Loans plus (c) 2% per annum; provided, however,
that with respect to a Eurodollar Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2% per annum, in each case to the
fullest extent permitted by applicable Laws.


 


“Defaulting Lender” means any Lender
that (a) has failed to fund any portion of the Revolving Loans, the Term Loan
A,  participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.


 


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


 


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


 


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


 


“Eligible Assignee” has the meaning
specified in Section 10.07(g).


 


“Ensuing Twelve Month Period” means,
with respect to the calculation of Consolidated Forward Interest Charges, the
period beginning on the date of measurement thereof and ending 365 or 366 days
thereafter, as applicable.


 


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


 


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


 


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


 


9

















 


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


 


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


 


“Eurodollar Rate” means for any
Interest Period with respect to any Eurodollar Rate Loan:


 


(a)                                  the rate per annum
equal to the rate determined by the Administrative Agent to be the offered rate
that appears on the page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest Settlement Rate for deposits
in Dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
or


 


(b)                                 if the rate referenced
in the preceding clause (a) does not appear on such page or service or such
page or service shall not be available, the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate on such other
page or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or


 


(c)                                  if the rates
referenced in the preceding clauses (a) and (b) are not available, the rate per
annum determined by the Administrative Agent as the rate of interest at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America’s London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 4:00 p.m. (London time) two Business Days prior to the first day
of such Interest Period.


 


10

















 


“Eurodollar Rate Loan” means a Loan
(including a Segment) that bears interest at a rate based on the Eurodollar
Rate.


 


“Eurodollar Rate Segment” means a
Segment bearing interest or to bear interest at the Eurodollar Rate.


 


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


 


“Excluded SPS Subsidiaries” means each
of AAA Aircraft Supply, LLC and Avibank Services, LLC.


 


“Existing Acquired Company Credit
Agreement” means that certain Credit Agreement dated as of June 18,
2002 among the Acquired Company, PNC Bank, as administrative agent, and a
syndicate of lenders.


 


“Existing Borrower Credit Agreement”
means that certain Credit Agreement dated as of July 30, 1999 among the
Borrower, Bank of America, as administrative agent, and a syndicate of lenders.


 


“Existing Letters of Credit” means
each letter of credit identified on Schedule 2.04.


 


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


 


“Fee Letter” means the letter
agreement, dated August 14, 2003, among the Borrower, the Administrative
Agent and the Arranger with respect to the credit facilities contemplated by
this Agreement.


 


“Foreign Lender” has the meaning
specified in Section 10.15(a)(i).


 


“Four-Quarter Period” means a period
of four full consecutive fiscal quarters of the Borrower and its Subsidiaries,
taken together as one accounting period.


 


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


 


“GAAP” means generally accepted
accounting principles in the United States set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by a
significant segment of the


 


11

















 


accounting profession in the
United States, that are applicable to the circumstances as of the date of
determination, consistently applied.


 


“Governmental Authority” means any
nation or government, any state or other political subdivision thereof, any
agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.


 


“Granting Lender” has the meaning
specified in Section 10.07(h).


 


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


 


“Guarantors” means, collectively or
individually as the context may indicate, each of the Material Subsidiaries of
the Borrower at the Closing Date (after giving effect to the Merger) and each
other Person who becomes a party to the Guaranty (including by execution of a
Guaranty Joinder Agreement).


 


“Guaranty” means that certain Guaranty
Agreement dated as of the Closing Date among the initial Guarantors and the
Administrative Agent, substantially in the form of Exhibit G, as
supplemented from time to time by the execution and delivery of Guaranty
Joinder Agreements pursuant to Section 6.13 or otherwise.


 


“Guaranty Joinder Agreement” means
each Guaranty Joinder Agreement, substantially in the form thereof attached to
the Guaranty, executed and delivered by a Guarantor to the Administrative Agent
pursuant to Section 6.13 or otherwise.


 


12

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(f)                                      the
aggregate amount outstanding under all Permitted Receivables Purchase
Facilities;


 


(g)                                   capital
leases and Synthetic Lease Obligations; and


 


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


 


For all purposes hereof, the Indebtedness of
any Person shall include the Indebtedness of any partnership or joint venture
(other than a joint venture that is itself a corporation, a limited partnership
in which none of the Borrower or any of its Subsidiaries is a general partner
or limited liability company) in which such Person is a general partner or a
joint venturer, unless such Indebtedness is expressly made non-recourse to such
Person.  The amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. 
The amount of any capital lease or Synthetic Lease Obligation as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.


 


“Indemnified Liabilities” has the
meaning set forth in Section 10.05.


 


“Indemnitees” has the meaning set
forth in Section 10.05.


 


13

















 


“Intercreditor Agreement” means that
certain Intercreditor Agreement dated as of the Closing Date among the
Borrower, the Administrative Agent and each holder of any of the Acquired
Company Notes, substantially in the form of Exhibit H.


 


“Interest Payment Date” means, (a) as
to any Loan other than a Base Rate Loan, the last day of each Interest Period
applicable to such Loan and the Revolving Credit Maturity Date or the Term Loan
A Maturity Date, as applicable; provided, however, that if any
Interest Period for a Eurodollar Rate Loan exceeds three months, the respective
dates that fall every three months after the beginning of such Interest Period
shall also be Interest Payment Dates; and (b) as to any Base Rate Loan
(including a Swing Line Loan), the last Business Day of each calendar quarter
of the Borrower and the Revolving Credit Maturity Date or the Term Loan A
Maturity Date, as applicable; provided further that interest accruing at
the Default Rate shall be payable from time to time upon demand of the
Administrative Agent.


 


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


 


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


 


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


 


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


 


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


 


“IP Rights” has the meaning set forth
in Section 5.18.


 


“IRS” means the United States Internal
Revenue Service.


 


“Laws” means, collectively, all international,
foreign, federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial precedents or
authorities, including the interpretation or administration thereof by any


 


14

















 


Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.


 


“L/C Advance” means, with respect to
each Revolving Lender, such Revolving Lender’s funding of its participation in
any L/C Borrowing in accordance with its Pro Rata Revolving Share.


 


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


 


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


 


“L/C Issuer” means Bank of America in
its capacity as issuer of Letters of Credit hereunder, or any successor issuer
of Letters of Credit hereunder.


 


“L/C Obligations” means, as at any
date of determination, the aggregate undrawn amount of all outstanding Letters
of Credit plus the aggregate of all Unreimbursed Amounts, including all
L/C Borrowings.


 


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


 


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


 


“Letter of Credit” means any standby
letter of credit issued hereunder and shall include the Existing Letters of
Credit.


 


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


 


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


 


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


 


“Lien” means any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge, or preference, priority or other security interest or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, and any financing lease
having substantially the same economic effect as any of the foregoing), but not
including the interest of a lessor under an operating lease.


 


15

















 


“Loan” means an extension of credit by
a Lender to the Borrower under Article II in the form of a
Revolving Loan, a Term Loan A or a Swing Line Loan, including any Segment.


 


“Loan Documents” means this Agreement,
each Note, the Guaranty (including the Guaranty Joinder Agreements), the
Intercreditor Agreement, the Fee Letter, each Revolving Loan Notice, each Term
Loan Interest Rate Selection Notice, each Letter of Credit Application and each
Compliance Certificate, and all other instruments and documents heretofore or
hereafter executed or delivered to or in favor of any Lender or the
Administrative Agent in connection with the Loans made and transactions contemplated
by this Agreement.


 


“Loan Parties” means, collectively,
the Borrower and each Guarantor.


 


“Material Adverse Effect” means (a) a
material adverse change in, or a material adverse effect upon, the operations,
business, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole; (b) a material impairment of the ability of
any Loan Party to perform its obligations under any Loan Document to which it
is a party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to
which it is a party.


 


“Material Senior Indebtedness” means,
collectively or individually as the context may indicate, Indebtedness of the
Borrower or any of its Subsidiaries incurred or outstanding under any of the
Public Notes, any of the Acquired Company Notes or any Permitted Receivables
Purchase Facility, and any extension, refinancing or renewal thereof.


 


“Material Subsidiary” means  each Domestic Subsidiary of the Borrower
except (a) the Non-Core Subsidiaries, (b) the Permitted Receivables
Subsidiaries, (c) the Excluded SPS Subsidiaries, (d) Frisa Wyman-Gordon, LLC, a
Delaware limited liability company, (e) the Special Purpose Finance
Subsidiaries and (f) any other Subsidiary of the Borrower the book value of
whose total assets is less than $10,000,000, provided that the aggregate
amount of total assets of all subsidiaries within this subclause (f) may not
exceed $100,000,000 (and if so exceeding, the Borrower will identify
Subsidiaries to be Material Subsidiaries and Guarantors sufficient so that,
after so identifying, this proviso is satisfied).


 


“Merger” means the merger of the
Acquired Company with and into the Purchaser, as contemplated by the Merger
Agreement.


 


“Merger Agreement” means that certain
Agreement and Plan of Merger, dated as of August 16, 2003, by and among
the Borrower, the Purchaser and the Acquired Company, including all schedules,
exhibits and similar addenda thereto.


 


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


 


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


 


16

















 


“New
Public Notes” means the 5.60% senior unsecured notes of the Borrower
due 2013 in an original principal amount not to exceed $300,000,000  issued December 2, 2003 pursuant to
the Public Indenture and that certain Second Supplemental Indenture dated as of
December 9, 2003.


 


“Non-Core Subsidiaries” means,
individually or collectively as the context may indicate, the Subsidiaries
listed on Schedule 1.01(b) and each of which comprise either the
Borrower’s flow products business or the Acquired Company’s magnetic products
business, as each is constituted on the Closing Date, without any merger into,
consolidation with, Acquisition by or material transfer of assets to any of
such Subsidiaries after the Closing Date (other than any of such transactions
between or among such Non-Core Subsidiaries).


 


“Notes” means, collectively, the
Revolving Loan Notes, the Term Loan A Notes and the Swing Line Note.


 


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


 


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


 


“Outstanding Amount” means (i) with
respect to any Term Loan A on any date, the aggregate outstanding principal
amount thereof after giving effect to the Borrowing of such Term Loan A and any
prepayments or repayments of such Term Loan A (or any Segment) occurring on
such date, (ii) with respect to Revolving Loans and Swing Line Loans on any
date, the aggregate outstanding principal amount thereof after giving effect to
any Borrowings and prepayments or repayments of Revolving Loans and Swing Line
Loans, as the case may be, occurring on such date; and (ii) with respect to any
L/C Obligations on any date, the amount of such L/C Obligations on such date
after giving effect to any L/C Credit Extension occurring on such date and any
other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid drawings
under any Letters of Credit or any reductions in the maximum amount available
for drawing under Letters of Credit taking effect on such date.


 


17

















 


“Participant” has the meaning
specified in Section 10.07(d).


 


“PBGC” means the Pension Benefit
Guaranty Corporation.


 


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


 


“Permitted Business” means any
business in which (a) the Borrower and its Subsidiaries, or (b) the Acquired
Company and its Subsidiaries were engaged on the Closing Date, and any business
reasonably related or complementary thereto.


 


“Permitted Receivables” shall mean all
obligations of any obligor (whether now existing or hereafter arising) under a
contract for sale of goods or services by the Borrower or any of its
Subsidiaries, which shall include any obligation of such obligor (whether now
existing or hereafter arising) to pay interest, finance charges or amounts with
respect thereto, and, with respect to any of the foregoing receivables or
obligations, (a) all of the interest of the Borrower or any of its Subsidiaries
in the goods (including returned goods) the sale of which gave rise to such
receivable or obligation after the passage of title thereto to any obligor, (b)
all other Liens and property subject thereto from time to time purporting to
secure payment of such receivables or obligations, and (c) all guarantees,
insurance, letters of credit and other agreements or arrangements of whatever
character from time to time supporting or securing payment of any such
receivables or obligations.


 


“Permitted Receivables Purchase Facility”
means (a) the facility established under the Amended and Restated Credit and
Security Agreement entered into as of January 31, 2001 by and among
Precision Receivables Corp., the Borrower, Blue Ridge Asset Funding Corporation
and Wachovia Bank, N.A., and the documents related thereto or contemplated
thereby, and (b) any agreement of the Borrower or any of its Permitted
Receivables Subsidiaries providing for sales, transfers or conveyances of
Permitted Receivables purporting to be sales (and considered sales under GAAP)
that do not provide, directly or indirectly, for recourse against the seller of
Permitted Receivables (or against any of such seller’s Affiliates) by way of a
guaranty or any other support arrangement with respect to the amount of such
Permitted Receivables (based on the financial condition or circumstances of the
obligor thereunder), other than such limited recourse as is reasonable given
market standards for transactions of a similar type, taking into account such
factors as historical bad debt loss experience and obligor concentration
levels.


 


“Permitted Receivables Subsidiary”
means, individually or collectively as the context may indicate, each of
Precision Receivables Corp., an Oregon corporation, and any other similar
Subsidiary of the Borrower formed primarily for the purpose of being a borrower
under a Permitted Receivables Purchase Facility.


 


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


 


18

















 


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


 


“Post-Closing Agreement” has the
meaning set forth in Section 4.01(a).


 


“Pro Rata Revolving Share” means, with
respect to each Revolving Lender at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Revolving Credit Commitment of such Revolving Lender at such
time and the denominator of which is the amount of the Aggregate Revolving
Credit Commitments at such time; provided that if the commitment of each
Revolving Lender to make Revolving Loans and the obligation of the L/C Issuer
to make L/C Credit Extensions have been terminated pursuant to Section 8.02
or otherwise, then the Pro Rata Revolving Share of each Revolving Lender shall
be determined based on the Pro Rata Revolving Share of such Revolving Lender
immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to the terms hereof. 
The initial Pro Rata Revolving Share of each Revolving Lender is set
forth opposite the name of such Revolving Lender on Schedule 1.01(a)
or in the Assignment and Assumption pursuant to which such Revolving Lender
becomes a party hereto, as applicable.


 


“Pro Rata Term A Share” means, with
respect to each Term Loan A Lender, the percentage (carried out to the ninth
decimal place) of the principal amount of the Term Loan A funded by such Term
Loan A Lender as of the date of measurement thereof, after giving effect to any
assignments made pursuant to Section 10.07 on or prior to such date
of measurement.  The Pro Rata Term A
Share of each Term Loan A Lender as of the Closing Date is set forth opposite
the name of such Term Loan A Lender on Schedule 1.01(a) or in the
Assignment and Assumption pursuant to which such Term Loan A Lender becomes a
party hereto, as applicable.


 


“Public Indenture” means that certain
Indenture dated as of December 17, 1997, between the Borrower and Bank One
Trust Company, N.A. (as successor to The First National Bank of Chicago),
pursuant to which the Public Notes have been issued.


 


“Public Notes” means, collectively or
individually as the context may indicate, each of (a) the 6.75% senior
unsecured notes of the Borrower due 2007 in the original maximum principal
amount of $150,000,000, all of which is outstanding on the date hereof, (b) the
8.75% senior unsecured notes of the Borrower due 2005 in the original maximum
principal amount of $200,000,000, all of which is outstanding on the date
hereof, and (c) the New Public Notes, all of which were issued pursuant to the
Public Indenture.


 


“Purchaser” means Star Acquisition,
LLC, a Pennsylvania limited liability company and a wholly-owned Domestic
Subsidiary of the Borrower.


 


“Register” has the meaning set forth
in Section 10.07(c).


 


“Related Swap Contract” means all Swap
Contracts which are entered into or maintained by the Borrower or any
Subsidiary with a Lender or Affiliate of a Lender and which are not prohibited
by the express terms of the Loan Documents.


 


19

















 


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


 


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


 


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


 


“Required Revolving Lenders” means, as
of any date of determination, Revolving Lenders with Revolving Credit
Commitments that total more than 50% of the Aggregate Revolving Credit
Commitments or, at any time after the Aggregate Revolving Credit Commitments
have been terminated, Revolving Lenders holding in the aggregate more than 50%
of the Outstanding Amount of the Revolving Loans (with the aggregate amount of
each Revolving Lender’s risk participations and funded participations in L/C
Obligations and Swing Line Loans being deemed “held” by such Revolving Lender
for purposes of this definition); provided that the portion of the
Aggregate Revolving Credit Commitments of, and the portion of the Outstanding
Amount of the Revolving Loans held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Revolving
Lenders.


 


“Required Term Loan A Lenders” means,
as of any date of determination, Term Loan A Lenders having more than 50% of
the Outstanding Amount of the Term Loan A; provided that the portion of
the Outstanding Amount of the Term Loan A held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Term Loan A Lenders.


 


“Responsible Officer” means the chief
executive officer, president, chief financial officer, treasurer or assistant
treasurer of a Loan Party.  Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.


 


“Restricted Payment” means any
dividend or other distribution (whether in cash, securities or other property)
with respect to any capital stock or other equity interest of the 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 such
capital stock or other equity


 


20

















 


interest or of any option,
warrant or other right to acquire any such capital stock or other equity
interest.


 


“Revolving Borrowing” means a
borrowing consisting of simultaneous Revolving Loans of the same Type and, in
the case of Eurodollar Rate Loans, having the same Interest Period made by each
of the Revolving Lenders pursuant to Section 2.02.


 


“Revolving Credit Commitment” means,
as to each Revolving Lender, its obligation to (a) make Revolving Loans to the
Borrower pursuant to Section 2.02, (b) purchase participations in
L/C Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Revolving Lender’s name on Schedule 1.01(a)
or in the Assignment and Assumption pursuant to which such Revolving Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time
to time in accordance with this Agreement.


 


“Revolving Credit Facility” means the
facility described in Section 2.02 providing for Revolving Loans to
the Borrower by the Revolving Lenders in the maximum aggregate principal amount
at any time outstanding of $400,000,000, as reduced from time to time pursuant
to the terms of this Agreement.


 


“Revolving Credit Maturity Date” means
(a) the Stated Maturity Date, or (b) such earlier date upon which the Aggregate
Revolving Credit Commitments may be terminated in accordance with the terms
hereof.


 


“Revolving Lender” means each Lender
that has a Revolving Credit Commitment or, following termination of the
Revolving Credit Commitments, has Revolving Loans outstanding or participations
in an outstanding Letter of Credit or Swing Line Loan.


 


“Revolving Loan” means a Base Rate
Loan or a Eurodollar Rate Loan made to the Borrower by a Revolving Lender in
accordance with its Pro Rata Revolving Share pursuant to Section 2.02,
except as otherwise provided herein.


 


“Revolving Loan Note” means a promissory
note made by the Borrower in favor of a Revolving Lender evidencing Revolving
Loans made by such Revolving Lender, substantially in the form of Exhibit
D-2.


 


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


 


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


 


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


 


“Segment” means a portion of any Term
Loan A (or all thereof) with respect to which a particular interest rate is (or
is proposed to be) applicable.


 


21

















 


“Solvent” means, when used with
respect to any Person, that at the time of determination:


 


(a)                                  the
fair value of its assets (both at fair valuation and at present fair saleable
value on an orderly basis) is in excess of the total amount of its liabilities,
including contingent obligations; and


 


(b)                                 it
is then able and expects to be able to pay its debts as they mature; and


 


(c)                                  it
has capital sufficient to carry on its business as conducted and as proposed to
be conducted.


 


“SPC” has the meaning specified in Section 10.07(h).


 


“Special Purpose Finance Subsidiary”
means, individually or collectively as the context may indicate, any Subsidiary
of the Borrower created solely for the purpose of, and whose sole activity
shall consist of, acquiring and financing capital assets of the Borrower and
its Subsidiaries; provided that the aggregate net book value of all
assets of all such Special Purpose Finance Subsidiaries shall not at any time
exceed $50,000,000.


 


“Stated Maturity Date” means
December 9, 2008.


 


“Stockholders’ Equity” means, as of
any date of determination for the Borrower and its Subsidiaries on a
consolidated basis, stockholders’ equity as of that date determined in
accordance with GAAP.


 


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


 


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


 


22

















 


a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.


 


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


 


“Swing Line” means the revolving
credit facility made available by the Swing Line Lender pursuant to Section 2.05.


 


“Swing Line Borrowing” means a
borrowing of a Swing Line Loan pursuant to Section 2.05.


 


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


 


“Swing Line Loan” has the meaning
specified in Section 2.05(a).


 


“Swing Line Loan Notice” means a
notice of a Swing Line Borrowing pursuant to Section 2.05(b),
which, if in writing, shall be substantially in the form of Exhibit B.


 


“Swing Line Note” means a promissory
note made by the Borrower in favor of the Swing Line Lender evidencing Swing
Line Loans made by the Swing Line Lender, substantially in the form of Exhibit
D-3.


 


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


 


“Synthetic Lease Obligation” means the
monetary obligation of a Person under (a) a so-called synthetic, off-balance
sheet or tax retention lease, or (b) an agreement for the use or possession of
property creating obligations that do not appear on the balance sheet of such
Person but which, upon the insolvency or bankruptcy of such Person, would be
characterized as the indebtedness of such Person (without regard to accounting
treatment).


 


“Tax Opinion Adjustment Event” means
any of the following: (A) any waiver or modification of the Tax Opinion
Condition as reflected in the Merger Agreement as executed on August 16,
2003; (B) any adjustment to the Merger Consideration (as defined in the Merger
Agreement as in effect on August 16, 2003) after the execution of the
Merger Agreement on August 16, 2003, including without limitation any
change in amount or method of determining the per share Cash Consideration or
Stock Consideration (each as defined in the Merger Agreement as in effect on
August 16, 2003); and (C) without limiting the foregoing, the exercise


 


23

















 


of any rights of the Borrower
to make any Stock Adjustment (as defined in the Merger Agreement as in effect
on August 16, 2003).


 


“Tax Opinion Condition” means the
condition in Section 5.2(e) of the Merger Agreement that the tax opinion
specified in the Merger Agreement be issued in connection with the consummation
of the Merger.


 


“Term Loan A” means the Loan made
pursuant to the Term Loan A Facility, as described in Section 2.01.


 


“Term Loan A Facility” means the
facility described in Section 2.01 consisting of the Term Loan A
advanced to the Borrower on the Closing Date in an original principal amount of
$300,000,000.


 


“Term Loan A Lender” means each Lender
that has a portion of the Term Loan A outstanding under the Term Loan A
Facility.


 


“Term Loan A Maturity Date” means (a)
the Stated Maturity Date, or (b) such earlier date upon which the Outstanding
Amounts under the Term Loan A, including all accrued and unpaid interest, are
either due and payable or are otherwise paid in full in accordance with the
terms hereof.


 


“Term Loan A Note” means a promissory
note made by the Borrower in favor of a Term Loan A Lender evidencing the
portion of the Term Loan A made by such Term Loan A Lender, substantially in
the form of Exhibit D-1.


 


“Term Loan Interest Rate Selection Notice”
means the written notice delivered by a Responsible Officer of the Borrower in
connection with the election of a subsequent Interest Period for any Eurodollar
Rate Segment or the conversion of any Eurodollar Rate Segment into a Base Rate
Segment or the conversion of any Base Rate Segment into a Eurodollar Rate
Segment, which, if in writing, shall be substantially in the form of Exhibit
C.


 


“Threshold Amount” means $50,000,000.


 


“Total Outstandings” means the
aggregate Outstanding Amount of (a) the Term Loan A, (b) Revolving Loans, (c)
L/C Obligations and (d) Swing Line Loans.


 


“Transaction Documents” means,
individually or collectively as the context may indicate, (i) the Merger
Agreement, and (ii) the side letter dated as of August 16, 2003 by and
among the Borrower, the Purchaser and the Acquired Company.


 


“Type” means with respect to (i) a
Revolving Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan,
and (ii) a Segment, its character as a Base Rate Segment or a Eurodollar Rate
Segment.


 


“Unfunded Pension Liability” means the
excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16)
of ERISA, over the current value of that Pension Plan’s assets,


 


24

















 


determined in accordance with
the assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.


 


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


 


“Unreimbursed Amount” has the meaning
set forth in Section 2.04(c)(i).


 


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


 


(a)                                  The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.


 


(b)                                 (i)                                     The
words “herein,” “hereto,” “hereof” and “hereunder”
and words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.


 


(ii)                                  Article,
Section, Exhibit and Schedule references are to the Loan Document in which
such reference appears.


 


(iii)                               The
term “including” is by way of example and not limitation.


 


(iv)                              The
term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other
writings, however evidenced, whether in physical or electronic form.


 


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


 


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


 


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


 


(b)                                 If
at any time any change in GAAP would affect the computation of any financial
ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders
and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided  that,
until so amended, (i) such ratio or requirement shall continue to be computed
in accordance with GAAP prior to such change therein and (ii) the Borrower
shall provide to the Administrative Agent and


 


25

















 


the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.


 


(c)                                  With
respect to any Acquisition consummated after the Closing Date the following
shall apply:


 


(i)                                     commencing
on the first fiscal quarter end of the Borrower next following the date of each
Acquisition, for each of the next four periods of four fiscal quarters of the
Borrower, Adjusted Consolidated EBITDA or Consolidated EBITDA, as applicable,
with respect to the Consolidated Leverage Ratio and the Consolidated Interest
Coverage Ratio shall include the results of operations of the Person or assets
so acquired on a historical pro forma basis, and which amounts may include such
adjustments as in each case are reasonably satisfactory to the Administrative
Agent;


 


(ii)                                  commencing
on the first fiscal quarter end of the Borrower next following the date of each
Acquisition, for each of the next four periods of four fiscal quarters of the
Borrower, Consolidated Interest Charges as a component of Consolidated EBITDA
with respect to the Consolidated Leverage Ratio shall include the results of
operations of the Person or assets so acquired, which amounts shall be
determined on a historical pro forma basis; provided, however,
Consolidated Interest Charges shall be adjusted on a historical pro forma basis
to (i) eliminate interest expense accrued during such period on any
Indebtedness repaid in connection with such Acquisition and (ii) include
interest expense on any Indebtedness (including Indebtedness hereunder)
incurred, acquired or assumed in connection with such Acquisition (“Incremental
Debt”) calculated (A) as if all such Incremental Debt had been incurred as
of the first day of such Four-Quarter Period and (B) at the following interest
rates: (I) for all periods subsequent to the date of the Acquisition and for
Incremental Debt assumed or acquired in the Acquisition and in effect prior to
the date of Acquisition, at the actual rates of interest applicable thereto,
and (II) for all periods prior to the actual incurrence of such Incremental
Debt, equal to the rate of interest actually applicable to such Incremental
Debt hereunder or under other financing documents applicable thereto as at the
end of each affected period of such four fiscal quarters, as the case may be.


 


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


 


1.05                        References to Agreements and Laws.  Unless otherwise expressly provided herein,
(a) references to Organization Documents, agreements (including the Loan
Documents) and other contractual instruments shall be deemed to include all
subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not
prohibited by any Loan Document; and (b) references to any Law shall include
all statutory and


 


26

















 


regulatory provisions consolidating, amending, replacing, supplementing
or interpreting such Law.


 


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


 


1.07                        Letter of Credit Amounts.  Unless otherwise specified, all references herein to the amount
of a Letter of Credit at any time shall be deemed to mean the maximum face
amount of such Letter of Credit after giving effect to all increases thereof
contemplated by such Letter of Credit or the Letter of Credit Application
therefor, whether or not such maximum face amount is in effect at such time.


 


ARTICLE II.

THE COMMITMENTS AND CREDIT
EXTENSIONS


 


2.01                        Term Loan A.


 


(a)                                  Subject
to the terms and conditions of this Agreement, each Term Loan A Lender
severally agrees to make an advance of its Pro Rata Term A Share of the Term
Loan A to the Borrower on the Closing Date. 
The principal amount of each Segment of the Term Loan A outstanding
hereunder from time to time shall bear interest and the Term Loan A shall be
repayable as herein provided.  No amount
of the Term Loan A repaid or prepaid by the Borrower may be reborrowed
hereunder, and no subsequent Borrowing under the Term Loan A Facility shall be
allowed after the initial such advance of the Term Loan A on the Closing Date.


 


(b)                                 Not
later than 1:00 P.M. on the Closing Date each Term Loan A Lender shall,
pursuant to the terms and subject to the conditions of this Agreement, make the
amount of its Pro Rata Term A Share of the Term Loan A available by wire
transfer to the Administrative Agent. 
Such wire transfer shall be directed to the Administrative Agent at the
Administrative Agent’s Office and shall be in the form of same day funds in
Dollars.  The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, including without limitation the satisfaction of all applicable
conditions in Sections 4.01 and 4.02, be made available to the
Borrower by delivery of the proceeds thereof as shall be directed by the
Responsible Officer of the Borrower and reasonably acceptable to the
Administrative Agent.  The initial
Borrowing of the Term Loan A shall be a single Base Rate Segment, subject to
conversion after the Closing Date in accordance with a Term Loan Interest Rate
Selection Notice delivered on the Closing Date pursuant to Section 4.01(a)
(or, if no Term Loan Interest Rate Selection Notice is so delivered on the
Closing Date, thereafter in accordance with Section 2.03).


 


2.02                        Revolving Loans.  Subject to the terms and conditions set
forth herein, each Revolving Lender severally agrees to make Revolving Loans to
the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount
of such Revolving Lender’s Revolving Credit Commitment; provided, however,
that after giving effect to any Revolving Borrowing, (i) the aggregate
Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations
shall not exceed the Aggregate Revolving Credit Commitments, and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender, plus
such Revolving Lender’s Pro


 


27

















 


Rata Revolving Share of the Outstanding Amount of all L/C Obligations, plus
such Revolving Lender’s Pro Rata Revolving Share of the Outstanding Amount of
all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Credit
Commitment.  Within the limits of each
Revolving Lender’s Revolving Credit Commitment, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.02,
prepay under Section 2.06, and reborrow under this Section 2.02.  Revolving Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.


 


2.03                        Borrowings, Conversions and
Continuations of Revolving Loans; Conversions and Continuations of Segments
of the Term Loan A.


 


(a)                                  Each
Revolving Borrowing, each conversion of Revolving Loans or Segments of the Term
Loan A from one Type to the other, and each continuation of Eurodollar Rate
Loans shall be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base
Rate Loans, and (ii) on the requested date of any Borrowing of, or conversion
to, Base Rate Loans.  Each telephonic
notice by the Borrower pursuant to this Section 2.03(a) must be
confirmed promptly by delivery to the Administrative Agent of a written
Revolving Loan Notice or Term Loan Interest Rate Selection Notice,
appropriately completed and signed by a Responsible Officer of the Borrower
(unless such Revolving Loan Notice is being delivered by the Swing Line Lender
pursuant to Section 2.05(c) or by the Administrative Agent on
behalf of the L/C Issuer pursuant to Section 2.04(c)(i)); provided
that the lack of such prompt confirmation shall not affect the conclusiveness
or binding effect of such telephonic notice. 
Each Borrowing of, conversion to or continuation of Eurodollar Rate
Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof.  Except as
provided in Sections 2.04(c) and 2.05(c), each Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $2,000,000 or a
whole multiple of $500,000 in excess thereof. 
Each Revolving Loan Notice (whether telephonic or written) shall be
substantially in the form of (or if telephonic, convey the information
requested in) Exhibit A attached hereto, and each Term Loan Interest
Rate Selection Notice (whether telephonic or written) shall be substantially in
the form of (or if telephonic, convey the information requested in) Exhibit
C attached hereto.  If the Borrower
fails to specify a Type of Revolving Loan in a Revolving Loan Notice or Type of
Segment in a Term Loan Interest Rate Selection Notice, or if the Borrower fails
to give a timely notice requesting a conversion or continuation, then the
applicable Revolving Loans and Segments of the Term Loan A shall, subject to
the last sentence of this Section 2.03(a), be made as or converted
to Base Rate Loans.  Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans.  If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Revolving Loan Notice or Term Loan Interest Rate Selection Notice, but
fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.


 


(b)                                 Following
receipt of a Revolving Loan Notice, the Administrative Agent shall promptly
notify each Revolving Lender of the amount of its Pro Rata Revolving Share of
the applicable Revolving Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify
each Revolving Lender of the details of


 


28

















 


any automatic conversion to Base Rate Loans described in the preceding
subsection.  In the case of a Revolving
Borrowing, each Revolving Lender shall make the amount of its Revolving Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day
specified in the applicable Revolving Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01),
the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the
amount of such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date
the Revolving Loan Notice with respect to such Revolving Borrowing is given by
the Borrower, there are Swing Line Loans or L/C Borrowings outstanding, then
the proceeds of such Revolving Borrowing shall be applied, first, to the
payment in full of any such L/C Borrowings, second, to the payment in
full of any such Swing Line Loans, and third, to the Borrower as
provided above.


 


(c)                                  Except
as otherwise provided herein, a Eurodollar Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurodollar Rate
Loan.  During the existence of a
Default, (i) no Revolving Loan may be requested as, converted into or continued
as a Eurodollar Rate Loan without the consent of the Required Revolving
Lenders, and (ii) no Segment of the Term Loan A may be converted into or
continued as a Eurodollar Rate Segment without the consent of the Required Term
Loan A Lenders.


 


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


 


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


 


(f)                                    After
giving effect to the Borrowing under the Term Loan A Facility on the Closing
Date, all conversions of Segments of the Term Loan A from one Type to the
other, and all continuations of Segments of the Term Loan A as the same Type,
there shall not be more than five Interest Periods in effect with respect to
Segments of the Term Loan A.


 


2.04                        Letters of Credit.


 


(a)                                  The
Letter of Credit Commitment.


 


(i)                                     Subject
to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.04,
(1) from time to time on any Business Day during the period from the


 


29

















 


Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit for the account of
the Borrower, and to amend or renew Letters of Credit previously issued by it,
in accordance with subsection (b) below, and (2) to honor drafts under the
Letters of Credit; and (B) the Revolving Lenders severally agree to participate
in Letters of Credit issued for the account of the Borrower; provided
that the L/C Issuer shall not be obligated to make any L/C Credit Extension
with respect to any Letter of Credit, and no Revolving Lender shall be
obligated to participate in any Letter of Credit if as of the date of such L/C
Credit Extension, (x) the aggregate Outstanding Amount of all Revolving Loans,
Swing Line Loans and L/C Obligations would exceed the Aggregate Revolving
Credit Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans
of any Revolving Lender, plus such Revolving Lender’s Pro Rata Revolving
Share of the Outstanding Amount of all L/C Obligations, plus such
Revolving Lender’s Pro Rata Revolving Share of the Outstanding Amount of all
Swing Line Loans, would exceed such Revolving Lender’s Revolving Credit
Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed
the Letter of Credit Sublimit.  Within
the foregoing limits, and subject to the terms and conditions hereof, the
Borrower’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed.  All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto, and from
and after the Closing Date shall be subject to and governed by the terms and
conditions hereof.


 


(ii)                                  The
L/C Issuer shall be under no obligation to issue any Letter of Credit if:


 


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


 


(B)                                subject
to Section 2.04b)(iii), the expiry date of such requested Letter of
Credit would occur more than twelve months after the date of issuance or last
renewal, unless the Required Revolving Lenders have approved such expiry date;


 


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


 


30

















 


(D)                               the
issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer; or


 


(E)                                 such
Letter of Credit is in an initial amount less than $500,000 or is to be
denominated in a currency other than Dollars.


 


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


 


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


 


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


 


(ii)                                  Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof.  Upon receipt
by the L/C Issuer of confirmation from the Administrative Agent that the
requested issuance or amendment is permitted in accordance with the terms
hereof, then, subject to the terms and conditions hereof, the L/C Issuer shall,
on the requested date, issue a Letter of Credit for the account of the Borrower
or enter into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter
of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk participation in
such Letter


 


31

















 


of Credit in an amount
equal to the product of such Revolving Lender’s Pro Rata Revolving Share times
the amount of such Letter of Credit.


 


(iii)                               If
the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter
of Credit”); provided that any such Auto-Renewal Letter of Credit
must permit the L/C Issuer to prevent any such renewal at least once in each
twelve-month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a day
(the “Nonrenewal Notice Date”) in each such twelve-month period to be
agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer,
the Borrower shall not be required to make a specific request to the L/C Issuer
for any such renewal.  Once an Auto-Renewal
Letter of Credit has been issued, the Revolving Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the renewal of such
Letter of Credit at any time to an expiry date not later than the Letter of
Credit Expiration Date; provided, however, that the L/C Issuer
shall not permit any such renewal if (A) the L/C Issuer has determined that it
would have no obligation at such time to issue such Letter of Credit in its
renewed form under the terms hereof (by reason of the provisions of Section 2.04(a)(ii)
or otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the Nonrenewal
Notice Date (1) from the Administrative Agent that the Required Revolving
Lenders have elected not to permit such renewal or (2) from the Administrative
Agent, any Revolving Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied.


 


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


 


(c)                                  Drawings
and Reimbursements; Funding of Participations.


 


(i)                                     Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof.  Not later
than 2:00 p.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an “Honor Date”), the Borrower shall reimburse
the L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing.  If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Revolving Lender of the Honor Date, the amount of
the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of
such Revolving Lender’s Pro Rata Revolving Share thereof.  In such event, the Borrower shall be deemed
to have requested a Revolving Borrowing of Base Rate Loans to be disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.03 for the
principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Revolving Credit Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a
Revolving Loan Notice).  Any notice
given by the L/C


 


32

















 


Issuer or the
Administrative Agent pursuant to this Section 2.04(c)(i) may be
given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


(ii)                                  Each
Revolving Lender (including the Revolving Lender acting as L/C Issuer) shall
upon any notice pursuant to Section 2.04(c)(i) make funds available
to the Administrative Agent for the account of the L/C Issuer at the
Administrative Agent’s Office in an amount equal to its Pro Rata Revolving
Share of the Unreimbursed Amount not later than 4:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.04(c)(iii), each Revolving Lender that so
makes funds available shall be deemed to have made a Base Rate Revolving Loan
to the Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the L/C Issuer.


 


(iii)                               With
respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Borrowing of Base Rate Revolving Loans because the conditions set forth in Section 4.02
cannot be satisfied or for any other reason, the Borrower shall be deemed to
have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at the
Default Rate.  In such event, each
Revolving Lender’s payment to the Administrative Agent for the account of the
L/C Issuer pursuant to Section 2.04(c)(ii) shall be deemed payment
in respect of its participation in such L/C Borrowing and shall constitute an
L/C Advance from such Revolving Lender in satisfaction of its participation
obligation under this Section 2.04.


 


(iv)                              Until
each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.04(c)
to reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Revolving Lender’s Pro Rata Revolving Share of such
amount shall be solely for the account of the L/C Issuer.


 


(v)                                 Each
Revolving Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.04(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
set-off, counterclaim, recoupment, defense or other right which such Revolving
Lender may have against the L/C Issuer, the Borrower or any other Person for
any reason whatsoever; (B) the occurrence or continuance of a Default, or (C)
any other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Revolving Lender’s
obligation to make Revolving Loans pursuant to this Section 2.04(c)
is subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrower of a Revolving Loan Notice).  No such making of an L/C Advance shall relieve or otherwise
impair the obligation of the Borrower to reimburse the L/C Issuer for the
amount of any payment made by the L/C Issuer under any Letter of Credit,
together with interest as provided herein.


 


33

















 


(vi)                              If
any Revolving Lender fails to make available to the Administrative Agent for
the account of the L/C Issuer any amount required to be paid by such Revolving
Lender pursuant to the foregoing provisions of this Section 2.04(c)
by the time specified in Section 2.04(c)(ii), the L/C Issuer shall
be entitled to recover from such Revolving Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
Federal Funds Rate from time to time in effect.  A certificate of the L/C Issuer submitted to any Revolving Lender
(through the Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.


 


(d)                                 Repayment
of Participations.


 


(i)                                     At
any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Revolving Lender such Revolving Lender’s L/C Advance in
respect of such payment in accordance with Section 2.04(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash Collateral
applied thereto by the Administrative Agent***), the Administrative Agent will
distribute to such Revolving Lender its Pro Rata Revolving Share thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Revolving Lender’s L/C Advance was
outstanding) in the same funds as those received by the Administrative Agent.


 


(ii)                                  If
any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.04(c)(i) is required to be returned
under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Revolving Lender shall pay to the Administrative Agent for
the account of the L/C Issuer its Pro Rata Revolving Share thereof on demand of
the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Revolving Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect.


 


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


 


(i)                                     any
lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto;


 


(ii)                                  the
existence of any claim, counterclaim, set-off, defense or other right that the
Borrower may have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether in
connection with this


 


34

















 


Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;


 


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


 


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


 


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


 


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


 


(f)                                    Role
of L/C Issuer.  Each Revolving
Lender and the Borrower agree that, in paying any drawing under a Letter of
Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document.  None of the L/C Issuer,
any Agent-Related Person nor any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Revolving Lender for (i)
any action taken or omitted in connection herewith at the request or with the
approval of the Revolving Lenders or the Required Revolving Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application.  The
Borrower hereby assumes all risks of the acts or omissions of any beneficiary
or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not,
preclude the Borrower’s pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement.  None of the L/C Issuer, any Agent-Related
Person, nor any of the respective correspondents, participants or assignees of
the L/C Issuer, shall be liable or responsible for any of the matters described
in clauses (i) through (v) of Section 2.04(e); provided, however,
that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the


 


35

















 


extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which the Borrower proves were caused by the
L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. 
In furtherance and not in limitation of the foregoing, the L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.


 


(g)                                 Cash
Collateral.  Upon the request of the
Administrative Agent, (i) if the L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, (A) any
Letter of Credit may for any reason remain outstanding and partially or wholly
undrawn or (B) any amount remains available to be drawn under any Letter of
Credit by reason of the operation of Rule 3.14 of the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance), then in either such case the Borrower shall immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations (in an amount
equal to such Outstanding Amount determined as of the date of such L/C
Borrowing or the Letter of Credit Expiration Date, as the case may be).  For purposes hereof, “Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for
the benefit of the L/C Issuer and the Revolving Lenders, as collateral for the
L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Revolving Lenders).  Derivatives of such term have corresponding
meanings.  The Borrower hereby grants to
the Administrative Agent, for the benefit of the L/C Issuer and the Revolving
Lenders, a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. 
Cash collateral shall be maintained in blocked deposit accounts at Bank
of America.


 


(h)                                 Applicability
of ISP98.  Unless otherwise
expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of
Credit) the rules of the “International Standby Practices 1998” published by
the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance) shall apply to each
Letter of Credit.


 


(i)                                     Letter
of Credit Fees.  The Borrower shall
pay to the Administrative Agent for the account of each Revolving Lender in
accordance with its Pro Rata Revolving Share a Letter of Credit fee for each
Letter of Credit equal to the Applicable Rate times the daily maximum amount
available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit).  Such letter of credit fees shall be computed
on a quarterly basis in arrears.  Such
letter of credit fees shall be due and payable on the last Business Day of each
calendar quarter of the Borrower, commencing with the first such date to occur
after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand.  If there
is any change in the Applicable Rate during any quarter, the daily maximum


 


36

















 


amount of each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.


 


(j)                                     Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to the L/C
Issuer for its own account a fronting fee with respect to each Letter of Credit
in the amounts and at the times specified in the Fee Letter (or, in the event
that the L/C Issuer is not Bank of America, in an amount and at the times
agreed between the Borrower and the replacement L/C Issuer).  In addition, the Borrower shall pay directly
to the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and
charges are due and payable on demand and are nonrefundable.


 


(k)                                  Conflict
with Letter of Credit Application. 
In the event of any conflict between the terms hereof and the terms of
any Letter of Credit Application, the terms hereof shall control.


 


2.05                        Swing Line Loans.


 


(a)                                  The
Swing Line.  Subject to the terms
and conditions set forth herein, the Swing Line Lender agrees to make loans
(each such loan, a “Swing Line Loan”) to the Borrower from time to time on
any Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Pro Rata Revolving Share of the Outstanding Amount of Revolving Loans and L/C
Obligations of the Swing Line Lender in its capacity as a Revolving Lender, may
exceed the amount of such Swing Line Lender’s Revolving Credit Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the
aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C
Obligations shall not exceed the Aggregate Revolving Credit Commitments, and
(ii) the aggregate Outstanding Amount of the Revolving Loans of any Revolving
Lender other than the Swing Line Lender, plus such Revolving Lender’s
Pro Rata Revolving Share of the Outstanding Amount of all L/C Obligations, plus
such Revolving Lender’s Pro Rata Revolving Share of the Outstanding Amount of
all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Credit
Commitment, and provided, further, that the Borrower shall not
use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan.  Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.05, prepay under Section 2.06, and
reborrow under this Section 2.05. 
Each Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making of a Swing Line
Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Revolving Lender’s Pro Rata Revolving Share times the amount of such
Swing Line Loan.


 


(b)                                 Borrowing
Procedures.  Each Swing Line
Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing
Line Lender and the Administrative Agent, which may be given by telephone. Each
such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 p.m. on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of $500,000,
and (ii) the requested


 


37

















 


borrowing date, which shall be a Business Day.  Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Lender and the Administrative
Agent of a written Swing Line Loan Notice, appropriately completed and signed
by a Responsible Officer of the Borrower. 
Promptly after receipt by the Swing Line Lender of any telephonic Swing
Line Loan Notice, the Swing Line Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has also
received such Swing Line Loan Notice and, if not, the Swing Line Lender will
notify the Administrative Agent (by telephone or in writing) of the contents
thereof.  Unless the Swing Line Lender
has received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Lender) prior to 2:00 p.m. on the date of the
proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the proviso to
the first sentence of Section 2.05(a), or (B) that one or more of
the applicable conditions specified in Article IV is not then
satisfied, then, subject to the terms and conditions hereof, the Swing Line
Lender will, not later than 3:00 p.m. on the borrowing date specified in such
Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Borrower.


 


(c)                                  Refinancing
of Swing Line Loans.


 


(i)                                     The
Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line
Lender to so request on its behalf), that each Revolving Lender make a Base
Rate Revolving Loan in an amount equal to such Revolving Lender’s Pro Rata
Revolving Share of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which
written request shall be deemed to be a Revolving Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.03,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Revolving Credit Commitments and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the
Borrower with a copy of the applicable Revolving Loan Notice promptly after
delivering such notice to the Administrative Agent.  Each Revolving Lender shall make an amount equal to its Pro Rata
Revolving Share of the amount specified in such Revolving Loan Notice available
to the Administrative Agent in immediately available funds for the account of
the Swing Line Lender at the Administrative Agent’s Office not later than 1:00
p.m. on the day specified in such Revolving Loan Notice, whereupon, subject to Section 2.05(c)(ii),
each Revolving Lender that so makes funds available shall be deemed to have
made a Base Rate Revolving Loan to the Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the Swing Line Lender.


 


(ii)                                  If
for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Borrowing in accordance with Section 2.05(c)(i), the request for
Base Rate Revolving Loans submitted by the Swing Line Lender as set forth
herein shall be deemed to be a request by the Swing Line Lender that each of
the Revolving Lenders fund its risk participation in the relevant Swing Line
Loan and each Revolving Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.05(c)(i) shall
be deemed payment in respect of such participation.


 


38

















 


(iii)                               If
any Revolving Lender fails to make available to the Administrative Agent for
the account of the Swing Line Lender any amount required to be paid by such
Revolving Lender pursuant to the foregoing provisions of this Section 2.05(c)
by the time specified in Section 2.05(c)(i), the Swing Line Lender
shall be entitled to recover from such Revolving Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the Swing Line Lender at a rate per annum equal to
the Federal Funds Rate from time to time in effect.  A certificate of the Swing Line Lender submitted to any Revolving
Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.


 


(iv)                              Each
Revolving Lender’s obligation to make Revolving Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this Section 2.05(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense or
other right which such Revolving Lender may have against the Swing Line Lender,
the Borrower or any other Person for any reason whatsoever, (B) the occurrence
or continuance of a Default, or (C) any other occurrence, event or condition, whether
or not similar to any of the foregoing; provided, however, that
each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.05(c)
is subject to the conditions set forth in Section 4.02.  No such funding of risk participations shall
relieve or otherwise impair the obligation of the Borrower to repay Swing Line
Loans, together with interest as provided herein.


 


(d)                                 Repayment
of Participations.


 


(i)                                     At
any time after any Revolving Lender has purchased and funded a risk participation
in a Swing Line Loan, if the Swing Line Lender receives any payment on account
of such Swing Line Loan, the Swing Line Lender will distribute to such
Revolving Lender its Pro Rata Revolving Share of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Revolving Lender’s risk participation was funded) in the same
funds as those received by the Swing Line Lender.


 


(ii)                                  If
any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line
Lender under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the Swing Line Lender in
its discretion), each Revolving Lender shall pay to the Swing Line Lender its
Pro Rata Revolving Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent will make such
demand upon the request of the Swing Line Lender.


 


(e)                                  Interest
for Account of Swing Line Lender. 
The Swing Line Lender shall be responsible for invoicing the Borrower
for interest on the Swing Line Loans.  Until each Revolving Lender funds its Base Rate Revolving Loan or
risk participation pursuant to this


 


39

















 


Section 2.05 to refinance such
Revolving Lender’s Pro Rata Revolving Share of any Swing Line Loan, interest in
respect of such Pro Rata Revolving Share shall be solely for the account of the
Swing Line Lender.


 


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


 


2.06                        Prepayments.


 


(a)                                  The
Borrower may, upon notice to the Administrative Agent, at any time or from time
to time voluntarily prepay Revolving Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 2:00 p.m. (A) three Business Days prior to
any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Revolving Loans; (ii) any prepayment of Eurodollar Rate
Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Revolving
Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding.  Each
such notice shall specify the date and amount of such prepayment and the
Type(s) of Revolving Loans to be prepaid. 
The Administrative Agent will promptly notify each Revolving Lender of
its receipt of each such notice, and of the amount of such Revolving Lender’s
Pro Rata Revolving Share of such prepayment. 
If such notice is given by the Borrower, the Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. 
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest thereon, together with any additional amounts required pursuant
to Section 3.05.  Each such
prepayment shall be applied to the Revolving Loans of the Revolving Lenders in
accordance with their respective Pro Rata Revolving Shares.


 


(b)                                 In
addition to the required payments of principal of the Term Loan A set forth in Section 2.08(c),
the Borrower may, upon irrevocable notice to the Administrative Agent,
voluntarily prepay the Term Loan A in whole or in part from time to time on any
Business Day, without penalty or premium; provided that (i) such notice
must be received by the Administrative Agent not later than 12:00 Noon (A)
three Business Days prior to any date of prepayment of Eurodollar Rate Loans,
and (B) on the date of prepayment of Base Rate Loans, (ii) any prepayment of
the Term Loan A shall be in a principal amount of $5,000,000 or a whole multiple
of $1,000,000 in excess thereof (or in the entire remaining principal balance
of the Term Loan A), and (iii) any such prepayment will be applied among the
Term Loan A Lenders in accordance with their respective Pro Rata Term A Shares.  Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Segment to be prepaid.  The Responsible Officer of the Borrower
shall provide the Administrative Agent written confirmation of each such telephonic
notice but failure to provide such confirmation shall not affect the validity
of such telephonic notice.  The
Administrative Agent will promptly notify each Term Loan A Lender of its
receipt of each such notice, and such Term Loan A Lender’s pro rata share of
such prepayment (calculated in accordance with the first sentence of this
subsection (b)).  If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein.  Any prepayment of a Eurodollar
Rate Loan shall be accompanied by all accrued interest thereon,


 


40

















 


together with any additional amounts required pursuant to Section 3.05.  All prepayments of principal under this Section 2.06(b)
shall be applied pro rata across the remaining installments of principal of the
Term Loan A pursuant to Section 2.08(c).


 


(c)                                  The
Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 4:00 p.m. on the date of the prepayment, and
(ii) any such prepayment shall be in a minimum principal amount of
$100,000.  Each such notice shall
specify the date and amount of such prepayment.  If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.


 


(d)                                 If
for any reason the Outstanding Amount of all Revolving Loans, Swing Line Loans
and L/C Obligations at any time exceeds the Aggregate Revolving Credit
Commitments then in effect, the Borrower shall immediately prepay Revolving
Loans and/or Swing Line Loans, and/or Cash Collateralize the L/C Obligations,
as it shall select, in an aggregate amount equal to such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.06(d) unless after
the prepayment in full of the Revolving Loans and Swing Line Loans the
Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations
at any time exceeds the Aggregate Revolving Credit Commitments then in effect.


 


2.07                        Termination
or Reduction of Commitments.  The
Borrower may, upon notice to the Administrative Agent, terminate the Aggregate
Revolving Credit Commitments, or from time to time permanently reduce the
Aggregate Revolving Credit Commitments; provided that (i) any such
notice shall be received by the Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate amount of $10,000,000 or any whole
multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Revolving Credit Commitments if, after giving
effect thereto and to any concurrent prepayments hereunder, the then aggregate
Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations
would exceed the Aggregate Revolving Credit Commitments, and (iv) if, after
giving effect to any reduction of the Aggregate Revolving Credit Commitments,
the Letter of Credit Sublimit or the Swing Line Sublimit would exceed the
amount of the Aggregate Revolving Credit Commitments, such Letter of Credit
Sublimit or the Swing Line Sublimit, as applicable, shall be automatically
reduced by the amount of such excess. 
The Administrative Agent will promptly notify the Revolving Lenders of
any such notice of termination or reduction of the Aggregate Revolving Credit
Commitments.  Any reduction of the
Aggregate Revolving Credit Commitments shall be applied to the Revolving Credit
Commitment of each Revolving Lender according to its Pro Rata Revolving
Share.  All Commitment Fees accrued
until the effective date of any termination of the Aggregate Revolving Credit
Commitments shall be paid on the effective date of such termination.


 


2.08                        Repayment of Loans.  The Borrower shall repay:


 


41

















 


(a)                                  to
the Revolving Lenders on the Revolving Credit Maturity Date the aggregate
principal amount of Revolving Loans outstanding on such date;


 


(b)                                 each
Swing Line Loan on the earlier to occur of (i) the date that is 10 Business
Days after the advance of such Swing Line Loan and (ii) the Revolving Credit
Maturity Date; and


 


(c)                                  the
principal amount of the Term Loan A in consecutive quarterly installments equal
to $18,750,000 per quarter, subject to adjustments for prepayments made
pursuant to Section 2.06, each such payment to be made on the dates
set forth below, provided that all Outstanding Amounts of the Term Loan A will
be repaid on the Term Loan A Maturity Date:


 


March 31, 2005


June 30, 2005


September 30, 2005


December 29, 2005


March 31, 2006


June 30, 2006


September 29, 2006


December 28, 2006


March 30, 2007


June 29, 2007


September 28, 2007


December 28, 2007


March 28, 2008


June 27, 2008


September 26, 2008


 


2.09                        Interest.


 


(a)                                  Subject
to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan
shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate.


 


(b)                                 If
any amount payable by the Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.  Furthermore, while any Default exists, the Borrower shall pay
interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.  Accrued and


 


42

















 


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


 


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


 


2.10                        Fees.  In addition to certain fees described in Section 2.04(i)
and (j):


 


(a)                                  Commitment
Fee.  The Borrower shall pay to the
Administrative Agent for the account of each Revolving Lender in accordance
with its Pro Rata Revolving Share, a commitment fee (the “Commitment Fee”)
equal to the Applicable Rate times the actual daily amount by which the
Aggregate Revolving Credit Commitments exceed the sum of (i) the Outstanding
Amount of Revolving Loans and (ii) the Outstanding Amount of L/C
Obligations.  The Commitment Fee shall
accrue at all times during the Availability Period, including at any time
during which one or more of the conditions in Article IV is not
met, and shall be due and payable quarterly in arrears on the last Business Day
of each calendar quarter of the Borrower, commencing with the first such date
to occur after the Closing Date, and on the Revolving Credit Maturity Date.  The Commitment Fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.


 


(b)                                 Other
Fees.  The Borrower shall pay (i) to
the Arranger and the Administrative Agent for their own respective accounts
fees in the amounts and at the times specified in the Fee Letter, and (ii) to
the Lenders such fees as shall have been separately agreed upon in writing in
the amounts and at the times so specified. 
All such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.


 


2.11                        Computation
of Interest and Fees.  All computations
of interest for Base Rate Loans when the Base Rate is determined by Bank of
America’s “prime rate” shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. 
All other computations of fees and interest shall be made on the basis
of a 360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis of a 365-day
year).  Interest shall accrue on each Loan
for the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.13(a), bear interest for one day.


 


2.12                        Evidence
of Debt.


 


(a)                                  The
Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent
in the ordinary course of business.  The
accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Credit
Extensions made by


 


43

















 


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


 


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


 


2.13                        Payments Generally.


 


(a)                                  All
payments to be made by the Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided
herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent’s Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified
herein.  The Administrative Agent will
promptly distribute to each Lender its Pro Rata Revolving Share or Pro Rata
Term A Share (or other applicable share as provided herein), as applicable, of
such payment in like funds as received by wire transfer to such Lender’s
Lending Office.  All payments received
by the Administrative Agent after 2:00 p.m. shall be deemed received on the
next succeeding Business Day and any applicable interest or fee shall continue
to accrue.


 


(b)                                 Subject
to the provisions set forth in the definition of Interest Period, if any
payment to be made by the Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and
such extension of time shall be reflected in computing interest or fees, as the
case may be.


 


(c)                                  Unless
the Borrower or any Lender has notified the Administrative Agent, prior to the
date any payment is required to be made by it to the Administrative Agent
hereunder, that the Borrower or such Lender, as the case may be, will not make
such payment, the Administrative Agent may assume that the Borrower or such
Lender, as the case may be, has timely made such payment and may (but shall not
be so required to), in reliance thereon, make available a corresponding amount
to the Person entitled thereto.  If and
to the extent that such payment was not in fact made to the Administrative
Agent in immediately available funds, then:


 


44

















 


(i)                                     if
the Borrower failed to make such payment, each applicable Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately available
funds, together with interest thereon in respect of each day from and including
the date such amount was made available by the Administrative Agent to such
Lender to the date such amount is repaid to the Administrative Agent in
immediately available funds at the Federal Funds Rate from time to time in
effect; and


 


(ii)                                  if
any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available
funds, together with interest thereon for the period from the date such amount
was made available by the Administrative Agent to the Borrower to the date such
amount is recovered by the Administrative Agent (the “Compensation Period”)
at a rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender’s Loan included in the applicable
Borrowing.  If such Lender does not pay
such amount forthwith upon the Administrative Agent’s demand therefor, the
Administrative Agent may make a demand therefor upon the Borrower, and the
Borrower shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal to the
rate of interest applicable to the applicable Borrowing.  Nothing herein shall be deemed to relieve
any Lender from its obligation to fulfill its Revolving Credit Commitment or
its obligation to fund its Pro Rata Term A Share of the Term Loan A or to
prejudice any rights which the Administrative Agent or the Borrower may have
against any Lender as a result of any default by such Lender hereunder.


 


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


 


(d)                                 If
any Lender makes available to the Administrative Agent funds for any Loan to be
made by such Lender as provided in the foregoing provisions of this Article II,
and such funds are not made available to the Borrower by the Administrative Agent
because the conditions to the applicable Credit Extension set forth in Article IV
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent, except to the extent such funds constitute the funding of
a risk participation under Article II, shall return such funds (in
like funds as received from such Lender) to such Lender, without interest.


 


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


 


(f)                                    The
obligations of the Term Loan A Lenders to fund each of their respective Pro
Rata Term A Shares of the Term Loan A Facility are several and not joint.  The failure of any


 


45

















 


Term Loan A Lender to fund its Pro Rata Term A Share of the Term Loan A
Facility on the Closing Date shall not relieve any other Term Loan A Lender of
its corresponding obligation to do so on the Closing Date, and no Term Loan A
Lender shall be responsible for the failure of any other Term Loan A Lender so
to fund its Pro Rata Term A Share of the Term Loan A Facility.


 


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


 


2.14                        Sharing of Payments.


 


(a)                                  If,
other than as expressly provided elsewhere herein, any Lender shall obtain on
account of the Revolving Loans or portion of the Term Loan A made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it (but not
including any amounts applied by the Swing Line Lender to outstanding Swing
Line Loans prior to the funding of risk participations therein), any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the Administrative
Agent of such fact, and (b) purchase from the other Lenders such participations
in the Revolving Loans and/or portion of the Term Loan A made by them and/or
such subparticipations in the participations in L/C Obligations or Swing Line
Loans held by them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such Revolving
Loans, such portion of the Term Loan A or such risk participations, as the case
may be, pro rata with the Revolving Lenders or Term Loan A Lenders, as
applicable; provided, however, that if all or any portion of such
excess payment is thereafter recovered from the purchasing Lender (including
pursuant to any settlement entered into by the purchasing Lender in its
discretion), such purchase shall to that extent be rescinded and each other
Lender receiving any payment relating to such excess payment shall repay to the
purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender’s ratable share (according to the proportion of (i)
the amount of such paying Lender’s required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total amount so
recovered, without further interest thereon. 
The Borrower agrees that any Lender so purchasing a participation from
another Lender may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off, but subject to Section 10.09)
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.  The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify
the applicable Lenders following any such purchases or repayments.  Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right
to give all notices, requests, demands, directions and other communications
under this Agreement with respect to the portion of the Obligations purchased
to the same extent as though the purchasing Lender were the original owner of
the Obligations purchased.


 


(b)                                 Notwithstanding
the foregoing Section 2.14(a), each Lender hereby agrees to be
bound by the provisions of the Intercreditor Agreement, and further agrees that
in the event that any Lender receives any payment to which Section 2.14(a)
would otherwise apply and any


 


46

















 


portion of such payment is required to be distributed pursuant to the
Intercreditor Agreement, such Lender shall promptly notify the Administrative
Agent thereof (including calculations of the amount to be distributed pursuant
to the Intercreditor Agreement, which may be made in consultation with the
Administrative Agent) and will distribute such amount to Persons other than
Lenders entitled thereto in accordance with the terms of the Intercreditor
Agreement, with the balance of such amount otherwise subject to Section 2.14(a)
being distributed in accordance therewith.


 


ARTICLE III.

TAXES, YIELD PROTECTION AND
ILLEGALITY


 


3.01                        Taxes.


 


(a)                                  Any
and all payments by the Borrower to or for the account of the Administrative
Agent or any Lender under any Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and corporation or franchise taxes imposed on it (in lieu
of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the Laws of which the Administrative Agent or such Lender, as
the case may be, is organized or maintains a lending office (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as “Taxes”).  If the Borrower
shall be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (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), each of the Administrative Agent and such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within 30 days after the
date of such payment, the Borrower shall furnish to the Administrative Agent
(which shall forward the same to such Lender) the original or a certified copy
of a receipt evidencing payment thereof.


 


(b)                                 In
addition, the Borrower agrees to pay any and all present or future stamp, court
or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under any Loan Document or
from the execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, any Loan Document (hereinafter referred to as “Other
Taxes”).


 


(c)                                  If
the Borrower shall be required to deduct or pay any Taxes or Other Taxes from
or in respect of any sum payable under any Loan Document to the Administrative
Agent or any Lender, the Borrower shall also pay to the Administrative Agent or
to such Lender, as the case may be, at the time interest is paid, such
additional amount that the Administrative Agent or such Lender specifies is
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) that the Administrative
Agent or such Lender would have received if such Taxes or Other Taxes had not
been imposed.


 


47

















 


(d)                                 The
Borrower agrees to indemnify the Administrative Agent and each Lender for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section)
paid by the Administrative Agent and such Lender, (ii) amounts payable under Section 3.01(c)
and (iii) any liability (including additions to tax, penalties, interest and
expenses) arising therefrom or with respect thereto, in each case whether or
not such Taxes or Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. 
Payment under this subsection (d) shall be made within 30 days
after the date the Lender or the Administrative Agent makes a demand therefor.


 


(e)                                  If
the Borrower is required to pay any amount to any Lender or the Administrative
Agent pursuant to Section 3.01(c) or (d), then at the
request of the Borrower such Lender shall use its reasonable efforts
(consistent with legal and regulatory restrictions) to change the jurisdiction
of its Lending Office so as to eliminate any such additional payment by the
Borrower which may thereafter accrue, if such change in the sole judgment of
such Lender is not otherwise disadvantageous to such Lender.


 


(f)                                    If
the Administrative Agent or any Lender receives a refund from a taxation
authority in respect of any Taxes or Other Taxes for which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts hereunder, it shall within 30 days from the date of such
receipt pay over the amount of such refund (including any interest paid or
credited by the relevant taxing authority or Governmental Authority with
respect to such refund) to the Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower with respect to the
Taxes or Other Taxes giving rise to such refund), net of all reasonable
out-of-pocket expenses of such Lender related to claiming such refund and
without interest (other than interest paid by the relevant taxation authority
with respect to such refund); provided, however, that the Borrower
agrees to repay, upon the request of such Lender, the amount paid over to the
Borrower (plus penalties, interest or other charges) to such Lender in the event
such Lender is required to repay such refund to such taxation authority.


 


3.02                        Illegality.  If any Lender determines that any Law has
made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Eurodollar Rate Loans, or to determine or charge interest rates based upon
the Eurodollar Rate, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate
Loans shall be suspended until such Lender notifies the Administrative Agent
and the Borrower that the circumstances giving rise to such determination no
longer exist.  Upon receipt of such
notice, the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or
converted.  Each Lender agrees to
designate a different Lending Office if such designation will avoid the


 


48

















 


need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.


 


3.03                        Inability to Determine Rates.  If the Required Lenders determine that for
any reason adequate and reasonable means do not exist for determining the
Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or that the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, the
Administrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, the obligation of the Lenders to
make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice.  Upon receipt of such
notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will
be deemed to have converted such request into a request for a Borrowing of Base
Rate Loans in the amount specified therein.


 


3.04                        Increased Cost and Reduced Return;
Capital Adequacy; Reserves on Eurodollar Rate Loans.


 


(a)                                  If
any Lender determines that as a result of the introduction of or any change in
or in the interpretation of any Law, or such Lender’s compliance therewith,
there shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Loans or (as the case may be)
issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section 3.01
shall govern), (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office, and (iii) reserve requirements
contemplated by Section 3.04(c)), then from time to time upon
demand of such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction.


 


(b)                                 If
any Lender determines that the introduction of any Law regarding capital
adequacy or any change therein or in the interpretation thereof, or compliance
by such Lender (or its Lending Office) therewith, has the effect of reducing
the rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of such Lender’s obligations hereunder (taking
into consideration its policies with respect to capital adequacy and such
Lender’s desired return on capital), then from time to time upon demand of such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to such Lender such additional amounts as will compensate such Lender
for such reduction.


 


(c)                                  The
Borrower shall pay to each Lender, as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each
Eurodollar Rate Loan equal to the actual costs of such reserves allocated to
such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive absent manifest error), which shall be due
and payable on each


 


49

















 


date on which interest is payable on such Loan, provided the
Borrower shall have received at least 15 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender.  If a Lender fails to give notice 15 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 15 days from receipt of such notice.


 


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


 


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


 


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


 


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


 


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


 


3.06                        Matters Applicable to all Requests
for Compensation.


 


(a)                                  A
certificate of the Administrative Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error.  In determining such
amount, the Administrative Agent or such Lender may use any reasonable
averaging and attribution methods.


 


(b)                                 Failure
or delay on the part of any Lender (including in this Section 3.06(b)
the Swing Line Lender and the L/C Issuer) or the Administrative Agent to demand
compensation, reimbursement or indemnity under this Article III for
Taxes, Other Taxes, increased costs, reductions in amounts received or
receivable, reduction in return on capital or otherwise shall not constitute a
waiver of such Lender’s or the Administrative Agent’s right to demand such
compensation, provided that neither any Lender nor the Administrative
Agent shall be entitled to compensation under this Article III for
any amount with respect to any date unless such Lender or the Administrative
Agent, as applicable, shall have notified the Borrower of such request for
compensation not more than 130 days after the later of (i) such date and (ii)
the date on which such Lender or the Administrative Agent, as applicable, shall
have become aware of its right to compensation for any such amount.


 


50

















 


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


 


3.08                        Replacement
Lenders.  In the event any Lender (a) seeks additional
compensation pursuant to either Section 3.01 or 3.04 or (b)
is restricted from making any Eurodollar Rate Loans or providing Eurodollar
Rate Segments under this Agreement, or (c) fails to approve any amendment,
waiver or consent requested by the Borrower pursuant to Section 10.01
that has received the written approval of not less than the Required Lenders
but also requires the approval of such Lender (any such Lender, a “Restricted
Lender”), so long as no Default or Event of Default shall have occurred and
be continuing and the Borrower has obtained a commitment (in an amount not less
than the entire amount of such Restricted Lender’s Revolving Credit Commitment
and Pro Rata Term A Share of the Outstanding Amount of the Term Loan A) from
one or more Lenders or Eligible Assignees, who does not suffer from the same
impairment as the Restricted Lender with respect to matters in (a) or (b)
above, to become a Lender for all purposes hereunder (such Lender or Lenders
referred to as the “Replacement Lender”), the Borrower may cause such
Restricted Lender to be replaced by, and to assign all its rights and
obligations under this Agreement (including its Revolving Credit Commitment and
its Loans) pursuant to Section 10.07 to, such Replacement Lender so
long as such Replacement Lender is reasonably acceptable to the Administrative
Agent.  Such Restricted Lender agrees to
execute and to deliver to the Administrative Agent one or more Assignment and
Assumption Agreements with such Replacement Lender as provided in Section 10.07
upon payment at par of all principal, accrued interest, accrued fees and other
amounts accrued or owing under this Agreement to such Restricted Lender, and
such Replacement Lender shall pay to the Administrative Agent the processing
fee required by Section 10.07 in connection with such assignment.  The Restricted Lender making such assignment
will be entitled to compensation for any expenses or other amounts which would
be owing to such Restricted Lender pursuant to any indemnification provision
hereof (including, if applicable, Section 3.05) as if the Borrower
had prepaid the Loans of such Lender (and terminated its Revolving Credit
Commitment, if applicable) rather than such Restricted Lender having assigned
its interest hereunder.  Notwithstanding
any foregoing provision of this Section 3.08, the provisions hereof
will not apply to any event or occurrence that would otherwise give rise to its
application if such event or occurrence, in the reasonable judgment of the
Administrative Agent, is one of general application that affects all or a majority
of the Revolving Lenders, the Term Loan A Lenders, or both.


 


ARTICLE IV.

CONDITIONS PRECEDENT TO SIGNING
AND CREDIT EXTENSIONS


 


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


 


(a)                                  Except
to the extent deferred to a reasonable later date after the Closing Date at the
reasonable discretion of the Administrative Agent pursuant to the post-closing
agreement (the “Post-Closing Agreement”) entered into between the
Borrower and the Administrative Agent as of the Closing Date, a copy of which
will be delivered to each of the Lenders, the Administrative Agent’s receipt of
the following, each of which shall be originals or facsimiles (followed


 


51

















 


promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the signing Loan Party, each dated the
Closing Date (or, in the case of certificates of governmental officials, a
recent date before the Closing Date) and each in form and substance
satisfactory to the Administrative Agent and its legal counsel:


 


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


 


(ii)                                  a
(x) Revolving Note executed by the Borrower in favor of each Revolving Lender
requesting a Revolving Note, (y) Term Loan A Note executed by the Borrower in
favor of each Term Loan A Lender requesting a Term Loan A Note, and (z) a Swing
Line Note executed by the Borrower in favor of the Swing Line Lender; and


 


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


 


(iv)                              with
respect to each of the Loan Parties (determined after giving effect to the
Merger), such documents and certifications as the Administrative Agent may
reasonably require to evidence that each such Loan Party is duly organized or
formed, validly existing, in good standing in its jurisdiction of formation,
including Organization Documents, certificates of good standing and/or
qualification to engage in business;


 


(v)                                 a
favorable opinion of Stoel Rives LLP, counsel to the Loan Parties, and such
other counsel as are determined by the Administrative Agent to be reasonably
necessary, in each case addressed to the Administrative Agent and each Lender
and in form and substance satisfactory to the Administrative Agent;


 


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


 


(vii)                           a
certificate signed by a Responsible Officer of the Borrower certifying:


 


(A)                              that
the conditions specified in Sections 4.02(a) and (b) have been
satisfied;


 


(B)                                that
no Closing Date Material Adverse Effect has occurred;


 


(C)                                the
current Debt Ratings, which shall not be lower than Baa3 by Moody’s and BBB- by
S&P;


 


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(D)                               that
after giving effect to the Merger, the effectiveness of the Acquired Company
Note Amendment, the issuance of the New Public Notes and all Indebtedness
incurred thereunder on or prior to the Closing Date, the assumption of the
Acquired Company Notes, the repayment of the Existing Acquired Company Credit
Agreement and the Existing Borrower Credit Agreement, and all Credit Extensions
under this Agreement made on the Closing Date, the amount by which the
Aggregate Revolving Credit Commitments exceed the aggregate Outstanding Amount
of all Revolving Loans, Swing Line Loans and L/C Obligations shall not be less
than $150,000,000;


 


(E)                                 that
(I) the Merger has been consummated, or is being consummated substantially
simultaneously herewith, in accordance in all material respects with the terms
of the Transaction Documents and all other material documents with respect to
the Merger and in material compliance with applicable Laws and regulatory
approvals, (II) all material governmental, shareholder, director and third
party consents and approvals necessary in connection with the Merger shall have
been obtained, (III) all such consents and approvals shall be in force and
effect, (IV) all applicable waiting periods shall have expired (including the
expiration or early termination of any Hart-Scott-Rodino waiting period)
without any action being taken by any Governmental Authority that could
restrain, prevent or impose any material adverse conditions on the Merger or
that could seek or threaten any of the foregoing, (V) all indebtedness under
the Existing Acquired Company Credit Agreement has been paid in full and
terminated or is being paid in full and terminated substantially simultaneously
herewith, (VI) the Tax Opinion Condition has been satisfied without the
occurrence of any Tax Opinion Adjustment Event, and (VII) all conditions
precedent to the consummation of the Merger have been satisfied without waiver
(except to the extent such waiver is not material or detrimental to the Lenders
or the Administrative Agent has consented thereto, which consent shall not be
unreasonably withheld);


 


(F)                                 that
the assumption of all of the Acquired Company Notes has been successfully
consummated or is being consummated substantially simultaneously herewith;


 


(G)                                that
each of the Acquired Company Note Amendments has been successfully consummated
or is being consummated substantially simultaneously herewith; and


 


(H)                               that
the New Public Notes have been successfully issued or are being issued
substantially simultaneously herewith;


 


together with such other evidence of or documentation relating to any
matters described in (A) through (H) above as the Administrative Agent may
request;


 


53

















 


(viii)                        certified
copies of all material documents with respect to the New Public Notes, each of which shall be in form and substance
satisfactory to the Administrative Agent and each of the Lenders;


 


(ix)                                certified
copies of all material documents with respect to each of the Acquired Company
Note Amendments, each of which shall be in form and substance satisfactory to
the Administrative Agent and each of the Lenders;


 


(x)                                   copies
of all material documents with respect to the Merger, certified by a
Responsible Officer of the Borrower, each of which material documents other
than the Merger Agreement shall be in form and substance reasonably
satisfactory to the Administrative Agent, and which certificate shall further
state either (A) that the Merger Agreement has not been altered, amended or
otherwise changed or supplemented since its execution by the parties thereto on
August 16, 2003 or (B) that the Merger Agreement has been so altered,
amended or otherwise changed or supplemented and identifying the manner
thereof, provided that no such alteration, amendment or other change or
supplement may be in any respect materially adverse to the Borrower, the
Administrative Agent or any of the Lenders unless the Administrative Agent and
the Required Lenders have consented thereto;


 


(xi)                                (A)
the annual (or other audited) financial statements of each of (x) the Borrower
and its Subsidiaries for the fiscal years ended April 1, 2001,
March 31, 2002 and March 30, 2003 and (y) the Acquired Company and
its Subsidiaries for the fiscal years ended December 31, 2000, 2001 and
2002, (B) interim financial statements of each of the Borrower and the Acquired
Company and their respective Subsidiaries dated the end of the most recent
fiscal quarter of each of them for which financial statements are available,
(C) pro forma consolidated financial statements of the Borrower and its
Subsidiaries (giving effect to the Merger), (D) projected balance sheets,
income statements and cash flow statements of the Borrower and its Subsidiaries
prepared on an annual basis through March 31, 2008, (E) such other
financial information and information relating to the Merger as the Administrative
Agent may reasonably request, and (F) a Compliance Certificate for the Borrower
and its Subsidiaries, prepared as of the last day of the fiscal quarter of the
Borrower most recently ended prior to the Closing Date, pro forma for the
Merger and the occurrence of the Closing Date (including the effectiveness of
the Acquired Company Note Amendments, the issuance of the New Public Notes and
all Indebtedness incurred thereunder on or prior to the Closing Date, the
assumption of the Acquired Company Notes, the repayment of the Existing
Acquired Company Credit Agreement and the Existing Borrower Credit Agreement,
and all Credit Extensions under this Agreement made on the Closing Date);


 


(xii)                             evidence
that the Existing Acquired Company Credit Agreement has been or concurrently
with the Closing Date is being terminated and all Liens securing obligations
under the Existing Acquired Company Credit Agreement, if any, have been or
concurrently with the Closing Date are being released;


 


(xiii)                          evidence
that the Existing Borrower Credit Agreement has been or concurrently with the
Closing Date is being terminated and all Liens securing obligations


 


54

















 


under the Existing
Borrower Credit Agreement, if any, have been or concurrently with the Closing
Date are being released, provided that, by its execution of this
Agreement, each Lender hereto that is a party to the Existing Borrower Credit
Agreement waives the advance notice required for (x) the early termination of
commitments pursuant to Section 2.05 of the Existing Borrower Credit
Agreement and (y) the voluntary prepayment of outstandings pursuant to
Section 2.07 of the Existing Borrower Credit Agreement;


 


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


 


(b)                                 Any
fees required to be paid on or before the Closing Date shall have been paid.


 


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


 


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


 


(a)                                  The
representations and warranties of the Borrower and each other Loan Party
contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section 4.02,
the representations and warranties contained in subsections (a) and (c) of Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01; provided
that solely with respect to the making of the representations and warranties
contained in Article V or any other Loan Document on the Closing
Date (including in connection with the initial Credit Extensions hereunder) any
use of the term “Material Adverse Effect” in any such representation or
warranty shall be deemed to refer to the term “Closing Date Material Adverse
Effect.”


 


(b)                                 No
Default shall exist, or would result from such proposed Credit Extension.


 


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


 


Each Request for Credit Extension (other than
a Revolving Loan Notice requesting only a conversion of Revolving Loans to the
other Type, or a continuation of Eurodollar Rate Loans) submitted by the
Borrower shall be deemed to be a representation and warranty that the


 


55

















 


conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and warrants (in each
case other than Sections 5.05(a), (b), (c)  and (d) and Section 5.19,
giving effect to the Merger) to the Administrative Agent and the Lenders that:


 


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


 


5.02                        Authorization; No
Contravention.  The
execution, delivery and performance by each Loan Party of each Loan Document to
which such Person is party, have been duly authorized by all necessary
corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person’s Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, (i) any Contractual Obligation to which such Person is a party
or (ii) any order, injunction, writ or decree of any Governmental Authority or
any arbitral award to which such Person or its property is subject; or (c)
violate any Law.


 


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


 


5.04                        Binding Effect.  This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. 
This Agreement constitutes, and each other Loan Document when so
delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance
with its terms.


 


5.05                        Financial Statements; No Material Adverse Effect.


 


(a)                                  Each
of the Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of 


 


56

















 


the date thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; and (iii) show
all material indebtedness and other liabilities, direct or contingent, of the
Borrower and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.


 


(b)                                 Except
to the extent in each case the failure thereof could not reasonably be expected
to have a Material Adverse Effect, each of the Audited Acquired Company
Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present the financial condition of the Acquired
Company and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Acquired Company and its Subsidiaries as of the
date thereof, including liabilities for taxes, material commitments and
Indebtedness.


 


(c)                                  The
unaudited consolidated financial statements of the Borrower and its
Subsidiaries dated September 28, 2003, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments.


 


(d)                                 Except
to the extent in each case the failure thereof could not reasonably be expected
to have a Material Adverse Effect, the unaudited consolidated financial
statements of the Acquired Company and its Subsidiaries dated September 30,
2003, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarter ended on that date
(i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein, and (ii)
fairly present the financial condition of the Acquired Company and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments.


 


(e)                                  The
pro forma financial statements of the Borrower and its Subsidiaries referred to
in Section 4.01(a)(xi)(C) (A) were prepared on a basis consistent
with GAAP as applied to the Borrower’s financial statements, (B) have been
prepared in good faith by the Borrower based on reasonable assumptions, (C) are
based on the best information available to the Borrower as of the date of
delivery thereof, (D) accurately reflect all material adjustments required to
be made to give effect to the Merger, the effectiveness of the Acquired Company
Note Amendments, all Credit Extensions under this Agreement, the issuance of
the New Public Notes and all Indebtedness incurred thereunder on or prior to
the Closing Date, the repayment of the Existing Acquired Company Credit
Agreement and the Existing Borrower Credit Agreement, and the assumption of the
Acquired Company Notes, and (E) fairly present on a pro forma basis the 


 


57

















 


estimated consolidated financial position and condition of the Borrower
and its Subsidiaries as of the date thereof, assuming consummation of the
Merger and the related transactions.


 


(f)                                    Schedule 5.05
sets forth all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its consolidated Subsidiaries (after giving
effect to the Merger, the effectiveness of the Acquired Company Note
Amendments, all Credit Extensions under this Agreement, the issuance of the New
Public Notes and all Indebtedness incurred thereunder on or prior to the
Closing Date,  the repayment of the
Existing Acquired Company Credit Agreement and the Existing Borrower Credit
Agreement, and the assumption of the Acquired Company Notes) as of the date
hereof to the extent not included in the pro forma financial statements
delivered pursuant to Section 5.05(e), including liabilities for
taxes, material commitments and Indebtedness.


 


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


 


5.06                        Litigation.  Except as specifically disclosed in Schedule 5.06,
there are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Borrower, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Borrower or
any of its Subsidiaries or against any of their properties or revenues that (a)
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby (including, as of the Closing Date,
the Merger), or (b) either individually or in the aggregate, if determined
adversely to the Borrower or any of its Subsidiaries, would reasonably be
expected to have a Material Adverse Effect.


 


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


 


5.08                        Ownership of Property; Liens.  Each of the Borrower and each Subsidiary has
good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.  The property of the Borrower and its
Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.


 


5.09                        Environmental Compliance.  The Borrower conducts in the ordinary course of business a review
of the effect of existing Environmental Laws and claims alleging potential
liability or responsibility for violation of any Environmental Law on its
businesses, operations and properties (including those of its Subsidiaries),
and as a result thereof the Borrower has reasonably concluded that, except as
specifically disclosed in Schedule 5.09, such Environmental Laws
and claims could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.


 


58

















 


5.10                        Insurance.  The properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Borrower, in such amounts (after giving effect
to any self-insurance compatible with the following standards), with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
the Borrower or the applicable Subsidiary operates.


 


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


 


5.12                        ERISA Compliance.  Except as specifically disclosed on Schedule 5.12:


 


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


 


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


 


(c)                                  (i)  No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability in
excess, individually or when aggregated with the Unfunded Pension Liability of
all other Pension Plans, of $100,000,000; (iii) neither the Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject
to Sections 4069 or 4212(c) of ERISA.


 


59

















 


5.13                        Subsidiaries.  As of the Closing Date (after giving effect
to the Merger), the Borrower has no Subsidiaries other than those specifically
disclosed in Part (a) of Schedule 5.13 and has no material  equity investments in any other
corporation or entity other than those specifically disclosed in Part (b) of Schedule 5.13.


 


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


 


(a)                                  The
Borrower is not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock.


 


(b)                                 None
of the Borrower, any Person Controlling the Borrower, or any Subsidiary (i) is
a “holding company,” or a “subsidiary company” of a “holding company,” or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding
company,” within the meaning of the Public Utility Holding Company Act of 1935,
or (ii) is or is required to be registered as an “investment company” under the
Investment Company Act of 1940.


 


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


 


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


 


5.17                        Tax Shelter Regulations.  The Borrower does not intend to treat the Loans and/or Letters of
Credit and related transactions as being a “reportable transaction” (within the
meaning of Treasury Regulation Section 1.6011-4).  In the event the Borrower determines to take
any action inconsistent with such intention, it will promptly notify the
Administrative Agent thereof.  If the
Borrower so notifies the Administrative Agent, (the Borrower acknowledges that
one or more of the Lenders may treat its Revolving Loans, its portion of the
Term Loan A and/or 


 


60

















 


its interest in Swing Line Loans and/or Letters of Credit as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1, and
such Lender or Lenders, as applicable, will maintain the lists and other
records required by such Treasury Regulation.


 


5.18                        Intellectual Property; Licenses, Etc.  The Borrower and its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights (collectively, “IP Rights”) that are reasonably necessary
for the operation of their respective businesses, without conflict with the
rights of any other Person.  To the best
knowledge of the Borrower, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Borrower or any Subsidiary infringes upon
any rights held by any other Person. 
Except as specifically disclosed in Schedule 5.18, no claim
or litigation regarding any of the foregoing is pending or, to the best
knowledge of the Borrower, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.


 


5.19                        Merger Representations.  All representations and warranties of the Purchaser or of the Borrower
in the Merger Agreement are true and correct in all material respects as of
each date made or deemed made.  To the
Borrower’s knowledge, all representations and warranties of the Acquired
Company in the Merger Agreement are true and correct in all material respects
on each date made or deemed made.


 


5.20                        Solvency.  On and after the Closing Date, the Borrower
and each of the Subsidiaries are Solvent, both individually and collectively,
measured after giving effect to (i) the consummation of the Merger, (ii) the
Credit Extension of the Term Loan A Facility hereunder on the Closing Date,
(iii) all Borrowings under the Revolving Credit Facility on the Closing Date
and thereafter, (iv) the issuance of the New Public Notes and all Indebtedness
incurred thereunder on or prior to the Closing Date and thereafter, (v) the
assumption of the Acquired Company Notes, (vi) the payment in full of all
amounts owing under, and the cancellation of, the Existing Borrower Credit
Agreement, and (vii) the payment in full of all amounts owing under, and the
cancellation of, the Existing Acquired Company Credit Agreement.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


So long as any Revolving Lender shall have
any Revolving Credit Commitment hereunder, any Loan or other Obligation
hereunder (other than unmatured indemnity obligations) shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding (other than
Obligations consisting of continuing obligations that may be owing to one or
more of the Lenders or their Affiliates pursuant to Related Swap Contracts),
the Borrower shall, and shall (except in the case of the covenants set forth in
Sections 6.01, 6.02, 6.03 and 6.11) cause each
Subsidiary to:


 


61

















 


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


 


(a)                                  as
soon as available, but in any event within 100 days after the end of each
fiscal year of the Borrower, a consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall
be prepared in accordance with generally accepted auditing standards and shall
not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit; and


 


(b)                                 as
soon as available, but in any event within 55 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal quarter and for the portion
of the Borrower’s fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail and certified by a Responsible Officer of the Borrower
as fairly presenting the financial condition, results of operations,
shareholders’ equity and cash flows of the Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.


 


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


 


6.02                        Certificates; Other Information.  Deliver to the Administrative Agent and each
Lender (other than in the case of any such notice or communication required
pursuant to clause (e)(ii) below, which such notices or communications shall be
delivered to the Administrative Agent and may be forwarded to the each Lender
by the Administrative Agent in its discretion), in form and detail reasonably
satisfactory to the Administrative Agent and the Required Lenders:


 


(a)                                  concurrently
with the delivery of the financial statements referred to in Section 6.01(a),
a certificate of its independent certified public accountants certifying such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or, if any such Default shall exist,
stating the nature and status of such event;


 


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


 


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(c)                                  promptly
after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports and
registration statements which the Borrower may file or be required to file with
the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934
and not otherwise required to be delivered to the Administrative Agent pursuant
hereto;


 


(d)                                 promptly
after the Borrower has notified the Administrative Agent of any intention by
the Borrower to treat the Loans and/or Letters of Credit and related
transactions as being a “reportable transaction” (within the meaning of
Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form
8886 or any successor form;


 


(e)                                  promptly
after distribution thereof to the relevant Persons, copies of each notice or
communication sent to holders, purchasers or creditors (or any agent or trustee
of any of the foregoing) with respect to any Material Senior Indebtedness, in
each case solely to the extent such notice or communication addresses any of
(i) a default or incipient default thereunder, (ii) a waiver or amendment with
respect thereto, or (iii) a prepayment of any amounts thereunder; and


 


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


 


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


 


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6.03                        Notices.  Promptly notify the Administrative Agent and
each Lender:


 


(a)                                  of
the occurrence of any Default;


 


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


 


(c)                                  of
the occurrence of any ERISA Event;


 


(d)                                 of
any material change in accounting policies or financial reporting practices by
the Borrower or any Subsidiary; and


 


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


 


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


 


6.04                        Payment of Obligations.  Pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including (a) all tax liabilities, assessments
and governmental charges or levies upon it or its properties or assets, unless
the same are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves in accordance with GAAP are being
maintained by the Borrower or such Subsidiary; (b) all lawful claims which, if
unpaid, would by law become a Lien upon its property unless the same are being
contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by the Borrower
or such Subsidiary; and (c) all Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness, except where the failure to do so would
not otherwise constitute a Default.


 


6.05                        Preservation of Existence, Etc.  (a) Preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization except (i) in a transaction permitted by Section 7.04
or 7.05 or (ii) with respect to any Subsidiary that is not a Guarantor
and where such failure would not reasonably be expected to result in a Material
Adverse Effect; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks, trade 


 


64

















 


names and service marks, the non-preservation of which could reasonably
be expected to have a Material Adverse Effect.


 


6.06                        Maintenance of Properties.  Except as permitted by Section 7.04 or 7.05,
(a) maintain, preserve and protect all of its material properties and equipment
necessary in the operation of its business in good working order and condition,
ordinary wear and tear excepted; (b) make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) use the
standard of care typical in the industry in the operation and maintenance of
its facilities.


 


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


 


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


 


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


 


6.10                        Inspection Rights.  Permit
representatives and independent contractors of the Administrative Agent and
each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants, all at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Borrower; provided, however,
that when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any
of the foregoing at the expense of the Borrower at any time during normal
business hours and without advance notice.


 


6.11                        Use of Proceeds.  Use the proceeds of the Credit Extensions
(a) to fund a portion of the cash consideration for the Merger and fees and
expenses related thereto, (b) to repay Indebtedness under the Existing Borrower
Credit Agreement and the Existing Acquired Company Credit Agreement, and (c)
for working capital, acquisitions and other general corporate purposes, in each
case so long as such use of proceeds is not in contravention of any Law or of
any Loan Document.


 


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6.12                        Performance of Contractual
Obligations.  Perform and discharge its obligations under
each of its Contractual Obligations, except (i) such as are being contested in
good faith by appropriate proceedings diligently conducted or (ii) to the
extent failure to do so could not reasonably be expected to have a Material
Adverse Effect.


 


6.13                        Additional
Guarantors.  Notify the
Administrative Agent at the time that any Person becomes a Material Subsidiary
or any Person is acquired or created and after such acquisition or creation
constitutes a Material Subsidiary or at the time any Person becomes a guarantor
with respect to the Acquired Company Notes, and promptly thereafter (and in any
event within 30 days) cause such Person to (a) become a Guarantor by executing
and delivering to the Administrative Agent a Guaranty Joinder Agreement or such
other document as the Administrative Agent shall deem appropriate for such
purpose, and (b) deliver to the Administrative Agent documents of the types
referred to in clauses (iii) and (iv) of Section 4.01(a) and
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (a)), all in form, content and scope
reasonably satisfactory to the Administrative Agent.


 


ARTICLE VII.

NEGATIVE COVENANTS


 


So long as any Lender shall have any
Revolving Credit Commitment hereunder, any Loan or other Obligation hereunder
(other than unmatured indemnity obligations) shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding (other than
Obligations consisting of continuing obligations that may be owing to one or
more of the Lenders or their Affiliates pursuant to Related Swap Contracts),
the Borrower shall not, nor shall it permit any Subsidiary to, directly or
indirectly:


 


7.01                        Liens.  Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, other than the following:


 


(a)                                  Liens
pursuant to any Loan Document (and, as applicable, on a pari passu or
subordinated basis reasonably acceptable to the Administrative Agent and the
Required Lenders, in favor of the holders of any of the Acquired Company Notes
and/or the holders of any of the Public Notes, in each case to the extent
required by the terms of such Indebtedness);


 


(b)                                 Liens
existing on the date hereof and listed on Schedule 7.01 (except to
the extent Liens on such Schedule 7.01 relate to a Permitted Receivables
Purchase Facility) and any renewals or extensions thereof, provided that
the property covered thereby is not increased and any renewal or extension of
the obligations secured or benefited thereby is permitted by Section 7.03(b);


 


(c)                                  Liens
for taxes, fees, assessments or other governmental charges not yet delinquent
or which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP;


 


(d)                                 carriers’,
warehousemen’s, landlords’, mechanics’, materialmen’s, repairmen’s or other
like Liens arising in the ordinary course of business which are not overdue for
a period of 


 


66

















 


more than 30 days or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person;


 


(e)                                  pledges
or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation,
other than any Lien imposed by ERISA;


 


(f)                                    deposits
to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to
judgments or litigation), performance bonds and other obligations of a like
nature incurred in the ordinary course of business;


 


(g)                                 easements,
rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
the applicable Person;


 


(h)                                 Liens
securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h) or securing appeal or other surety
bonds related to such judgments;


 


(i)                                     Liens
securing Indebtedness permitted under Section 7.03(e); provided
that (i) such Liens do not at any time encumber any property, other than the
property financed by such Indebtedness, any equity interests in any Special
Purpose Finance Subsidiary formed for the purpose of such financing to the
extent required by any capital asset or financing transaction to which such
Special Purpose Finance Subsidiary is party and the proceeds thereof, and (ii)
the Indebtedness secured thereby does not exceed the cost or fair market value,
whichever is lower, of the property being acquired on the date of acquisition;


 


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


 


(k)                                  any
other Liens (including Liens in connection with any Permitted Receivables
Purchase Facility) so long as (i) all such Indebtedness of the Borrower or any
of its Subsidiaries that is secured by all such Liens does not exceed
$300,000,000 in the aggregate at any time outstanding, and (ii) such
Indebtedness is otherwise permitted hereunder; provided that no Lien
permitted by this Section 7.01(k) may encumber any equity interest
in any Domestic Subsidiary other than Liens on equity interests in Permitted
Receivables Subsidiaries to the extent required in connection with any
Permitted Receivables Purchase Facility.


 


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7.02                        Investments.  Make, assume or suffer to exist any
Investments, except:


 


(a)                                  Investments
held by the Borrower or such Subsidiary in the form of cash equivalents or
short-term marketable debt securities in the ordinary course of business
pursuant to the Borrower’s usual and customary cash management policies and
procedures;


 


(b)                                 advances
to officers, directors and employees of the Borrower and Subsidiaries made in
accordance with the Borrower’s usual and customary practice with respect
thereto for travel, entertainment, relocation and analogous ordinary business
purposes;


 


(c)                                  Investments
of (i) the Borrower in any Guarantor, (ii) any Subsidiary in the Borrower or in
a Guarantor, or (iii) any Subsidiary that is not a Guarantor in any other
Subsidiary that is not a Guarantor;


 


(d)                                 Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;


 


(e)                                  Guarantees
permitted by Section 7.03;


 


(f)                                    Investments
constituting noncash consideration received in connection with a Disposition
permitted by Section 7.05;


 


(g)                                 Investments
existing on the Closing Date and, with respect to any such Investment in an
amount in excess of $10,000,000, set forth on Schedule 7.02;


 


(h)                                 Investments
resulting from the transfer of Permitted Receivables and related assets to a
Subsidiary, and the sale thereof by such Subsidiary, in each case pursuant to a
Permitted Receivables Purchase Facility;


 


(i)                                     Investments
incurred in order to consummate an Acquisition so long as (i) the Person to be
(or whose assets are to be) acquired does not oppose such Acquisition, (ii) the
line or lines of business of the Person to be acquired are a Permitted
Business, (iii) no Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to such Acquisition,
and (iv) such Acquisition is undertaken in accordance with all applicable Laws
and regulatory approvals;


 


(j)                                     other
Investments, including Investments of the Borrower or any Guarantor in
Subsidiaries that are not Guarantors, in an aggregate amount at any time
outstanding not to exceed the greater of (i) $200,000,000 and (ii) 5% of
Consolidated Total Assets.


 


7.03                        Indebtedness.  Create, incur, assume or suffer to exist any
Indebtedness, except:


 


(a)                                  Indebtedness
under the Loan Documents;


 


(b)                                 Indebtedness
(after giving effect to the Merger, this Agreement, the issuance of the New Public Notes,  the repayment of the Existing Borrower
Credit Agreement, the repayment of the Existing Acquired Company Credit
Agreement, and the assumption of the Acquired Company Notes) outstanding on the
Closing Date (i) under the Public Notes, (ii) under the 


 


68

















 


Acquired Company Notes, and (iii) otherwise to the extent such
Indebtedness is either listed on Schedule 7.03 (but excluding from
this subsection (iii) Indebtedness set forth on Schedule 7.03 under a
Permitted Receivables Purchase Facility) or the maximum principal amount
thereof is less than $2,000,000;


 


(c)                                  Guarantees
of the Borrower or any Subsidiary in respect of Indebtedness otherwise
permitted hereunder of the Borrower or any wholly-owned Subsidiary;


 


(d)                                 obligations
(contingent or otherwise) of the Borrower or any Subsidiary existing or arising
under any Swap Contract, provided that (i) such obligations are (or
were) entered into by such Person in the ordinary course of business for the
purpose of directly mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a “market view;” and (ii) such Swap Contract
does not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting
party;


 


(e)                                  Indebtedness
in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in Section 7.01(i);


 


(f)                                    Indebtedness
of the Borrower or any Subsidiary in connection with Investments permitted by Section 7.02(c)
or (j);


 


(g)                                 other
Indebtedness, including Indebtedness arising in connection with any Permitted
Receivables Purchase Facility, that either is (i) secured by Liens on assets of
the Borrower or any of its Subsidiaries or (ii) the material terms of which are
more restrictive than the terms of this Agreement, so long as the aggregate
principal amount of all such Indebtedness described in (i) and (ii) above does
not exceed $300,000,000 at any time outstanding; provided that the
aggregate principal amount of all Permitted Receivables Purchase Facilities at
any time outstanding may not exceed $250,000,000; and


 


(h)                                 other
unsecured Indebtedness of the Borrower or any of is Subsidiaries so long as (i)
no Default has occurred and is continuing, or would result (on a pro forma
basis) from the incurrence of such Indebtedness, and (ii) the material terms
thereof are either (A) in the case of Indebtedness of the Borrower or one of
its Domestic Subsidiaries, no more restrictive than the terms of this
Agreement, or (B) in the case of Indebtedness of a Subsidiary of the Borrower
that is not a Domestic Subsidiary, no more restrictive as applied to the
Borrower and its Domestic Subsidiaries than the terms of this Agreement.


 


7.04                        Fundamental
Changes.  Merge, dissolve,
liquidate, consolidate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person,
except that, so long as no Default exists or would result therefrom:


 


(a)                                  any
Subsidiary may merge with (i) the Borrower, provided that the Borrower
shall be the continuing or surviving Person, or (ii) any one or more other
Subsidiaries, provided that 


 


69

















 


when any Guarantor is merging with another Subsidiary, the Guarantor
shall be the continuing or surviving Person;


 


(b)                                 any
Subsidiary may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided
that if the transferor in such a transaction is a Guarantor, then the
transferee must either be the Borrower or a Guarantor;


 


(c)                                  the
Borrower or any Subsidiary may make a Disposition permitted by Section 7.05;
and


 


(d)                                 the
Borrower or any Subsidiary may merge with any Person so long as (i) (A) the
Borrower or such Subsidiary is the continuing or surviving entity or (B) in the
case of a merger with a Subsidiary, the acquired Person is, as a result of the
transaction, a wholly-owned direct or indirect Subsidiary of the Borrower and,
if applicable, complies with Section 6.13, and (ii) immediately
prior to and after giving effect to any such merger, no Default shall have
occurred and be continuing.


 


7.05                        Dispositions.  Make any Disposition or enter into any
agreement to make any Disposition, except:


 


(a)                                  Dispositions
in the ordinary course of business of (i) inventory, (ii) used, worn-out,
obsolete or surplus equipment, or (iii) defaulted receivables, in each case
whether now owned or hereafter acquired;


 


(b)                                 Dispositions
of Permitted Receivables pursuant to Permitted Receivables Purchase Facilities
permitted by Section 7.03(g);


 


(c)                                  Dispositions
of equipment or real property to the extent that (i) such property is exchanged
for credit against the purchase price of similar replacement property or (ii)
the proceeds of such Disposition are reasonably promptly applied to the
purchase price of such replacement property;


 


(d)                                 Dispositions
of property by any Subsidiary to the Borrower or to another Subsidiary, provided
that if the transferor of such property is a Guarantor then the transferee
thereof must either be the Borrower or a Guarantor; provided, further,
that, notwithstanding the foregoing, any Subsidiary that is a Guarantor may
make a Disposition of equipment in the ordinary course of business to a
Subsidiary that is not a Guarantor so long as the net book value of the
equipment transferred in any single transaction (or a series of related
transactions) does not exceed $5,000,000;


 


(e)                                  Dispositions
permitted by Section 7.04;


 


(f)                                    the
sale of cash or cash equivalents and other short-term marketable debt
securities in the ordinary course of business pursuant to the Borrower’s usual
and customary cash management policies and procedures;


 


70

















 


(g)                                 the
lease or sublease or property of the Borrower or any of its Subsidiaries to
other Persons in the ordinary course of business;


 


(h)                                 any
Disposition of assets or stock of any of the Non-Core Subsidiaries, so long as
(with respect to each such Disposition) such Disposition is for fair market
value and no Default exists or would exist immediately prior to or after giving
pro forma effect to each such Disposition;


 


(i)                                     Dispositions
by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05;
provided that (i) at the time of such Disposition, no Default shall
exist or would result from such Disposition, (ii) the aggregate book value of
all property Disposed of in reliance on this Section 7.05(i) in any
fiscal year shall not exceed $100,000,000 (the “Annual Limit”), and
(iii) the aggregate book value of all property Disposed of in reliance on this Section 7.05(i)
on a cumulative basis from the Closing Date shall not in the aggregate exceed
10% of Consolidated Total Assets (computed to exclude goodwill therefrom) as of
the end of the fiscal quarter immediately preceding the date of determination; provided
further that if in any year the aggregate amount of all Dispositions made
pursuant to this Section 7.05(i) is less than the Annual Limit (the
“Unused Amount”), the Annual Limit for the subsequent years may be
increased by such Unused Amount;


 


provided, however, that any Disposition
pursuant to clauses (a) through (i) shall be for fair market value.


 


7.06                        Change in Nature of Business.  Engage in any material line of business
substantially different from and not reasonably related, complementary or
incidental to those lines of business conducted by the Borrower and its
Subsidiaries on the date hereof.


 


7.07                        Transactions with Affiliates.  Enter into, assume or suffer to exist any
transaction of any kind with any Affiliate of the Borrower, whether or not in
the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate, provided that
the foregoing restriction shall not apply to transactions between or among the
Borrower and any of its Subsidiaries or between and among any Subsidiaries.


 


7.08                        Burdensome Agreements. 
Except as may be contained as of the Closing Date in any
agreement set forth on Schedule 7.08 hereto, enter into, assume or
suffer to exist any Contractual Obligation:


 


(a)                                  that
limits the ability of any Subsidiary to make Restricted Payments to the
Borrower or any Guarantor or to otherwise transfer property to the Borrower or
any Guarantor, other than such limitations that are (i) contained in this
Agreement or any other Loan Document, (ii) required by applicable Law or by
regulations relating to contracts between the Borrower or any of its
Subsidiaries and any Governmental Authority, (iii) contained in any Permitted
Receivables Purchase Facility; provided that any such limitations
contained in any Permitted Receivables Purchase Facility shall only apply to
the applicable Permitted Receivables 


 


71

















 


Subsidiary or (iv) applicable to any Special Purpose Finance Subsidiary
to the extent required by any transaction to which such Special Purpose Finance
Subsidiary is party;


 


(b)                                 that
limits the ability of any Subsidiary to Guarantee the Indebtedness of the
Borrower, other than such (x) limitations contained in this Agreement, any
other Loan Document, any of the Acquired Company Notes or any of the Public
Notes, and any extension, refinancing or renewal thereof (provided that
any such extension, refinancing or renewal shall be on terms no more
restrictive than those contained in the Indebtedness being extended, refinanced
or renewed), or any Permitted Receivables Purchase Facility, or (y) limitations
on any Special Purpose Finance Subsidiary to the extent required by any
transaction to which such Special Purpose Finance Subsidiary is party; provided
that (i) any such limitations contained in any of such Acquired Company Notes
or any of such Public Notes and any extension, refinancing or renewal thereof
will be limited to providing that any such Guarantee by a Subsidiary of
Indebtedness under this Agreement or any other Loan Document will be permitted
so long as such Subsidiary also Guarantees (on a pari passu or subordinated
basis) the Indebtedness of the Borrower under any such facility, and (ii) any
such limitations contained in any Permitted Receivables Purchase Facility shall
only apply to the applicable Permitted Receivables Subsidiary;


 


(c)                                  that
limits the ability of the Borrower or any Subsidiary to create, incur, assume
or suffer to exist Liens on property of such Person other than (i) such
limitations incurred or provided in favor of any holder of Indebtedness
permitted under Section 7.03(e) solely to the extent any such
limitation relates solely to the property financed by or the subject of such
Indebtedness, (ii) such limitations contained in this Agreement, any other Loan
Document, any of the Acquired Company Notes or any of the Public Notes and any
extension, refinancing or renewal thereof (provided that any such
extension, refinancing or renewal shall be on terms no more restrictive than
those contained in the Indebtedness being extended, refinanced or renewed), or
any Permitted Receivables Purchase Facility, or (iii) any limitations on any
Special Purpose Finance Subsidiary to the extent required by any transaction to
which such Special Purpose Finance Subsidiary is party; provided that
(A) any such limitations contained in any of such Acquired Company Notes or any
of such Public Notes will be limited to providing the obligee of any such
Indebtedness a Lien that is pari passu with or subordinate to any Lien, on the
same assets, granted under this Agreement or any of the Loan Documents from
time to time, and (B) any such limitations in any Permitted Receivables
Purchase Facility will be limited to the Permitted Receivables; or


 


(d)                                 that
requires the grant of a Lien to secure an obligation of such Person if a Lien
is granted to secure another obligation of such Person, other than such
limitations contained in any of the Acquired Company Notes or any of the Public
Notes, and any extension, refinancing or renewal thereof (provided that
any such extension, refinancing or renewal shall be on terms no more
restrictive than those contained in the Indebtedness being extended, refinanced
or renewed), but only so long as such obligation is limited to providing such
Person a Lien that is pari passu with or subordinate to any Lien, on the same
assets, granted under this Agreement or any of the Loan Documents from time to
time;


 


provided, however, that,
notwithstanding the foregoing, the 
provisions of this Section 7.08 shall not apply to
Contractual Obligations entered into in connection with the issuance of
Indebtedness 


 


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by Subsidiaries of the Borrower that are not Domestics Subsidiaries so
long as (x) such Indebtedness is without recourse (whether by the grant of any
Liens, the incurrence of any Guarantee or otherwise) to the Borrower or any
Domestic Subsidiary and (y) any restrictions or agreements described in this Section 7.08
do not apply to the Borrower or any Domestic Subsidiary.


 


7.09                        Use of
Proceeds.  Use the proceeds
of any Credit Extension, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others
for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose, in each case in violation
of, or for a purpose which violates or would be inconsistent with, Regulation
T, U or X of the FRB.


 


7.10                        Financial Covenants.


 


(a)                                  Consolidated
Net Worth.  Permit Consolidated Net
Worth at any time to be less than the sum of (a) $1,000,000,000 plus (b)
an amount equal to 50% of the Consolidated Net Income earned in each full
fiscal quarter ending after the Closing Date (with no deduction for a net loss
in any such fiscal quarter).


 


(b)                                 Consolidated
Interest Coverage Ratio.  Permit the
Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the
Borrower to be less than 2.50 to 1.00.


 


(c)                                  Consolidated
Leverage Ratio.  Permit the
Consolidated Leverage Ratio as of the end of any fiscal quarter of the Borrower
to be greater than the ratio set forth below opposite such fiscal quarter:


 


	
  Fiscal Quarter of the

  Borrower ending closest to:

  	
   

  	
  Leverage
  Ratio

  	
   

  
	
  December 31, 2003;

  	
   

  	
  3.50 to 1.00

  	
   

  
	
  March 31, 2004;

  	
   

  
	
  June 30, 2004;

  	
   

  
	
  September 30, 2004;

  	
   

  
	
  December 31, 2004; and

  	
   

  
	
  March 31, 2005

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2005 and thereafter

  	
   

  	
  3.25 to 1.00

  	
   

  



 


7.11                        Amendments of Certain Indebtedness.  Unless consented to by the Required Lenders,
amend, modify or change in any manner any term or condition of any Material
Senior Indebtedness or any refinancing of any Material Senior Indebtedness so
that the terms and conditions thereof are less favorable to the Administrative
Agent and the Lenders than the terms and conditions of the relevant Material
Senior Indebtedness as of the Closing Date.


 


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ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


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


 


(a)                                  Non-Payment.  The Borrower or any other Loan Party fails
to pay (i) when and as required to be paid herein, any amount of principal of
any Loan or any L/C Obligation, or (ii) within five days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any Commitment Fee
or other fee due hereunder, or (iii) within five days after the same becomes
due, any other amount payable hereunder or under any other Loan Document; or


 


(b)                                 Specific
Covenants.  The Borrower fails to
perform or observe any term, covenant or agreement contained in any of Section 6.01,
6.02(b) through (f), 6.03(a), (b) or (c), 6.05,
6.10, 6.11 or 6.13 or Article VII; or


 


(c)                                  Other
Defaults.  Any Loan Party fails to
perform or observe any other covenant or agreement (not specified in
subsection (a) or (b) above) contained in any Loan Document on its part to
be performed or observed and such failure continues for 30 days; or


 


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


 


(e)                                  Cross-Default.  (i) The Borrower or any Subsidiary (A) fails
to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of (x) any
Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than the Threshold
Amount, or (y) any of the Material Senior Indebtedness (collectively, the
Indebtedness and Guarantees described in (x) and (y) are referred to as the “Cross
Default Indebtedness”), or (B) fails to observe or perform any other
agreement or condition relating to any such Cross Default Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event
is to cause, or to permit the holder or holders (or beneficiary or
beneficiaries in the case of a Guarantee) of any such Cross Default
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Cross Default Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Cross Default Indebtedness
to be made, prior to its stated maturity, or such Guarantee to become payable
or cash collateral in respect thereof to be demanded; or (ii) there occurs
under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract as
to which the Borrower or any Subsidiary is the Defaulting Party (as defined in
such Swap Contract) or (B) any Termination Event (as so defined) under such
Swap Contract as to which the Borrower or any Subsidiary is an Affected Party
(as so defined) and, in either event, the Swap Termination Value owed by the
Borrower or such Subsidiary as a result thereof is greater than the Threshold
Amount; or


 


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(f)                                    Insolvency
Proceedings, Etc.  Any Loan Party or
any of its Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
is appointed without the application or consent of such Person and the
appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or
any material part of its property is instituted without the consent of such
Person and continues undismissed or unstayed for 60 calendar days, or an order
for relief is entered in any such proceeding; or


 


(g)                                 Inability
to Pay Debts; Attachment.  (i) The
Borrower or any Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or
warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is not
released, vacated or fully bonded within 30 days after its issue or levy; or


 


(h)                                 Judgments.  There is entered against the Borrower or any
Subsidiary (i) a final judgment or order for the payment of money in an aggregate
amount exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings are
appropriately commenced by any creditor upon such judgment or order, or (B)
there is a period of 10 consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect; or


 


(i)                                     ERISA.  (i) An ERISA Event occurs with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess
of the Threshold Amount, (ii) the Borrower or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of
ERISA under a Multiemployer Plan in an aggregate amount in excess of the
Threshold Amount, or (iii) the aggregate amount of Unfunded Pension Liabilities
among all Pension Plans at any time exceeds $100,000,000; or


 


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


 


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(k)                                  Change
of Control.  Frank McCourt ceases
both (a) to actively manage and control the day to day operations of the Borrower
and [Holdco], and (b) to own not less than 25% of the


 


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


 


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


 


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


 


(c)                                  require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof) plus the Letter of Credit fees payable
with respect to such Letter of Credit (calculated at the Applicable Rate then
in effect for the period from the date of such cash collateralization until the
expiry date of such Letter of Credit); and


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Sixth, to payment of
Swap Termination Values owing to any Lender or any Affiliate of any Lender
arising under Related Swap Contracts that shall have been terminated and as to
which the Administrative Agent shall have received notice of such termination
and the Swap Termination Value thereof from the applicable Lender or Affiliate
of a Lender;


 


Seventh, to the
payment of all other Obligations of the Loan Parties owing under or in respect
of the Loan Document that are due and payable to the Administrative Agent and
the Lenders, or any of them, on such date, ratably based on the respective
aggregate amounts of all such Obligations owing to the Administrative Agent and
the Lenders on such date; and


 


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


 


Subject to Section 2.04(c), amounts used to Cash
Collateralize the aggregate undrawn amount of Letters of Credit pursuant to
clause Fifth above shall be applied to satisfy drawings under such
Letters of Credit as they occur.  If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.


 


ARTICLE IX.

ADMINISTRATIVE AGENT


 


9.01                        Appointment and Authorization of
Administrative Agent.


 


(a)                                  Each
Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document, including the execution and
delivery of each of the Loan Documents as applicable, and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. 
Notwithstanding any provision to the contrary contained elsewhere herein
or in any other Loan Document, the Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth herein, nor shall
the Administrative Agent have or be deemed to have any fiduciary relationship
with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities 


 


77

















 


shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.  Without limiting the generality of the foregoing sentence, the
use of the term “agent” herein and in the other Loan Documents with reference
to the Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable Law.  Instead, such term is
used merely as a matter of market custom, and is intended to create or reflect
only an administrative relationship between independent contracting parties.


 


(b)                                 The
L/C Issuer shall act on behalf of the Revolving Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the
L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article IX with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and the applications and
agreements for letters of credit pertaining to such Letters of Credit as fully
as if the term “Administrative Agent” as used in this Article IX
and in the definition of “Agent-Related Person” included the L/C Issuer with
respect to such acts or omissions, and (ii) as additionally provided herein
with respect to the L/C Issuer.


 


9.02                        Delegation
of Duties.  The
Administrative Agent may execute any of its duties under this Agreement or any
other Loan Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties.  The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in
the absence of gross negligence or willful misconduct.


 


9.03                        Liability of Administrative Agent.  No Agent-Related Person shall (a) be liable
for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
for any failure of any Loan Party or any other party to any Loan Document to
perform its obligations hereunder or thereunder.  No Agent-Related Person shall be under any obligation to any
Lender or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party or any Affiliate thereof.


 


9.04                        Reliance by Administrative Agent.


 


(a)                                  The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct 


 


78

















 


and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Loan
Party), independent accountants and other experts selected by the Administrative
Agent.  The Administrative Agent shall
be fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action.  The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Required Lenders (or such greater number of Lenders
as may be expressly required hereby in any instance) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders.


 


(b)                                 For
purposes of determining compliance with the conditions specified in Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


9.05                        Notice of Default.  The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent
for the account of the Lenders, unless the Administrative Agent shall have
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default and stating that such notice is a “notice of
default.”  The Administrative Agent will
notify the Lenders of its receipt of any such notice.  The Administrative Agent shall take such action with respect to
such Default as may be directed by the Required Lenders in accordance with Article VIII;
provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable or in the best interest of
the Lenders.


 


9.06                        Credit Decision; Disclosure of
Information by Administrative Agent. 
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession.  Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan
Parties and their respective Subsidiaries, and all applicable bank or other
regulatory Laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower
hereunder.  Each Lender also represents
that it will, independently and without reliance upon any Agent-Related 


 


79

















 


Person and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrower and the other Loan Parties.  Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Loan Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.


 


9.07                        Indemnification of Administrative Agent.  Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand each
Agent-Related Person (to the extent not reimbursed by or on behalf of any Loan
Party and without limiting the obligation of any Loan Party to do so), pro
rata, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that
no Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person’s own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. 
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower.  The undertaking in this
Section shall survive termination of the Aggregate Commitments, the
payment of all other Obligations and the resignation of the Administrative
Agent.


 


9.08                        Administrative Agent in its Individual
Capacity.  Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
each of the Loan Parties and their respective Affiliates as though Bank of
America were not the Administrative Agent or the L/C Issuer hereunder and
without notice to or consent of the Lenders. 
The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding any Loan Party or
its Affiliates (including information that may be subject to confidentiality
obligations in favor of such Loan Party or such Affiliate) and acknowledge that
the Administrative Agent shall be under no obligation to provide such information
to them.  With respect to its Loans,
Bank of America shall have the same rights and powers under this Agreement as
any other Lender and may exercise such rights and powers as though it were not
the Administrative Agent or the L/C Issuer, and the terms “Lender” and
“Lenders” include Bank of America in its individual capacity.


 


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9.09                        Successor Administrative Agent.  The Administrative Agent may resign as
Administrative Agent upon 30 days’ notice to the Lenders; provided that
any such resignation by Bank of America shall also constitute its resignation
as L/C Issuer and Swing Line Lender.  If
the Administrative Agent resigns under this Agreement, the Required Lenders
shall appoint from among the Lenders a successor administrative agent for the
Lenders, which successor administrative agent shall be consented to by the
Borrower at all times other than during the existence of an Event of Default
(which consent of the Borrower shall not be unreasonably withheld or
delayed).  If no successor
administrative agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Borrower, a successor administrative
agent from among the Lenders.  Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent, L/C Issuer and
Swing Line Lender and the respective terms “Administrative Agent,” “L/C Issuer”
and “Swing Line Lender” shall mean such successor administrative agent, Letter
of Credit issuer and swing line lender, the retiring Administrative Agent’s appointment,
powers and duties as Administrative Agent shall be terminated and the retiring
L/C Issuer’s and Swing Line Lender’s rights, powers and duties as such shall be
terminated, without any other or further act or deed on the part of such
retiring L/C Issuer or Swing Line Lender or any other Lender, other than the
obligation of the successor L/C Issuer to issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or to make other arrangements satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit. 
After any retiring Administrative Agent’s resignation hereunder as Administrative
Agent, the provisions of this Article IX and Sections 10.04
and 10.05 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.  If no successor administrative agent has
accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.


 


9.10                        Administrative Agent May File Proofs of
Claim.  In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise


 


(a)                                  to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders and
the Administrative Agent under Sections 2.04(i) and (j), 2.10
and 10.04) allowed in such judicial proceeding; and


 


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


 


and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any
other amounts due the Administrative Agent under Sections 2.10 and 10.04.


 


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


 


9.11                        Guaranty Matters.  The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any
Guarantor from its obligations under the Guaranty if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder.  Upon request by the Administrative Agent at
any time, the Required Lenders will confirm in writing the Administrative
Agent’s authority to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 9.11.


 


9.12                        Other Agents; Arrangers and Managers.  None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a
“syndication agent,” “documentation agent,” “co-agent,” “book manager,” “lead
manager,” “arranger,” “lead arranger” or “co-arranger” shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than, in the case of such Lenders, those applicable to all Lenders as
such.  Without limiting the foregoing,
none of the Lenders or other Persons so identified shall have or be deemed to
have any fiduciary relationship with any Lender.  Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or other Persons so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.


 


ARTICLE X.

MISCELLANEOUS


 


10.01                 Amendments, Etc.  No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
the Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders (or, in the case of the Intercreditor
Agreement, by the Administrative Agent with the written consent of the Required
Lenders) and the Borrower or the applicable Loan Party (or, in the case of the
Intercreditor Agreement, by the other parties required to be party thereto
pursuant to the terms thereof), as the case may be, and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided,
however, that no such amendment, waiver or consent:


 


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(a)                                  shall
waive any condition set forth in Section 4.01(a) without the
written consent of each Lender except to the extent otherwise provided for in Section 4.01(a);


 


(b)                                 shall
extend or increase (i) the Revolving Credit Commitment (or reinstate any
Revolving Credit Commitment terminated pursuant to Section 2.07 or 8.02)
of any Revolving Lender without the written consent of such Revolving Lender,
or (ii) the Pro Rata Term A Share (measured in Dollars) of the Outstanding
Amount of the Term Loan A of any Term Loan A Lender without the written consent
of such Term Loan A Lender;


 


(c)                                  shall
waive or postpone any date fixed by this Agreement or any other Loan Document
for any payment (but excluding mandatory prepayments, if any, which will only
require the vote of Required Lenders) of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;


 


(d)                                 shall
reduce the principal of, or the rate of interest specified herein on, any Loan
or L/C Borrowing, or (subject to clause (v) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be
necessary (i) to amend the definition of “Default Rate” or to waive any
obligation of the Borrower to pay interest at the Default Rate or (ii) to amend
any financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
L/C Borrowing or to reduce any fee payable hereunder;


 


(e)                                  shall
change Section 2.14 or Section 8.03 in a manner that
would alter the pro rata sharing of payments required thereby without the
written consent of each Lender directly affected thereby;


 


(f)                                    shall
change any provision of this Section 10.01, the definition of any
of “Required Lenders,” “Required Revolving Lenders” or “Required Term Loan A
Lenders,” or any other provision hereof, in each case to the extent such change
would alter the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender directly affected
thereby;


 


(g)                                 which
has the effect of enabling the Borrower to satisfy any condition to a Borrowing
contained in Section 4.02 hereof which, but for such amendment,
waiver or consent would not otherwise be satisfied, shall be effective to
require the Revolving Lenders, the Swing Line Lender or any L/C Issuer to make
any additional Revolving Loan or Swing Line Loan, or to issue any additional or
renew any existing Letter of Credit, unless and until the Required Revolving
Lenders shall consent thereto;


 


(h)                                 shall
release all or substantially all of the Guarantors from the Guaranty without
the written consent of each Lender, except to the extent such Person ceases to
be a Subsidiary as a result of a transaction permitted hereunder, in which case
such release may be made by the Administrative Agent acting alone as provided
in Section 9.11;


 


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and, provided  further, that (i) no amendment, waiver or
consent shall, unless in writing and signed by the L/C Issuer in addition to
the Lenders required under this Section 10.01, affect the rights or
duties of the L/C Issuer under this Agreement or any Letter of Credit
Application relating to any Letter of Credit issued or to be issued by it; (ii)
no amendment, waiver or consent shall, unless in writing and signed by the
Swing Line Lender in addition to the Lenders required under this Section 10.01,
affect the rights or duties of the Swing Line Lender under this Agreement;
(iii) no amendment, waiver or consent shall, unless in writing and signed by
the Administrative Agent in addition to the Lenders required under this Section 10.01,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; (iv) Section 10.07(h) may not be amended,
waived or otherwise modified without the consent of each Granting Lender all or
any part of whose Loans are being funded by an SPC at the time of such
amendment, waiver or other modification; (v) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the
parties thereto; and (vi) notwithstanding subsections (e) and (f) above, Sections
2.14, 8.03, 10.01 and the definitions of “Required Lenders,”
“Required Revolving Lenders” and “Required Term Loan A Lenders,” and other
related provisions, may be changed in connection with, and to the extent
necessary to accommodate comparable voting and other rights of the existing
Lenders with respect to, the addition of a new facility or tranche under this
Agreement by a vote of the Required Lenders, and such new facility or tranche
may be guaranteed by the Guarantors by a vote of the Required Lenders
notwithstanding subsection (h) above. 
Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that (A) the Revolving Credit Commitment of any such
Revolving Lender may not be increased or extended without the consent of such
Revolving Lender, and (B) the Pro Rata Term A Share (measured in Dollars) of
the Outstanding Amount of the Term Loan A of any such Term A Lender may not be
increased without the consent of such Term A Lender.


 


10.02                 Notices
and Other Communications; Facsimile Copies.


 


(a)                                  General.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). 
All such written notices shall be mailed, faxed or delivered to the
applicable address, facsimile number or (subject to subsection (c) below)
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:


 


(i)                                     if
to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, facsimile number, electronic mail address or telephone
number specified for such Person on Schedule 10.02 or to such other
address, facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties; and


 


(ii)                                  if
to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such
other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.


 


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All such notices and other communications shall be deemed to be given
or made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; provided, however,
that notices and other communications to the Administrative Agent, the L/C
Issuer and the Swing Line Lender pursuant to Article II shall not
be effective until actually received by such Person.  In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.


 


(b)                                 Effectiveness
of Facsimile Documents and Signatures. 
Loan Documents may be transmitted and/or signed by facsimile.  The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force and effect as
manually-signed originals and shall be binding on all Loan Parties, the
Administrative Agent and the Lenders.  The Administrative Agent may also require that any such documents
and signatures be confirmed by a manually-signed original thereof; provided,
however, that the failure to request or deliver the same shall not limit
the effectiveness of any facsimile document or signature.


 


(c)                                  Limited
Use of Electronic Mail.  Electronic
mail and Internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as provided
in Section 6.02, and to distribute Loan Documents for execution by
the parties thereto, and may not be used for any other purpose.


 


(d)                                 Reliance
by Administrative Agent and Lenders. 
The Administrative Agent and the Lenders shall be entitled to rely and
act upon any notices (including telephonic Revolving Loan Notices, Term Loan
Interest Rate Selection Notices and Swing Line Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof.  The Borrower shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower.  All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.


 


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


 


10.04                 Attorney Costs, Expenses and Taxes.  The Borrower agrees (a) to pay or reimburse
the Administrative Agent for all reasonable costs and expenses incurred in
connection with the development, preparation, negotiation and execution of this
Agreement and the other 


 


85

















 


Loan Documents and any amendment, waiver, consent or other modification
of the provisions hereof and thereof (whether or not the transactions
contemplated hereby or thereby are consummated), and the consummation and
administration of the transactions contemplated hereby and thereby, including
all Attorney Costs, and (b) to pay or reimburse the Administrative Agent and
each Lender for all costs and expenses incurred in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or the other Loan Documents (including all such costs and
expenses incurred during any “workout” or restructuring in respect of the
Obligations and during any legal proceeding, including any proceeding under any
Debtor Relief Law), including all Attorney Costs.  The foregoing costs and expenses shall include all search,
filing, recording, title insurance and appraisal charges and fees and taxes
related thereto, and other out-of-pocket expenses incurred by the Administrative
Agent and the cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender.  All amounts due under this Section 10.04 shall be
payable within ten Business Days after demand therefor.  The agreements in this Section shall
survive the termination of the Aggregate Commitments and repayment of all other
Obligations.


 


10.05                 Indemnification by the Borrower.  Whether or not the transactions contemplated
hereby are consummated, the Borrower shall indemnify and hold harmless each
Agent-Related Person, each Lender and their respective Affiliates, directors,
officers, employees, counsel, agents and attorneys-in-fact (collectively the “Indemnitees”)
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including Attorney Costs) of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against any such
Indemnitee, in each case involving any demand made upon or claim asserted
against such Indemnitee arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
(a) the execution, delivery, enforcement, performance or administration of any
Loan Document, Transaction Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby
or the consummation of the transactions contemplated thereby, (b) any Revolving
Credit Commitment, Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), including any proposed use or use to consummate the Merger or to repay
any indebtedness in connection with the Merger (including without limitation
any Indebtedness under the Existing Borrower Credit Agreement or the Existing
Acquired Company Credit Agreement), (c) any actual or alleged presence or
release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Borrower, any Subsidiary or any other Loan Party, or
any Environmental Liability related in any way to the Borrower, any Subsidiary
or any other Loan Party, or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation
or proceeding) and regardless of whether any Indemnitee is a party thereto (all
the foregoing, collectively, the “Indemnified Liabilities”); provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or 


 


86

















 


willful misconduct of such Indemnitee. 
No Indemnitee shall be liable for any damages arising from the use by
others of any information or other materials obtained through IntraLinks or
other similar information transmission systems in connection with this
Agreement, nor shall any Indemnitee have any liability for any indirect or
consequential damages relating to this Agreement or any other Loan Document or
arising out of its activities in connection herewith or therewith (whether
before or after the Closing Date).  All
amounts due under this Section 10.05 shall be payable within ten
Business Days after demand therefor. 
The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.


 


10.06                 Payments Set Aside.  To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent or any Lender, or
the Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or
repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect.


 


10.07                 Successors and Assigns.


 


(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 the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each
Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation
in accordance with the provisions of subsection (d) of this Section, (iii)
by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) or (i) of this Section, or (iv) to an SPC
in accordance with the provisions of subsection (h) of this
Section (and any other attempted assignment or transfer by any party
hereto shall be null and void).  Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of
this Section and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason
of this Agreement.


 


(b)                                 Any
Lender may at any time assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Revolving Credit Commitment and the Revolving Loans (including
for purposes of this subsection (b), participations in L/C Obligations and
in Swing Line Loans) at the time owing to it, or of its Pro Rata Term A Share
of the Term Loan A at the time owing to it (such Lender’s 


 


87

















 


portion of Loans, commitments and risk participations with respect to
each of the Revolving Credit Facility and the Term Loan A Facility (each, an “Applicable
Facility”) being referred to in this Section 10.07 as its “Applicable
Share”); provided that (i) except in the case of an assignment of
the entire remaining amount of the assigning Lender’s Applicable Share of the
Applicable Facility or in the case of an assignment to a Lender or an Affiliate
of a Lender or an Approved Fund with respect to a Lender, the aggregate amount
of the Applicable Share with respect to each Applicable Facility subject to
each such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date) shall not be less than (A) $5,000,000 with respect to the Revolving
Credit Facility and (B) $1,000,000 with respect to the Term Loan A Facility,
unless in either case each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); (ii) each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with
respect to the Applicable Facility, except that this clause (ii) shall not (x)
apply to rights in respect of Swing Line Loans or (y) prohibit any Lender from
assigning all or a portion of its rights and obligations among the Applicable
Facilities on a non-pro rata basis; (iii) any assignment of a Revolving Credit
Commitment must be approved by the Administrative Agent, the L/C Issuer and the
Swing Line Lender unless the Person that is the proposed assignee is itself a
Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500. 
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Revolving Lender or Term Loan A Lender, as applicable, under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05,
10.04 and 10.05 with respect to facts and circumstances occurring
prior to the effective date of such assignment).  Upon request, the Borrower (at its expense) shall execute and
deliver applicable Notes to the assignee Lender, and any assigning Lender that
shall cease to be a Lender as a result of such assignment shall return its
Notes to the Borrower, if any.  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.


 


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


 


88

















 


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 Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.


 


(d)                                 Any
Lender may at any time, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Agreement (including all or a
portion of its Revolving Credit Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to
it); provided that (i) such Lender’s obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. 
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any  provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 10.01 that
directly affects such Participant. 
Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section and
shall likewise be subject to the provisions of Sections 3.01(e), 3.01(f)
and 3.06(b).  To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.09
as though it were a Lender, provided such Participant agrees to be
subject to Section 2.14 as though it were a Lender.


 


(e)                                  A
Participant shall not be entitled to receive any greater payment under Section 3.01
or 3.04 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 10.15
as though it were a Lender.


 


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


 


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(g)                                 As
used herein, the following terms have the following meanings:


 


“Eligible Assignee”
means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d)
any other Person (other than a natural person) approved by (i) the
Administrative Agent, the L/C Issuer (only with respect to assignments of the
Revolving Credit Facility) and the Swing Line Lender (only with respect to
assignments of the Revolving Credit Facility), and (ii) unless an Event of
Default has occurred and is continuing, the Borrower (each such approval not to
be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries.


 


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


 


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


 


(h)                                 Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the
Borrower (an “SPC”) the option to provide all or any part of any Loan
that such Granting Lender would otherwise be obligated to make pursuant to this
Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to
exercise such option or otherwise fails to make all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof.  Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrower under this Agreement (including its obligations
under Article III), (ii) no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement for which a Lender would be
liable, and (iii) the Granting Lender shall for all purposes, including the
approval of any amendment, waiver or other modification of any provision of any
Loan Document, remain the Lender of record hereunder.


 


The making of a Revolving Loan by an SPC hereunder shall utilize the
Revolving Credit Commitment of the Granting Lender to the same extent, and as
if, such Revolving Loan were made by such Granting Lender.  In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior debt of any
SPC, it will not institute against, or join any other Person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State
thereof.  Notwithstanding anything to
the contrary contained herein, any SPC may (i) with notice to, but without
prior consent of the Borrower and the Administrative Agent and with the payment
of a processing fee of $1,000, assign all or any portion of its right to
receive payment with respect to any Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of
any surety or Guarantee or credit or liquidity enhancement to such SPC.


 


90

















 


(i)                                     Notwithstanding
anything to the contrary contained herein, any Lender that is a Fund may create
a security interest in all or any portion of the Loans owing to it and the Note
or Notes, if any, held by it to the trustee for holders of obligations owed, or
securities issued, by such Fund as security for such obligations or securities,
provided that unless and until such trustee actually becomes a Lender in
compliance with the other provisions of this Section 10.07, (i) no
such pledge shall release the pledging Lender from any of its obligations under
the Loan Documents and (ii) such trustee shall not be entitled to exercise any
of the rights of a Lender under the Loan Documents even though such trustee may
have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.


 


(j)                                     Notwithstanding
anything to the contrary contained herein, if at any time Bank of America
assigns all of its Revolving Credit Commitment and Loans (including its pro
rata share of the Term Loan A, if any) and its participations in the L/C
Obligations or any L/C Borrowing pursuant to subsection (b) above, Bank of
America may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign
as L/C Issuer and/or (ii) upon five Business Days’ notice to the Borrower,
resign as Swing Line Lender.  In the
event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower
shall be entitled to appoint from among the Lenders a successor L/C Issuer or
Swing Line Lender hereunder; provided, however, that no failure
by the Borrower to appoint any such successor shall affect the resignation of
Bank of America as L/C Issuer or Swing Line Lender, as the case may be.  If Bank of America resigns as L/C Issuer, it
shall retain all the rights and obligations of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Swing Line Lender to make Swing Line Loans
or the Revolving Lenders to make Revolving Loans or fund participations in the
manner set forth in Section 2.04(c)).  If Bank of America resigns as Swing Line Lender, it shall retain
all the rights of the Swing Line Lender provided for hereunder with respect to
Swing Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Revolving Lenders to make Base
Rate Revolving Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.05(c).


 


10.08                 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 and its Affiliates’
directors, officers, employees and agents, 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 regulatory authority (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent  required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies hereunder or
under or any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Documents or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, (g) with the consent of the Borrower, or (h) to the extent
such Information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes 


 


91

















 


available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower; provided
that with respect to any disclosure under clause (b) or (c) of this sentence,
the Administrative Agent or the relevant Lender, as applicable, shall use
commercially reasonable efforts to notify the Borrower (unless such
notification is prohibited by any applicable Law) of the proposed disclosure
before such disclosure is made to reasonably afford the Borrower the
opportunity to seek to prevent such disclosure.  For the purposes of this Section, “Information” means all
information received from any Loan Party relating to any Loan Party or any of
their respective businesses, other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by any Loan Party, provided that, in the case of information
received from a Loan Party after the date hereof, such information is clearly
identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information. 
Notwithstanding anything herein to the contrary, “Information” shall not
include, and the Borrower, the Administrative Agent and each Lender may
disclose without limitation of any kind, any information with respect to the
“tax treatment” and “tax structure” (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions contemplated
hereby) and all materials of any kind (including opinions or other tax
analyses) that are provided to the Borrower, the Administrative Agent or such
Lender relating to such tax treatment and tax structure; provided that with
respect to any document or similar item that in either case contains
information concerning the tax treatment or tax structure of the transaction as
well as other information, this sentence shall only apply to such portions of
the document or similar item that relate to the tax treatment or tax structure
of the Loans, Letters of Credit and transactions contemplated hereby.  In addition, the Administrative Agent may
disclose to any agency or organization that assigns standard identification
numbers to loan facilities such basic information describing the facilities
provided hereunder as is necessary to assign unique identifiers (and, if
requested, supply a copy of this Agreement), it being understood that the
Person to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to make available to the public only
such Information as such person normally makes available in the course of its
business of assigning identification numbers.


 


10.09                 Set-off.  In addition to any rights and remedies of
the Lenders provided by law, upon the occurrence and during the continuance of
any Event of Default, each Lender is authorized at any time and from time to
time, without prior notice to the Borrower or any other Loan Party, any such
notice being waived by the Borrower (on its own behalf and on behalf of each
Loan Party) 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 by, and other indebtedness at any time owing by, such Lender to
or for the credit or the account of the respective Loan Parties against any and
all Obligations owing to such Lender hereunder or under any other Loan
Document, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable
deposit or indebtedness.  Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such 


 


92

















 


set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application.


 


10.10                 Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by applicable
Law (the “Maximum Rate”).  If the
Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the
Borrower.  In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.


 


10.11                 Counterparts.  This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


10.12                 Integration.  This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter. 
In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall
control; provided that the inclusion of supplemental rights or remedies
in favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement.  Each Loan Document was drafted with the joint participation of
the respective parties thereto and shall be construed neither against nor in
favor of any party, but rather in accordance with the fair meaning thereof.


 


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


 


10.14                 Severability.  If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions. 
The 


 


93

















 


invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.


 


10.15                 Tax Forms.


 


(a)                                  (i)                                     Each
Lender that is not a “United States person” within the meaning of
Section 7701(a)(30) of the Code (a “Foreign Lender”) shall deliver
to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or upon accepting an assignment of an interest
herein), two duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Foreign Lender and entitling it to an
exemption from, or reduction of, withholding tax on all payments to be made to
such Foreign Lender by the Borrower pursuant to this Agreement) or IRS Form
W-8ECI or any successor thereto (relating to all payments to be made to such
Foreign Lender by the Borrower pursuant to this Agreement) or such other
evidence satisfactory to the Borrower and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the
Code.  Each such form shall include, if
required by the form or otherwise necessary to obtain the benefits being
claimed, a U.S. taxpayer identification number for the applicable Foreign
Lender.  Thereafter and from time to
time, each such Foreign Lender shall (A) promptly submit to the Administrative
Agent such additional duly completed and signed copies of one of such forms (or
such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect of
all payments to be made to such Foreign Lender by the Borrower pursuant to this
Agreement, (B) promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction, and (C) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.


 


(ii)                                  Each
Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender
under any of the Loan Documents (for example, in the case of a typical
participation by such Lender), shall deliver to the Administrative Agent on the
date when such Foreign Lender ceases to act for its own account with respect to
any portion of any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the reasonable
exercise of its discretion), (A) two duly signed completed copies of the forms
or statements required to be provided by such Lender as set forth above, to
establish the portion of any such sums paid or payable with respect to which
such Lender acts for its own account that is not subject to U.S. withholding
tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any
successor thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish 


 


94

















 


that such Lender is not
acting for its own account with respect to a portion of any such sums payable
to such Lender.


 


(iii)                               The
Borrower shall not be required to pay any additional amount to any Foreign
Lender under Section 3.01 (A) with respect to any Taxes required to
be deducted or withheld on the basis of the information, certificates or
statements of exemption such Lender transmits with an IRS Form W-8IMY pursuant
to this Section 10.15(a) or (B) if such Lender shall have failed to
satisfy the foregoing provisions of this Section 10.15(a); provided
that if such Lender shall have satisfied the requirement of this Section 10.15(a)
on the date such Lender became a Lender or ceased to act for its own account
with respect to any payment under any of the Loan Documents, nothing in this Section 10.15(a)
shall relieve the Borrower of its obligation to pay any amounts pursuant to Section 3.01
in the event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate.


 


(iv)                              The
Administrative Agent may, without reduction, withhold any Taxes required to be
deducted and withheld from any payment under any of the Loan Documents with
respect to which the Borrower is not required to pay additional amounts under
this Section 10.15(a).


 


(b)                                 Upon
the request of the Administrative Agent, each Lender that is a “United States
person” within the meaning of Section 7701(a)(30) of the Code shall
deliver to the Administrative Agent two duly signed completed copies of IRS
Form W-9.  If such Lender fails to
deliver such forms, then the Administrative Agent may withhold from any
interest payment to such Lender an amount equivalent to the applicable back-up
withholding tax imposed by the Code, without reduction.


 


(c)                                  If
any Governmental Authority asserts that the Administrative Agent did not
properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including Attorney
Costs) of the Administrative Agent.  The
obligation of the Lenders under this Section shall survive the termination
of the Aggregate Commitments, repayment of all other Obligations hereunder and
the resignation of the Administrative Agent.


 


10.16                 Governing Law.


 


(a)                                  THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE;


 


95

















 


PROVIDED THAT THE ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


 


(b)                                 ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE
COUNTY OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH
STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.  THE BORROWER, THE ADMINISTRATIVE AGENT AND
EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING
OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. 
THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.


 


10.17                 Waiver
of Right to Trial by Jury. 
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


10.18                 USA Patriot Act Notice.  Each
Lender and the Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrower that, pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address
of the Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower in accordance
with the Act.


 


[Signature pages follow.]


 


96

















 


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


 


	
   

  	
  PRECISION CASTPARTS CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Geoffrey A. Hawkes

  	
   

  
	
   

  	
  Name:

  	
  Geoffrey A. Hawkes

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
					



 


Precision Castparts Credit Agreement


 


S-1

















 


	
   

  	
  BANK OF AMERICA, N.A.,
  as Administrative

  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth J. Beck

  	
   

  
	
   

  	
  Name:

  	
  Kenneth J. Beck

  	
   

  
	
   

  	
  Title:

  	
  Principal

  	
   

  
					



 


S-2

















 


	
   

  	
  BANK OF AMERICA, N.A.,
  as a Lender, L/C

  Issuer and Swing Line Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth J. Beck

  	
   

  
	
   

  	
  Name:

  	
  Kenneth J. Beck

  	
   

  
	
   

  	
  Title:

  	
  Principal

  	
   

  
					



 


S-3

















 


	
   

  	
  KEYBANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W. Robert Perkins

  	
   

  
	
   

  	
  Name:

  	
  W. Robert Perkins

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-4

















 


	
   

  	
  MIZUHO CORPORATE BANK, LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bertram H. Tang

  	
   

  
	
   

  	
  Name:

  	
  Bertram H. Tang

  	
   

  
	
   

  	
  Title:

  	
  Vice President & Team Leader

  	
   

  
					



 


S-5

















 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert J. Giannone

  	
   

  
	
   

  	
  Name:

  	
  Robert J. Giannone

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-6

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Janice T. Thede

  	
   

  
	
   

  	
  Name:

  	
  Janice T. Thede

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-7

















 


	
   

  	
  WACHOVIA BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicholas A.J. Hahn

  	
   

  
	
   

  	
  Name:

  	
  Nicholas A.J. Hahn

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-8

















 


	
   

  	
  THE BANK OF NOVA SCOTIA

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Patrik G. Norris

  	
   

  
	
   

  	
  Name:

  	
  Patrik G. Norris

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
					



 


S-9

















 


	
   

  	
  FLEET NATIONAL BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth S. Struglia

  	
   

  
	
   

  	
  Name:

  	
  Kenneth S. Struglia

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
					



 


S-10

















 


	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Besser

  	
   

  
	
   

  	
  Name:

  	
  Robert Besser

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-11

















 


	
   

  	
  WELLS FARGO BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven J. Anderson

  	
   

  
	
   

  	
  Name:

  	
  Steven J. Anderson

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
					



 


S-12

















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Maria Amaral-LeBlanc

  	
   

  
	
   

  	
  Name:

  	
  Maria Amaral-LeBlanc

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
					



 


S-13

















 


	
   

  	
  BNP PARIBAS

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ C. Betties

  	
   

  
	
   

  	
  Name:

  	
  C. Betties

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tjalling Terpstra

  	
   

  
	
   

  	
  Name:

  	
  Tjalling Terpstra

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
					



 


S-14

















 


	
   

  	
  SUMITOMO MITSUI BANKING CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Al Galluzzo

  	
   

  
	
   

  	
  Name:

  	
  Al Galluzzo

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
					



 


S-15

















 


	
   

  	
  UNION BANK OF CALIFORNIA, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas Marks

  	
   

  
	
   

  	
  Name:

  	
  Thomas Marks

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-16

















 


	
   

  	
  KBC BANK, N.V.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Snauffer

  	
   

  
	
   

  	
  Name:

  	
  Robert Snauffer

  	
   

  
	
   

  	
  Title:

  	
  First Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric Raskin

  	
   

  
	
   

  	
  Name:

  	
  Eric Raskin

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-17

















 


	
   

  	
  COMERICA BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elise Walker

  	
   

  
	
   

  	
  Name:

  	
  Elise Walker

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-18

















 


	
   

  	
  UFJ BANK LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Toshiko Boyd

  	
   

  
	
   

  	
  Name:

  	
  Toshiko Boyd

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-19

















 


	
   

  	
  WASHINGTON MUTUAL BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard J. Ameny, Jr.

  	
   

  
	
   

  	
  Name:

  	
  Richard J. Ameny, Jr.

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-20

















 


	
   

  	
  BANCA NAZIONALE DEL LAVORO S.P.A.

  NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Juan J. Cortes

  	
   

  
	
   

  	
  Name:

  	
  Juan J. Cortes

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Francesco Di Mario

  	
   

  
	
   

  	
  Name:

  	
  Francesco Di Mario

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


S-21