exv10w2



 






Exhibit 10.2




[CONFORMED AS EXECUTED]




	 	 	 
	 

	 	 
	 





CREDIT AGREEMENT




among




AMETEK, INC.,




VARIOUS LENDING INSTITUTIONS,




BANK OF AMERICA, N.A.,

PNC BANK NATIONAL ASSOCIATION,

SUNTRUST BANK AND

WACHOVIA BANK, N.A.,

AS SYNDICATION AGENTS,




and




JPMORGAN CHASE BANK, N.A.,

AS ADMINISTRATIVE AGENT



 




Dated as of September 17, 2001




and




amended and restated as of June 17, 2005



 




$300,000,000




J.P. MORGAN SECURITIES INC.,




AS LEAD ARRANGER AND BOOKRUNNER




	 	 	 
	 

	 	 
	 





 









 






          CREDIT
AGREEMENT, dated as of September 17, 2001 and amended and restated as of June
17, 2005, among AMETEK, INC., a Delaware corporation (the
“Borrower”), the lending
institutions listed from time to time on Schedule I hereto (each a “Bank” and,
collectively, the “Banks”), Bank of America, N.A, PNC Bank, National Association, SunTrust Bank
and Wachovia Bank, N.A., as syndication agents (each a “Syndication Agent” and,
collectively, the “Syndication Agents”), and JPMorgan Chase Bank, N.A. (“JPMorgan
Chase”) (formerly known as The Chase Manhattan Bank), as administrative agent (in such
capacity, and together with its successors in such capacity, the “Administrative Agent”)
for the Banks. Unless otherwise defined herein, all capitalized terms used herein and defined in
Section 10 are used herein as so defined.




W
I T N E S S E
T H:




          WHEREAS, the Borrower, the Existing Banks and JPMorgan Chase, as Administrative Agent, are
parties to a Credit Agreement, dated as of September 17, 2001 (as the same has been amended,
modified or supplemented to, but not including, the Restatement Effective Date, the “Existing
Credit Agreement”); and




          WHEREAS, the parties hereto wish to amend and restate the Existing Credit Agreement in its
entirety in the form of this Agreement, subject to and on the terms and conditions set forth
herein, and the Banks are willing to make available to the Borrower the credit facility provided
herein;




          NOW, THEREFORE, the Borrower, the Banks and the Administrative Agent agree that, on the
Restatement Effective Date, the Existing Credit Agreement shall be and is hereby amended and
restated in its entirety as follows:




          SECTION 1. Amount and Terms of Credit.




          1.01
Commitments. (a) Subject to and upon the terms and conditions herein set forth,
each Bank severally agrees, at any time and from time to time on and after the Restatement.
Effective Date and prior to the Final Maturity Date, to make a loan or loans (each, a
“Revolving Loan” and, collectively, the “Revolving Loans”) to the Borrower, which Revolving
Loans (i) except as hereinafter provided, may, at the option of the Borrower, be incurred and
maintained as, and/or converted into Base Rate Loans or Eurodollar Loans, provided that
all Revolving Loans made by all Banks pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Revolving Loans of the same Type, (ii) may be
repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate
principal amount for any Bank at any time outstanding the amount which, when combined with such
Bank’s Percentage of the sum of (A) the Letter of Credit Outstandings at such time plus (B)
the aggregate outstanding principal amount of all Competitive Bid Loans then outstanding, equals
the Commitment of such Bank at such time, (iv) shall not exceed in aggregate principal amount for
all Banks at any time outstanding the amount which, when added to the sum of (A) the aggregate
amount of Letter of Credit Outstandings at such time plus (B) the aggregate outstanding
principal amount of all Competitive Bid Loans then outstanding, equals the Total Commitment at
such time and (v) shall be denominated in an Approved Currency, provided that the aggregate
outstanding principal amount of all Revolving Loans denominated in a Primary




 









 







Alternate Currency, when added to the aggregate outstanding principal amount of all
Competitive Bid Loans denominated in an Approved Alternate Currency, shall not exceed the
Alternate Currency Sublimit at any time.




          (b) Subject to and upon the terms and conditions herein set forth, each Bank severally agrees
that the Borrower may incur a loan or loans (each, a “Competitive Bid Loan” and,
collectively, the “Competitive Bid Loans”) pursuant to a Competitive Bid Borrowing at any
time and from time to time on and after the Restatement Effective Date and prior to the date which
is the third Business Day preceding the date which is 7 days prior to the Final Maturity Date,
provided that after giving effect to any Competitive Bid Borrowing and the use of the
proceeds thereof, the aggregate outstanding principal amount of Competitive Bid Loans, when
combined with the aggregate principal amount of all Revolving Loans then outstanding and the
aggregate Letter of Credit Outstandings at such time, shall not exceed the Total Commitment at
such time. The Competitive Bid Loans shall be denominated in an Approved Alternate Currency,
provided that the aggregate outstanding principal amount of all Competitive Bid Loans
denominated in an Approved Alternate Currency, when added to the aggregate outstanding principal
amount of all Revolving Loans denominated in a Primary Alternate Currency, shall not exceed the
Alternate Currency Sublimit at any time. The parties hereto understand and agree that all
Competitive Bid Loans under and as defined in the Existing Credit Agreement which are outstanding
as of the Restatement Effective Date shall remain outstanding and constitute Competitive Bid Loans
for all purposes hereunder.




          1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount of each Borrowing
of Loans shall not be less than the applicable Minimum Borrowing Amount. More than one Borrowing
may be incurred on any day, provided that at no time shall there be outstanding more than
twelve (12) Borrowings of Eurodollar Loans in the aggregate.




          1.03
Notice of Borrowing of Revolving Loans. (a) Whenever the Borrower desires to
incur Revolving Loans, it shall give the Administrative Agent at its Notice Office, written notice
(or telephonic notice promptly confirmed in writing) of each Borrowing of Revolving Loans
constituting Eurodollar Loans prior to 12:00 Noon (New York time) on the third Business Day
preceding the date of the proposed. Borrowing and written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Revolving Loans constituting Base Rate Loans to be made
hereunder prior to 11:00 A.M. (New York time) on the date of the proposed Borrowing. Each of the
foregoing notices (each, a “Notice of Borrowing”) shall be irrevocable, and, in the case of each
written notice and each confirmation of telephonic notice, shall be in the form of Exhibit
A-1, appropriately completed to specify (i) the aggregate principal amount of the Revolving
Loans to be incurred, (ii) the date of incurrence (which shall be a Business Day), (iii) whether
the Revolving Loans are to be denominated in Dollars or a Primary Alternate Currency and, if a
Primary Alternate Currency, the Primary Alternate Currency so requested, and (iv) whether the
respective incurrence shall consist of Base Rate Loans or Eurodollar Loans and, if Eurodollar
Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall
promptly give each Bank written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing of Revolving Loans, of the proportionate share thereof of each Bank and of the
other matters covered by the Notice of Borrowing.




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     (b) Without in any way limiting the obligation of the Borrower to confirm in writing
any notice it may give hereunder by telephone, the Administrative Agent or the respective Letter
of Credit Issuer (in the case of the issuance of Letters of Credit), as the case may be, may act
prior to receipt of written confirmation without liability upon the basis of such telephonic
notice, reasonably believed by the Administrative Agent or such Letter of Credit Issuer, as the
case may be, in good faith to be from an Authorized Officer of the Borrower as a person entitled
to give telephonic notices under this Agreement on behalf of such Borrower. In each such case
the Borrower hereby waives the right to dispute the Administrative Agent’s record of the terms
of any such telephonic notice.



     1.04
Competitive Bid Borrowings. (a) Whenever the Borrower desires to incur a
Competitive Bid Borrowing, it shall deliver to the Administrative Agent, prior to 12:00 Noon (New
York time) (x) at least five Business Days prior to the date of such proposed Competitive Bid
Borrowing, in the case of a Spread Borrowing, and (y) at least two Business Days prior to the date
of such proposed Competitive Bid Borrowing, in the case of an Absolute Rate Borrowing, a written
notice substantially in the form of Exhibit A-2 hereto (a “Notice of Competitive Bid
Borrowing”), which notice shall specify in each case (i) the date (which shall be a Business
Day) and the aggregate amount of the proposed Competitive Bid Borrowing, (ii) the maturity date
for repayment of each and every Competitive Bid Loan to be made as part of such Competitive Bid
Borrowing (which maturity date may be (A) one, two, three or six months after the date of such
Competitive Bid Borrowing, in the case of a Spread Borrowing, and (B) between 7 and 364 days,
inclusive, after the date of such Competitive Bid Borrowing, in the case of an Absolute Rate
Borrowing, provided that in no event shall the maturity date of any Competitive Bid
Borrowing be later than the third Business Day preceding the Final Maturity Date, (iii) the
interest payment date or dates relating thereto, (iv) whether the proposed Competitive Bid
Borrowing is to be an Absolute Rate Borrowing or a Spread Borrowing, and if a Spread Borrowing, the
Interest Rate Basis, (v) whether the Competitive Bid Loans made pursuant to the proposed
Competitive Bid Borrowing are to be denominated in Dollars or an Approved Alternate Currency and,
if an Approved Alternate Currency, the Approved Alternate Currency so
desired and (vi) any other
terms to be applicable to such Competitive Bid Borrowing. The Administrative Agent shall promptly
notify each Bidder Bank by telephone or facsimile of each such request for a Competitive Bid
Borrowing received by it from the Borrower and of the contents of the related Notice of Competitive
Bid Borrowing.



     (b) Each Bidder Bank shall, if, in its sole discretion, it elects to do so, irrevocably
offer to make one or more Competitive Bid Loans to the Borrower as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest specified by such Bidder Bank in its
sole discretion and determined by such Bidder Bank independently of each other Bidder Bank, by
notifying the Administrative Agent (which shall give prompt notice thereof to the Borrower)
before 10:00 A.M. (New York time) on the date (the “Reply Date”) which is (x) in the case of an
Absolute Rate Borrowing, the date of such proposed Competitive Bid Borrowing and (y) in the case
of a Spread Borrowing, four Business Days before the date of such proposed Competitive Bid
Borrowing, of the minimum amount and maximum amount of each Competitive Bid Loan which such
Bidder Bank would be willing to make as part of such proposed Competitive Bid Borrowing (which
amounts may, subject to the proviso to the first sentence of Section 1.01(b), exceed such Bidder
Bank’s Commitment), the rate or rates of interest therefor and such Bidder Bank’s lending office
with respect to such Competitive Bid Loan; provided that if the




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Administrative Agent in its capacity as a Bidder Bank shall, in its sole discretion, elect to make
any such offer, it shall notify the Borrower of such offer before 9:45 A.M. (New York time) on the
Reply Date. If any Bidder Bank shall elect not to make such an offer, such Bidder Bank shall so
notify the Administrative Agent, before 10:00 A.M. (New York time) on the Reply Date, and such
Bidder Bank shall not be obligated to, and shall not, make any Competitive Bid Loan as part of
such Competitive Bid Borrowing; provided that the failure by any Bidder Bank to give such
notice shall not cause such Bidder Bank to be obligated to make any Competitive Bid Loan as part
of such proposed Competitive Bid Borrowing.




          (c) The Borrower shall, in turn, (x) before 11:00 A.M. (New York time) on the
Reply Date in the case of a proposed Absolute Rate Borrowing and (y) before 12:00 Noon (New
York time) on the Business Day following the Reply Date in the case of a proposed Spread
Borrowing, either:





     (i) cancel such Competitive Bid Borrowing by giving the Administrative Agent notice
to such effect, or




     (ii) accept one or more of the offers made by any Bidder Bank or Bidder Banks pursuant
to clause (b) above by giving notice (in writing or by telephone confirmed in writing) to
the Administrative Agent of the amount of each Competitive Bid Loan (which amount shall be
equal to or greater than the minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Administrative Agent on behalf of such Bidder Bank for such
Competitive Bid Borrowing pursuant to clause (b) above) to be made by each Bidder Bank as
part of such Competitive Bid Borrowing, and reject any remaining offers made by Bidder
Banks pursuant to clause (b) above by giving the Administrative Agent notice to that
effect; provided that the acceptance of offers may only be made on the basis of
ascending Absolute Rates (in the case of an Absolute Rate Borrowing) or Spreads (in the
case of a Spread Borrowing), in each case commencing with the lowest rate so offered;
provided further, however, if offers are made by two or more Bidder Banks at the
same rate and acceptance of all such equal offers would result in a greater principal
amount of Competitive Bid Loans being accepted than the aggregate principal amount
requested by the Borrower, if the Borrower elects to accept any of such offers the Borrower
shall accept such offers pro rata from such Bidder Banks (on the basis of the maximum
amounts of such offers) unless any such Bidder Bank’s pro rata share would be less than the
minimum amount specified by such Bidder Bank in its offer, in which case the Borrower shall
have the right to accept one or more such equal offers in their
entirety and reject the
other equal offer or offers or to allocate acceptance among all such equal offers (but
giving effect to the minimum and maximum amounts specified for each such offer pursuant to
clause (b) above), as the Borrower may elect in its sole discretion.



          (d) If the Borrower notifies the Administrative Agent that such Competitive Bid
Borrowing is cancelled pursuant to clause (c)(i) above, the Administrative Agent shall give
prompt notice thereof to the Bidder Banks and such Competitive Bid Borrowing shall not be
made.




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          (e) If the Borrower accepts one or more of the offers made by any Bidder Bank or Bidder Banks
pursuant to clause (c)(ii) above, the Administrative Agent shall in turn promptly notify (x) each
Bidder Bank that has made an offer as described in clause (b) above, of the date and aggregate
amount of such Competitive Bid Borrowing and whether or not any offer or offers made by such
Bidder Bank pursuant to clause (b) above have been accepted by the Borrower and (y) each Bidder
Bank that is to make a Competitive Bid Loan as part of such Competitive Bid Borrowing, of the
amount of each Competitive Bid Loan to be made by such Bidder Bank as part of such Competitive Bid
Borrowing. In connection with the incurrence of any Competitive Bid Loan denominated in a currency
other than Dollars, each Bidder Bank that is to make a Competitive Bid Loan as part of a
Competitive Bid Borrowing may request from the Administrative Agent a determination in accordance
with Section 12.07(d) as to the principal amount of such Competitive Bid Loan, and such Bidder
Bank shall be entitled to rely on such information provided by the
Administrative Agent.




          1.05
Disbursement of Funds. (a) Subject to the terms and conditions hereinafter
provided, each Bank will make available its pro rata share, if any, of each Borrowing
requested to be made on the date specified in a Notice of Borrowing or a Notice of Competitive Bid
Borrowing, as the case may be, in the manner provided below by no later than 1:00 P.M. (New York
time) on such date, but, in the case of a Borrowing of Base Rate Loans, only to the extent that
such Bank has received a notice from the Administrative Agent of such proposed Borrowing. All
amounts shall be made available to the Administrative Agent (x) in the case of a Borrowing of
Revolving Loans, in an Approved Currency as specified in such Notice of Borrowing and (y) in the
case of a Competitive Bid Borrowing, in Dollars or an Approved Alternate Currency as specified in
such Notice of Competitive Bid Borrowing and, in each case, in immediately available funds at the
Payment Office, and the Administrative Agent promptly will, on the date specified in such Notice of
Borrowing, make available to the Borrower by depositing to its account at the Payment Office the
aggregate of the amounts so made available by the Banks by the time specified in the preceding
sentence in the type of funds received. Unless the Administrative Agent shall have been notified by
any Bank prior to the date of Borrowing that such Bank does not intend to make available to the
Administrative Agent its portion, if any, of the Borrowing or Borrowings to be made on such date,
the Administrative Agent may assume that such Bank has made such amount available to the
Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact made available to the
Administrative Agent by such Bank and the Administrative Agent has made available same to the
Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such
Bank. If such Bank does not pay such corresponding amount forthwith upon the Administrative Agent’s
demand therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower
shall pay such corresponding amount to the Administrative Agent. The Administrative Agent shall
also be entitled to recover from such Bank or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (x) if to be paid by such Bank,
the customary rate set by the Administrative Agent for the correction of errors among banks for
each day during the period consisting of the first three Business Days following such date of
availability and thereafter at the Base Rate or (y) if to be




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paid by the Borrower, the then applicable rate of interest, calculated in accordance with Section
1.09 for the respective Loans.




          (b) Nothing herein shall be deemed to relieve any Bank from its obligation to fulfill its
commitments hereunder or to prejudice any rights which the Borrower may have against any Bank as
a result of any default by such Bank hereunder.




          1.06
Notes. (a) The Borrower’s obligation to pay the principal of, and interest on,
the Revolving Loans made to it by each Bank shall be evidenced by the Register maintained by the
Administrative Agent pursuant to Section 12.04 and shall, if requested by such Bank, also be
evidenced by a promissory note duly executed and delivered by the Borrower substantially in the
form of Exhibit B, with blanks appropriately completed in conformity herewith (each, a
“Note” and, collectively, the “Notes”).




          (b) The Note issued to each Bank requesting same shall (i) be payable to the order of such
Bank and be dated the Restatement Effective Date, (ii) be in a stated principal amount equal to the
Commitment of such Bank and be payable in the principal amount of the Revolving Loans evidenced
thereby, (iii) mature on the Final Maturity Date, (iv) bear interest as provided in the appropriate
clause of Section 1.09 in respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (v) be subject to mandatory repayment as provided in Section 4.02 and (vi) be
entitled to the benefits of this Agreement and the other Credit Documents.




          (c) Each Bank will note on its internal records the amount of each Loan made by
it and each payment in respect thereof and will, prior to any transfer of any of its Notes (if
any), endorse on the reverse side thereof the outstanding principal amount of Revolving Loans
evidenced thereby and the last date or dates on which interest has been paid in respect of the
Revolving Loans evidenced thereby. Failure to make any such notation shall not affect the
Borrower’s obligations in respect of such Revolving Loans, or affect the validity of such
transfer by any Bank of such Note.




          1.07 Conversions. The Borrower shall have the option to convert on any
Business Day occurring after the Restatement Effective Date, all or a portion at least equal
to the applicable Minimum Borrowing Amount of the outstanding principal amount of the Revolving
Loans made pursuant to one or more Borrowings of one or more Types of Revolving Loans into
a Borrowing or Borrowings of another Type of Revolving Loan, provided that (i) except
as provided in Section 1.11(b), Eurodollar Loans may be converted into Revolving Loans of
another Type only on the last day of an Interest Period applicable thereto and no partial
conversion of a Borrowing of Eurodollar Loans shall reduce the outstanding principal amount of
the Revolving Loans pursuant to such Borrowing to less than the Minimum Borrowing Amount
applicable thereto, (ii) Revolving Loans may only be converted into Eurodollar Loans if no
Default or Event of Default is in existence on the date of the conversion, (iii) Borrowings of
Eurodollar Loans resulting from this Section 1.07 shall be limited in number as provided in
Section 1.02 and (iv) Revolving Loans denominated in a Primary Alternate Currency may not be
converted into Base Rate Loans. Each such conversion shall be effected by the Borrower by
giving the Administrative Agent at its Notice Office, prior to 12:00 Noon (New York time), at
least three Business Days or, in the case of a conversion into Base Rate Loans, prior to 10:00





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A.M. (New York time) on the same Business Day, prior written notice (or telephonic notice promptly
confirmed in writing) (each, a “Notice of Conversion”) specifying the Revolving Loans to
be so converted, the Type of Revolving Loans to be converted into and, if to be converted into a
Borrowing of Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt notice of any such proposed conversion affecting
any of its Revolving Loans.




          1.08
Pro Rata Borrowings. All Borrowings of Revolving Loans shall be made
from the Banks pro rata on the basis of their Commitments. It is understood that no
Bank shall be responsible for any default by any other Bank in its obligation to make Loans hereunder and
that each Bank shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Bank to fulfill its commitments hereunder.




          1.09
Interest. (a) The unpaid principal amount of each Base Rate Loan shall
bear interest from and including the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum which shall at all times be the Base Rate in
effect from time to time.




          (b) The unpaid principal amount of each Eurodollar Loan shall bear interest from
and including the date of the Borrowing thereof until the earlier of (i) maturity (whether by
acceleration or otherwise) and (ii) conversion of such Eurodollar Loan to a Base Rate Loan
pursuant to Section 1.07, 1.10 or 1.1 1(b), as applicable, at a rate per annum which shall,
during each Interest Period applicable thereto, be equal to the sum
of the relevant LIBOR for such
Interest Period, plus the Applicable Margin, as in effect from time to time.




          (c) The unpaid principal amount of each Competitive Bid Loan shall bear interest
from the date the proceeds thereof are made available to the Borrower until maturity (whether
by acceleration or otherwise) at the rate or rates per annum specified by a Bidder Bank or Bidder
Banks, as the case may be, pursuant to Section 1.04(b) and accepted by the Borrower pursuant
to Section 1.04(c).




          (d) Overdue principal and, to the extent permitted by law, overdue interest in
respect of each Loan shall bear interest at a rate per annum equal to the Base Rate in effect
from time to time plus 2%, provided that no Loan shall bear interest after maturity
(whether by acceleration or otherwise) at a rate per annum less than 2% plus the rate of interest
applicable thereto at maturity.




          (e) Interest shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof and shall be payable in arrears (i) in respect of
each Base Rate Loan, quarterly on the last Business Day of each calendar quarter, (ii) in respect
of each Competitive Bid Loan, at such times as specified in the Notice of Competitive Bid
Borrowing relating thereto, (iii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period of six months, on
the date occurring three months after the first day of such Interest Period and (iv) in respect of each
Loan, on any prepayment (on the amount prepaid), at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand.




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          (f) All computations of interest hereunder shall be made in accordance with Section
12.07(b).




          (g) The Administrative Agent, upon determining the interest rate for any Borrowing of
Eurodollar Loans for any Interest Period, shall promptly notify the Borrower and the Banks
thereof.




          1.10
Interest Periods. At the time the Borrower gives a Notice of Borrowing or Notice
of Conversion in respect of the making of, or conversion into, a Borrowing of Eurodollar Loans (in
the case of the initial Interest Period applicable thereto) or prior to 12:00 Noon (New York time)
on the third Business Day prior to the expiration of an Interest Period applicable to a Borrowing
of Eurodollar Loans (in the case of any subsequent Interest Period), it shall have the right to
elect by giving the Administrative Agent written notice (or telephonic notice promptly confirmed
in writing) of the Interest Period applicable to such Borrowing, which Interest Period shall, at
the option of the Borrower, be a one, two, three or six month period. Notwithstanding anything to
the contrary contained above:





     (i) the initial Interest Period for any Borrowing of Eurodollar Loans shall commence
on the date of such Borrowing (including the date of any conversion
from a Borrowing of
Base Rate Loans) and each Interest Period occurring thereafter in respect of such Borrowing
shall commence on the day on which the next preceding Interest Period expires;




     (ii) if any Interest Period applicable to a Borrowing of Eurodollar Loans begins on a
day for which there is no numerically corresponding day in the calendar month at the end
of such Interest Period, such Interest Period shall end on the last Business Day of such
calendar month;




     (iii) if any Interest Period would otherwise expire on a day which is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day,
provided that if any Interest Period applicable to a Borrowing of Eurodollar Loans
would otherwise expire on a day which is not a Business Day but is a day of the month
after which no further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;




     (iv) no Interest Period shall extend beyond the Final Maturity Date;




     (v) no Interest Period may be elected at any time when a Default or Event of Default
is then in existence; and




     (vi) all Eurodollar Loans comprising a Borrowing shall at all times have the same
Interest Period,



          If upon the expiration of any Interest Period, the Borrower has failed to elect a new Interest
Period to be applicable to the respective Borrowing of Eurodollar Loans as provided above, or is
unable to elect a new Interest Period as a result of clause (v) above, the Borrower shall be deemed
to have elected to convert such Borrowing into a Borrowing of Base Rate Loans effective as of the
expiration date of such current Interest Period, provided that if such Eurodollar





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Loans are denominated in a Primary Alternate Currency then such Eurodollar Loans shall not convert
to Base Rate Loans but shall instead be prepaid by the Borrower on the last day of such Interest
Period.




          1.11
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of
clauses (i) and (iv) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii)
below, any Bank shall have determined (which determination shall, absent manifest error, be final
and conclusive and binding upon all parties hereto):





     (i) on any date for determining any LIBOR for any Interest Period or in respect of any
Spread Borrowing priced by reference to US LIBOR that, by reason of any changes arising
after the date of this Agreement affecting the relevant interbank market, adequate and fair
means do not exist for ascertaining generally the applicable interest rate on the basis
provided for in the definition of the respective LIBOR; or




     (ii) at any time, that such Bank shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any Eurodollar Loans or
Competitive Bid Loans (other than any increased cost or reduction in the amount received
or receivable resulting from the imposition of or a change in the rate of taxes or similar
charges) because of (x) any change since the date of this Agreement (or, in the case of
any such cost or reduction with respect to any Competitive Bid Loan, since the making of
such Competitive Bid Loan) in any applicable law, governmental rule, regulation,
guideline, order or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of any new law or
governmental rule, regulation, guideline, order or request (such as, for example, but not
limited to, a change in official reserve requirements, but, in all events, excluding
reserves referred to in Section 111(d)) and/or (y) other circumstances adversely affecting
the relevant interbank market or the position of such Bank in such market;




     (iii) at any time, that the making or continuance of any Eurodollar Loan or
Competitive Bid Loan has become unlawful by compliance by such Bank in good faith with any
law, governmental rule, regulation, guideline or order (or would conflict with any such
governmental rule, regulation, guideline or order not having the force of law but with
which such Bank customarily complies even though the failure to comply therewith would not
be unlawful), or has become impracticable as a result of a contingency occurring after the
date of this Agreement which adversely affects the relevant interbank market; or




     (iv) at any time that any Approved Alternate Currency is not available in sufficient
amounts, as determined in good faith by the Administrative Agent, to fund any Borrowing of
Loans denominated in such Approved Alternate Currency;


then, and in any such event, such Bank (or the Administrative Agent in the case of clause (i)
above) shall promptly give notice (by telephone confirmed in writing) to the Borrower and (except
in the case of clause (i) or (iv)) to the Administrative Agent of such determination (which notice
the Administrative Agent shall promptly transmit to each of the other
Banks). Thereafter (w) in the
case of clause (i) above, Eurodollar Loans (or Competitive Bid Loans constituting a





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Spread Borrowing priced by reference to US LIBOR) shall no longer be available until such
time as the Administrative Agent notifies the Borrower and the Banks that the circumstances giving
rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing.
Notice of Competitive Bid Borrowing or Notice of Conversion given by the Borrower with respect to
Eurodollar Loans or any affected Competitive Bid Loans, as the case may be, which have not yet
been incurred shall be deemed rescinded by such Borrower, (x) in the case of clause (ii) above,
the Borrower shall, subject to the provisions of Section 1.15 (to the extent applicable), pay to
such Bank, upon written demand therefor, such additional amounts (in the form of an increased rate
of, or a different method of calculating, interest or otherwise as such Bank in its reasonable
discretion shall determine) as shall be required to compensate such Bank for such increased costs
or reductions in amounts receivable hereunder (y) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 1.11(b) as promptly as possible and, in any
event, within the time period required by law and (z) in the case of clause (iv) above, Loans in
the affected Approved Alternate Currency shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Banks that the circumstances giving rise to
such notice by the Administrative Agent no longer exist and any Notice of Borrowing or Notice of
Conversion given by the Borrower with respect to any Loans denominated in such Approved Alternate
Currency which have not yet been incurred shall be deemed rescinded by the Borrower.




          (b) At any time that any Eurodollar Loan or Competitive Bid Loan is affected by
the circumstances described in Section 1.11(a)(ii) or (iii), the Borrower may (and in the case
of a Eurodollar Loan or Competitive Bid Loan affected pursuant to Section 1.11(a)(iii), shall)
either (i) if the affected Eurodollar Loan or Competitive Bid Loan is then being made pursuant to a
Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice
(confirmed promptly in writing) thereof on the same date that the Borrower was notified by a
Bank pursuant to Section 1.11(a)(ii) or (iii), (ii) if the affected Eurodollar Loan or
Competitive Bid Loan is then outstanding, upon at least three Business Days’ notice to the Administrative
Agent (A) in the case of Eurodollar Loans denominated in Dollars, require the affected Bank to
convert each such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the
circumstances described in Section 1.11(a)(iii), shall occur no later than the last day of the
Interest Period then applicable to such Eurodollar Loan (or such earlier date as shall be
required by applicable law)), and (B), in the case of Eurodollar
Loans denominated in a Primary
Alternate Currency, repay all such Eurodollar Loans in full or (iii) if the affected
Competitive Bid Loan is then outstanding, prepay such Competitive Bid Loan in full (which prepayment may
be made with the proceeds of Revolving Loans); provided that if more than one Bank is
affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.11
(b).




          (c) If any Bank determines at any time that the adoption or effectiveness after the
Restatement Effective Date of any applicable law, rule or regulation regarding capital
adequacy, or any change therein after the Restatement Effective Date, or any change after the
Restatement Effective Date in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or administration thereof,
or actual compliance by such Bank with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of increasing the costs to such Bank to a level above
that, or reducing the rate of return on such Bank’s capital or assets as a consequence of its
commitments





- 10 -









 







or obligations hereunder to a level below that, which such Bank could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such Bank’s policies
with respect to capital adequacy), then from time to time, upon written demand by such Bank
(with a copy to the Administrative Agent), the Borrower shall, subject to the provisions of
Section 1.15 (to the extent applicable), pay to such Bank such additional amount or amounts as
will compensate such Bank for such increased costs or reduction. Each Bank, upon determining
that any additional amounts will be payable pursuant to this Section 1.11(c), will give prompt
written notice thereof to the Borrower, which notice shall set forth the basis of the calculation
of such additional amounts, although the failure to give any such notice shall not release or
diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 1.11(c)
upon receipt of such notice.




          (d) In the event that any Bank shall determine (which determination shall, absent manifest
error, be final and conclusive and binding on all parties hereto) at any time that by reason of
Regulation D such Bank is required to maintain reserves in respect of Eurocurrency loans or
liabilities during any period that it has a Eurodollar Loan or a Competitive Bid Loan priced by
reference to any LIBOR outstanding, then such Bank shall promptly notify the Borrower and the
Administrative Agent by written notice (or telephonic notice promptly confirmed in writing)
specifying the additional amounts required to indemnify such Bank against the cost of maintaining
such reserves (such written notice to provide a computation of such additional amounts) and the
Borrower shall, subject to the provisions of Section 1.15 (to the extent applicable), directly pay
to such Bank such specified amounts as additional interest at the time that it is otherwise
required to pay interest in respect of such Eurodollar Loan or Competitive Bid Loan or, if later,
on demand.




          1.12
Compensation. The Borrower shall, subject to the provisions of Section 1.15 (to
the extent applicable), compensate each Bank, upon its written request (which request shall set
forth the basis for requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability incurred by reason of
the liquidation or reemployment of deposits or other funds required by such Bank to fund its
Eurodollar Loans or Competitive Bid Loans to the Borrower) which such Bank may sustain:





     (i) if for any reason (other than a default or error by such Bank or the
Administrative Agent) a Borrowing of Eurodollar Loans or Competitive Bid Loans accepted by
the Borrower in accordance with Section 1.04(c)(ii) does not occur on a date specified
therefor in a Notice of Borrowing, Notice of Competitive Bid Borrowing or Notice of
Conversion (whether or not withdrawn by the Borrower or deemed withdrawn pursuant to
Section 1.11(a));




     (ii) if any repayment or conversion of any of its Eurodollar Loans or any repayment
of Competitive Bid Loans occurs on a date which is not the last day of an Interest Period
applicable thereto;




     (iii) if any prepayment of any of its Eurodollar Loans or Competitive Bid Loans is not
made on any date specified in a notice of prepayment given by the Borrower; or



- 11 -









 






     (iv) as a consequence of (x) any other default by the Borrower to repay its Eurodollar
Loans or Competitive Bid Loans when required by the terms of this Agreement or (y) an
election made pursuant to Section 1.1 1(b).



          Calculation of all amounts payable to a Bank with respect to Eurodollar Loans or Competitive
Bid Loans priced by reference to any LIBOR under this Section 1.12 shall be made as though that
Bank had actually funded its relevant Loan through the purchase of a Eurodollar deposit bearing
interest at the respective LIBOR in an amount equal to the amount of that Loan, having a maturity
comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit
from an offshore office of that Bank to a domestic office of that Bank in the United States of
America (or if such Bank has no offshore office, from an offshore office of the Administrative
Agent to the domestic office of the Administrative Agent);
provided, however, that each
Bank may fund each of its Eurodollar Loans or Competitive Bid Loans in any manner it sees fit and
the foregoing assumption shall be utilized only for the calculation of amounts payable under this
Section 1.12.




          1.13 Change of Lending Office. Each Bank agrees that, upon the occurrence of
any event giving rise to the operation of Section 1.11(a)(ii) or
(iii), 1.1 l(c), 1.1 1(d),
2.05 or 4.04 with respect to such Bank, it will, if requested by the Borrower, use reasonable efforts
(subject to overall policy considerations of such Bank) to designate another lending office of such Bank
for any Loans or Letters of Credit affected by such event, provided that such designation is made
on such terms that such Bank or its respective lending offices suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the event giving rise
to the operation of any such Section. Nothing in this Section 1.13 shall affect or postpone any
of the obligations of the Borrower or the right of any Bank provided
in Section 1.11, 2.05 or 4.04.




          1.14
Replacement of Banks. (x) Upon the occurrence of any event giving rise to
the operation of Section 1.11(a)(ii) or (iii), Section 1.11(c), Section 1.11(d), Section 2.05
or Section 4.04 with respect to any Bank which results in such Bank charging to the Borrower
increased costs which are material in amount and are in excess of those being generally
charged by the other Banks or (y) as provided in Section 12.12(b) in the case of certain refusals by a
Bank to consent to certain proposed changes, waivers, discharges or terminations with respect
to this Agreement which have been approved by the Required Banks, the Borrower shall have the
right, if no Default or Event of Default then exists or will exist immediately after giving
effect to the respective replacement and, in the case of a Bank described in clause (x) above, such Bank
has not withdrawn its request for such compensation or changed its applicable lending office
with the effect of eliminating or substantially decreasing (to a level which is not material)
such increased cost, to replace such Bank (the “Replaced
Bank”) with one or more other Eligible
Assignee or Assignees (collectively, the “Replacement Bank”) reasonably acceptable to the
Administrative Agent and each Letter of Credit Issuer; provided that (i) at the time
of any replacement pursuant to this Section 1.14, the Replacement Bank shall enter into one or more
Assignment Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to said
Section 12.04(b) to be paid by the Replacement Bank) pursuant to which the Replacement Bank
shall acquire all of the Commitment and outstanding Loans of, and participations in Letters of
Credit by, the Replaced Bank and, in connection therewith, shall pay to (x) the Replaced Bank
in respect thereof an amount equal to the sum of (A) an amount
equal to the principal of, and all
accrued interest on, all outstanding Loans of the Replaced Bank, (B) an amount equal to all





- 12 -









 







Unpaid Drawings that have been funded by (and not reimbursed to) such Replaced Bank, together with
all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued,
but theretofore unpaid, Fees owing to the Replaced Bank pursuant to Section 3.01 and (y) the
respective Letter of Credit Issuer an amount equal to such Replaced Bank’s Percentage (for this
purpose, determined as if the adjustment described in clause (y) of the immediately succeeding
sentence had been made with respect to such Replaced Bank) of any Unpaid Drawing (which at such
time remains an Unpaid Drawing) with respect to any Letter of Credit issued by such Letter of
Credit Issuer to the extent such amount was not theretofore funded by such Replaced Bank, and (ii)
all obligations of the Borrower owing to the Replaced Bank (other than those specifically
described in clause (i) above in respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Bank concurrently with such
replacement. Upon the execution of the respective Assignment Agreements, the payment of amounts
referred to in clauses (i) and (ii) above and, if so requested by the Replacement Bank, delivery
to the Replacement Bank of an appropriate Note executed by the Borrower, (x) the Replacement Bank
shall become a Bank hereunder and the Replaced Bank shall cease to constitute a Bank hereunder,
except with respect to indemnification provisions under this Agreement (including, without
limitation, Sections 1.11, 1.12, 2.05, 4.04 and, 12.01), which shall survive as to such Replaced
Bank and (y) the Percentages of the Banks shall be automatically adjusted at such time to give
effect to such replacement.




          1.15 Limitation on Additional Amounts, etc. Notwithstanding anything to the
contrary contained in Sections 1.11, 1.12, 2.05 or 4.04 of this Agreement, unless a Bank gives
notice to the Borrower that it is obligated to pay an amount under any such respective Section
within 120 days after the later of (x) the date the Bank incurs the respective increased
costs, taxes, loss, expense or liability, reduction in amounts received or receivable or reduction in
return on capital or (y) the date such Bank has actual knowledge of its incurrence of the
respective increased costs, taxes, loss, expense or liability, reductions in amounts received
or receivable or reduction in return on capital, then such Bank shall only be entitled to be
compensated for such amount by the Borrower pursuant to said Section 1.11, 1.12, 2.05 or 4.04,
as the case may be, to the extent the costs, taxes, loss, expense or liability, reduction in
amounts received or receivable or reduction in return on capital are incurred or suffered on or after
the date which occurs 120 days prior to such Bank giving notice to the Borrower that it is
obligated to pay the respective amounts pursuant to said Section 1.11, 1.12, 2.05 or 4.04, as the case
may be. Each Bank, in determining additional amounts owing under Sections 1.11, 1.12, 2.05 or
4.04, will act reasonably and in good faith, provided that such Bank’s determination
of such additional amounts so owing shall, absent manifest error, be final and conclusive and binding
on all parties hereto. This Section 1.15 shall have no applicability to any Section of this
Agreement other than said Sections 1.11, 1.12, 2.05 and 4.04.




          1.16 Additional Commitments. (a) The Borrower shall have the right at any
time and from time to time after the Restatement Effective Date and prior to the Final
Maturity Date to request (so long as no Default or Event of Default is then in existence or would
result therefrom) on one or more occasions that one or more Additional Commitment Banks (and/or
one or more other Persons which will become Additional Commitment Banks as provided
pursuant to clause (vi) below) provide Additional Commitments; it being understood and agreed,
however, that (i) no Additional Commitment Bank shall be obligated to provide an Additional
Commitment as a result of any request by the Borrower, (ii) until such time, if any, as (x)
such





- 13 -









 







Additional Commitment Bank has agreed in its sole discretion to provide an Additional Commitment
and executed and delivered to the Administrative Agent an Additional Commitment Agreement in
respect thereof as provided in Section 1.16(b) and (y) such other conditions set forth in Section
1.16(b) shall have been satisfied, such Additional Commitment Bank shall not be obligated to make
Revolving Loans or participate in Letters of Credit, in excess of the amounts provided for herein,
before giving effect to such Additional Commitments provided pursuant to this Section 1.16, (iii)
any Additional Commitment Bank (and/or one or more other Persons which will become Additional
Commitment Banks as provided pursuant to clause (vi) below) may so provide an Additional
Commitment without the consent of any other Additional Commitment Bank (it being understood and
agreed that the consent of the Administrative Agent and each Letter of Credit Issuer (such
consent (in either case) not to be unreasonably withheld or delayed) shall be required if any such
Additional Commitments are to be provided by a Person which is not already an Additional
Commitment Bank), (iv) (x) each provision of Additional Commitments on a given date pursuant to
this Section 1.16 shall be in a minimum aggregate amount (for all Additional Commitment Banks
(including, in the circumstances contemplated by clause (vi) below, banks or other financial
institutions who will become Additional Commitment Banks)) of at least $1,000,000 and (y) the
aggregate amount of Additional Commitments provided pursuant to this Section 1.16 shall not exceed
$100,000,000, (v) the up-front fees payable to any Person providing an Additional Commitment in
accordance with this Section 1.16 shall be as set forth in the relevant Additional Commitment
Agreement, (vi) if, on or after the tenth Business Day following the request by the Borrower of
the then existing Additional Commitment Banks to provide Additional Commitments pursuant to this
Section 1.16 on the terms to be applicable thereto, the Borrower has not received Additional
Commitments in an aggregate amount equal to that amount of the Additional Commitments which the
Borrower desires to obtain pursuant to such request (as set forth in the notice provided by the
Borrower to the Administrative Agent as provided above), then the Borrower may request Additional
Commitments from other banks or financial institutions (unless otherwise agreed by the Borrower
and the Administrative Agent) in an aggregate amount equal to such deficiency on terms which are
no more favorable to such other bank or financial institution in any respect than the terms
offered to the existing Additional Commitment Banks, and (vii) all actions taken by the Borrower
pursuant to this Section 1.16 shall be done in coordination with
the Administrative Agent.




          (b) At the time of any provision of Additional Commitments pursuant to this Section 1.16, (i)
the Borrower, the Administrative Agent and each such Additional Commitment Bank or other bank or
financial institution which agrees to provide an Additional Commitment (each, an “Additional Bank”)
shall execute and deliver to the Administrative Agent an Additional Commitment Agreement
substantially in the form of Exhibit E, subject to such modifications in form and substance
reasonably satisfactory to the Administrative Agent as may be necessary or appropriate (with the
effectiveness of such Additional Bank’s Additional Commitment to occur upon delivery of such
Additional Commitment Agreement to the Administrative Agent, the payment of any fees required in
connection therewith and the satisfaction of the other conditions in this Section 1.16 to the
reasonable satisfaction of the Administrative Agent), (ii) if such Additional Bank is not a United
States person (as such term is defined in Section 7701(a)(3) of the Code) for U.S. Federal income
tax purposes, such Additional Bank shall provide to the Borrower the appropriate Internal Revenue
Service documentation described in Section 4.04, (iii) the Borrower shall deliver to the
Administrative





- 14 -









 







Agent resolutions authorizing the incurrence of the Obligations to be incurred pursuant to each
Additional Commitment, together with evidence of good standing of the Borrower (if requested) and
(iv) the Borrower shall deliver to the Administrative Agent an opinion, in form and substance
reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably
satisfactory to the Administrative Agent and dated such date, covering such matters similar to
those set forth in the opinions of counsel delivered to the Banks on the Restatement Effective
Date pursuant to Section 5.01(d) and such other matters as the Administrative Agent may reasonably
request. The Administrative Agent shall promptly notify each Additional Commitment Bank as to the
occurrence of each Additional Commitment Date, and (x) on each such date, the Total Commitment
under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such
Additional Commitments and (y) on each such date, Schedule I shall be deemed modified to reflect
the revised Additional Commitments of the affected Additional Commitment Banks. Notwithstanding
anything to the contrary contained in this Agreement, in connection with any increase in the Total
Commitment pursuant to this Section 1.16, the Borrower shall, in coordination with the
Administrative Agent and the Banks, repay outstanding Revolving Loans of certain Banks and, if
necessary, incur additional Revolving Loans from other Banks, in each case so that such Banks
participate in each Borrowing of such Revolving Loans pro rata on the basis of their
Commitments (after giving effect to any increase thereof). It is hereby agreed that any breakage
costs of the type described in Section 1.12 incurred by the Banks in connection with the repayment
of Revolving Loans contemplated by this Section 1.16 shall be for the account of the Borrower




          SECTION
2. Letters of Credit.




          2.01
Letters of Credit. (a) Subject to and upon the terms and conditions herein set
forth, the Borrower may request a Letter of Credit Issuer at any time and from time to time on or
after the Restatement Effective Date and prior to the third Business Day preceding the Final
Maturity Date to issue, and subject to the terms and conditions herein set forth, such Letter of
Credit Issuer hereby agrees to issue from time to time, (x) for the account of the Borrower on a
standby basis and in support of insurance obligations, workers compensation, bonding obligations in
respect of taxes, licenses and similar requirements or obligations in respect of commodities
purchased by the Borrower or any of its Subsidiaries in the ordinary course of their respective
businesses and not for speculative purposes (to the extent consistent with the practices of the
Borrower and its Subsidiaries prior to the Restatement Effective Date), in each case of the
Borrower, any of its Subsidiaries or any Permitted Joint Venture, and other obligations (as
specified in the respective Letter of Credit Request and consented to by the Administrative Agent
and the respective Letter of Credit Issuer) of the Borrower, any of its Subsidiaries and/or any
Permitted Joint Venture, an irrevocable standby letter of credit so requested by the Borrower in a
form customarily used by such Letter of Credit Issuer or in such other form as may be approved by
such Letter of Credit Issuer and the Administrative Agent (each such standby letter of credit, a
“Standby Letter of Credit” and, collectively, the “Standby Letters of Credit”), and
(y) for the account of the Borrower and for the benefit of sellers of goods to the Borrower, any of
its Subsidiaries or any Permitted Joint Venture, an irrevocable documentary letter of credit in a
form customarily used by such Letter of Credit Issuer or in such other form as may be approved by
such Letter of Credit Issuer and the Administrative Agent in support of commercial transactions of
the Borrower, any of its Subsidiaries or any Permitted Joint Venture, as the case may be, entered
into in the ordinary course of its business (each such documentary letter of credit, a





- 15 -









 






“Trade Letter of Credit” and, collectively, the “Trade Letters of Credit” and
together with the Standby Letters of Credit, the “Letters of
Credit”). Notwithstanding the
foregoing, no Letter of Credit Issuer shall be obligated to issue any Letter of Credit at a time
when a Bank Default exists unless such Letter of Credit Issuer has entered into arrangements
satisfactory to it and the Borrower to eliminate such Letter of Credit Issuer’s risk with respect
to the participation in Letters of Credit of the Bank which is the subject of the Bank Default,
including by cash collateralizing such Bank’s Percentage of the Letter of Credit Outstandings. It
is acknowledged and agreed that each of the letters of credit which were issued under the Existing
Credit Agreement and which remain outstanding on the Restatement Effective Date and are set forth
on Schedule IV (each such letter of credit, an “Existing Letter of Credit” and,
collectively, the “Existing Letters of Credit”) shall, from and after the Restatement
Effective Date, constitute a Letter of Credit for all purposes of this Agreement and shall, for
purposes of Sections 2.02 and 3.01, be deemed issued on the
Restatement Effective Date. The Stated
Amount of each Existing Letter of Credit and the expiry date therefor, each as in effect on the
Restatement Effective Date, is set forth on Schedule IV.




          (b) Notwithstanding the foregoing,





     (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the
Letter of Credit Outstandings at such time, would exceed either (x) $50,000,000 or (y) when
added to the aggregate principal amount of all Revolving Loans and all Competitive Bid
Loans then outstanding, the Total Commitment at such time;




     (ii) each Letter of Credit shall by its terms terminate on or before the earlier of
(x)(A) in the case of Standby Letters of Credit, the date which occurs 18 months after
such Standby Letter of Credit’s date of issuance (subject to extension provisions
acceptable to the Administrative Agent and the respective Letter of Credit Issuer) and (B)
in the case of Trade Letters of Credit, the date which occurs 12 months after such Trade
Letter of Credit’s date of issuance and (y) the third Business Day preceding the Final
Maturity Date;




     (iii) each Standby Letter of Credit shall be denominated in Dollars;




     (iv) each Trade Letter of Credit shall be denominated in Dollars or an Approved
Alternate Currency, provided that no Trade Letter of Credit denominated in an
Approved Alternate Currency shall be issued by any Letter of Credit Issuer if the Stated
Amount of such Trade Letter of Credit, when added to the Letter of Credit Outstandings at
such time in respect of Trade Letters of Credit denominated in Approved Alternate
Currencies, would exceed $10,000,000;




     (v) no Standby Letter of Credit shall have a Stated Amount of less than $100,000
unless otherwise agreed to by the respective Letter of Credit Issuer;




     (vi) no Trade Letter of Credit shall have a Stated Amount of less than $10,000 unless
otherwise agreed to by the respective Letter of Credit Issuer;




     (vii) no Letter of Credit shall be issued by any Letter of Credit Issuer after it has
received a written notice from the Borrower, the Administrative Agent or the Required



- 16 -









 






Banks stating that a Default or Event of Default has occurred and is continuing until
such time as such Letter of Credit Issuer shall have received a written notice of (x)
rescission of such notice from the party or parties originally delivering such notice or
(y) the waiver of such Default or Event of Default by the Required Banks; and




     (viii) no Letter of Credit shall be issued in support of any obligation of any
Permitted Joint Venture the Stated Amount of which, when added to the sum of (x) the Joint
Venture Letter of Credit Outstandings at such time and (y) the aggregate outstanding
principal amount of all Joint Venture Investments, would exceed $50,000,000.



          In connection with the issuance of any Letter of Credit, the respective Letter of Credit
Issuer may request from the Administrative Agent (x) a determination in accordance with Section
1.2.07(c)(y) as to the Stated Amount of any Letter of Credit and of the principal amount of Unpaid
Drawings, in each case to the extent denominated in a currency other than Dollars, (y) the Letter
of Credit Outstandings at such time with respect to Letters of Credit issued by all other Letter
of Credit Issuers and (z) the aggregate principal amount of outstanding Revolving Loans and
Competitive Bid Loans (including the Dollar equivalent thereof) at such time, and such Letter of
Credit Issuer shall be entitled to rely on such information provided by the Administrative Agent.




          2.02
Letter of Credit Participations. (a) Immediately upon the issuance by a Letter
of Credit Issuer of any Letter of Credit, the respective Letter of Credit Issuer shall be deemed
to have sold and transferred to each other Bank (each such other Bank, in its capacity under this
Section 2.02, a “Participating Bank”), and each such Participating Bank shall be deemed
irrevocably and unconditionally to have purchased and received from such Letter of Credit Issuer,
without recourse or warranty, an undivided interest and participation, to the extent of such
Participating Bank’s Percentage, in such Letter of Credit, each substitute letter of credit, each
drawing made thereunder and the obligations of the Borrower under this Agreement with respect
thereto, and any security therefor or guaranty pertaining thereto (although L/C Fees will be paid
directly to the Administrative Agent for the ratable account of the Participating Banks as
provided in Section 3.01(b) and the Participating Banks shall have no right to receive any portion
of any L/C Facing Fees). Upon any change in the Commitments of the Banks pursuant to Section
12.04, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings, there shall be an automatic adjustment to the participations pursuant to this Section
2.02 to reflect the new Percentages of the assignor and assignee Banks.




          (b) In determining whether to pay under any Letter of Credit, the respective Letter of Credit
Issuer issuing same shall have no obligation relative to any other Bank other than to confirm that
any documents required to be delivered under such Letter of Credit have been delivered and that
they appear to comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by a Letter of Credit Issuer under or in connection with any Letter of
Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct,
shall not create for such Letter of Credit Issuer any resulting liability to the Borrower or any
Bank.





- 17 -










 






          (c) In the event that a Letter of Credit Issuer makes any payment under any Letter of
Credit issued by it and the Borrower shall not have reimbursed such amount in full to such Letter
of Credit Issuer pursuant to Section 2.04(a), such Letter of Credit Issuer shall promptly notify
the Administrative Agent and after receipt of such notice, the Administrative Agent will notify
each Participating Bank of such failure, and each Participating Bank shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter of Credit Issuer,
the amount of such Participating Bank’s Percentage of such unreimbursed payment in lawful money of
the United States of America and in same day funds; provided, however that no
Participating Bank shall be obligated to pay to the Administrative Agent for the account of such
Letter of Credit Issuer its Percentage of such unreimbursed amount for any wrongful payment made
by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer.
If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day,
any Participating Bank required to fund a payment under a Letter of Credit, such Participating
Bank shall make available to the Administrative Agent for the account of such Letter of Credit
Issuer such Participating Bank’s Percentage of the amount of such payment on such Business Day in
same day funds. If and to the extent such Participating Bank shall not have so made its Percentage
of the amount of such payment available to the Administrative Agent for the account of such Letter
of Credit Issuer, such Participating Bank agrees to pay to the Administrative Agent for the
account of such Letter of Credit Issuer, forthwith on demand, such amount, together with interest
thereon, for each day from such date until the date such amount is paid to the Administrative
Agent for the account of such Letter of Credit Issuer at the overnight Federal Funds Rate. The
failure of any Participating Bank to make available to the Administrative Agent for the account of
the respective Letter of Credit Issuer its Percentage of any payment under any Letter of Credit
shall not relieve any other Participating Bank of its obligation hereunder to make available to
the Administrative Agent for the account of such Letter of Credit Issuer its Percentage of any
payment under any Letter of Credit on the date required, as specified above, but no Participating
Bank shall be responsible for the failure of any other Participating Bank to make available to the
Administrative Agent, such other Participating Bank’s Percentage of any such payment.




          (d) Whenever a Letter of Credit Issuer receives a payment of a reimbursement
obligation as to which the Administrative Agent has received for the account of such Letter of
Credit Issuer any payments from the Participating Banks pursuant to clause (c) above, such
Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each Participating Bank which has paid its Percentage thereof, in Dollars and
in same day funds, an amount equal to such Participating Bank’s share (based upon the
proportionate aggregate amount originally funded by such Participating Bank to the aggregate
amount funded by all Participating Banks) of the principal amount of such reimbursement and of
interest reimbursed thereon accruing from and after the date of the purchase of the respective
participations.




          (e) The obligations of the Participating Banks to make payments to the
Administrative Agent for the account of any Letter of Credit Issuer with respect to Letters of
Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any
other qualification or exception whatsoever and shall be made in accordance with the terms and






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conditions of this Agreement under all circumstances, including, without limitation, any of the
following circumstances:





     (i) any lack of validity or enforceability of this Agreement or any of the other
Credit Documents;




     (ii) the existence of any claim set-off, defense or other right which the Borrower,
any of its Subsidiaries or any Permitted Joint Venture may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Administrative Agent, any
Syndication Agent, any Letter of Credit Issuer, any Bank, or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions contemplated herein
(including the Transaction) or any unrelated transactions (including any underlying
transaction between the Borrower, any of its Subsidiaries or any Permitted Joint Venture
and the beneficiary named in any such Letter of Credit);




     (iii) any draft, certificate or any other document presented under any 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;




     (iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or




     (v) the occurrence of any Default or Event of Default.



          2.03 Letter of Credit Requests; Notices of Issuance. (a) Whenever it desires that
a Letter of Credit be issued, the Borrower shall give the Administrative Agent and the
respective Letter of Credit Issuer written notice (including by way of telecopier) thereof prior to 1:00
P.M. (New York time) at least three Business Days (or such shorter period as may be acceptable to
such Letter of Credit Issuer) prior to the proposed date (which shall be a Business Day) of
issuance (each, a “Letter of Credit Request”), which Letter of Credit Request shall
include an application for the Letter of Credit and any other documents that such Letter of Credit Issuer
customarily requires in connection therewith. The Administrative Agent shall promptly notify
each Bank of each Letter of Credit Request.




          (b) The delivery of each Letter of Credit Request shall be deemed a representation and
warranty by the Borrower that such Letter of Credit as requested in such Letter of Credit Request
may be issued in accordance with and will not violate the requirements of Section 2.01(b). Each
Letter of Credit Issuer shall, on the date of each issuance of a Letter of Credit by it, give the
Administrative Agent, each Bank and the Borrower written notice of the issuance of such Letter of
Credit, accompanied by a copy to the Administrative Agent of the Letter of Credit or Letters of
Credit issued by it.




          2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby
agrees to reimburse each respective Letter of Credit Issuer, by making payment to the
Administrative Agent for the account of such Letter of Credit Issuer in Dollars in immediately
available funds at the Payment Office, for any payment or disbursement made by such Letter of
Credit Issuer under any Letter of Credit issued by it (each such amount so paid or disbursed
until





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reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, notice from
such Letter of Credit Issuer of such payment or disbursement with interest on the amount so paid
or disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 1:00 P.M. (New
York time) on the date of such payment or disbursement, from and including the date paid or
disbursed to but not including the date such Letter of Credit Issuer is reimbursed therefor at a
rate per annum which shall be the Base Rate as in effect from time to time (plus an additional 2%
per annum if not reimbursed by the third Business Day after the date of notice of such payment or
disbursement), such interest to be payable on demand.




          (b) The Borrower’s obligation under this Section 2.04 to reimburse each respective Letter of
Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower, any of its Subsidiaries or any Permitted
Joint Venture may have or have had against such Letter of Credit Issuer, the Administrative Agent,
any Syndication Agent or any Bank, including, without limitation, any defense based upon the
failure of any drawing under a Letter of Credit to conform to the terms of the Letter of Credit or
any non-application or misapplication by the beneficiary of the proceeds of such drawing or any
amendment or waiver or any consent to or departure from a Letter of Credit or any other
circumstance whatsoever in making or failing to make payment under a Letter of Credit;
provided, however, that the Borrower shall not be obligated to reimburse a Letter of
Credit Issuer for any wrongful payment made by such Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the
part of such Letter of Credit Issuer.




          2.05 Increased Costs. If at any time after the Restatement Effective Date, the
adoption or effectiveness of any applicable law, rule or regulation, or any change therein, or any
change in the interpretation or administration thereof by any governmental authority, central bank
or comparable agency charged with the interpretation or administration thereof, or actual
compliance by any Letter of Credit Issuer or any Participating Bank with any request or directive
(whether or not having the force of law) by any such authority, central bank or comparable agency
shall either (i) impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against Letters of Credit issued by any Letter of Credit Issuer or any
Participating Bank’s participation therein or (ii) impose on any Letter of Credit Issuer or any
Participating Bank any other conditions affecting this Agreement, any Letter of Credit or any
Participating Bank’s participation therein; and the result of any of the foregoing is to increase
the cost to any such Letter of Credit Issuer or any such Participating Bank of issuing, maintaining
or participating in any Letter of Credit, or to reduce the amount of any sum received or receivable
by any such Letter of Credit Issuer or such Participating Bank hereunder, then, upon demand to the
Borrower by such Letter of credit Issuer or such Participating Bank (a copy of which notice shall be
sent by such Letter of Credit Issuer or such Participating Bank to the Administrative Agent), the
Borrower shall, subject to Section 1.15 (to the extent applicable), pay to such Letter of Credit
Issuer or such Participating Bank such additional amount or amounts as will compensate such Letter
of Credit Issuer or such Participating Bank for such increased costs or reduction. A certificate
shall be submitted to the Borrower by a Letter of Credit Issuer or such Participating Bank, as the
case may be (a copy of which certificate shall be sent by such Letter of Credit Issuer or such
Participating Bank to the Administrative Agent), setting forth the basis for the determination of
such additional amount or amounts necessary to compensate such Letter of




-20-









 




Credit Issuer or such Participating Bank as aforesaid, although the failure to deliver any
such certificate shall not release or diminish any of the Borrower’s obligations to pay
additional amounts pursuant to this Section 2.05.




          2.06 Indemnification. In addition to its other obligations under this Section 2, the
Borrower hereby agrees to protect, indemnify and hold harmless each Letter of Credit Issuer (and
their respective officers, directors, employees, representatives and agents) from and against any
and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys’
fees) whatsoever which may be incurred by such Letter of Credit Issuer (or which may be claimed
against such Letter of Credit Issuer by any Person whatsoever) by reason of or in connection with
(i) the issuance or a transfer of, or payment or failure to pay under, any Letter of Credit issued
by such Letter of Credit Issuer and (ii) involvement of such Letter of Credit Issuer in any suit,
investigation, proceeding, inquiry or action as a consequence, direct or indirect, of such Letter
of Credit Issuer’s issuance of a Letter of Credit or any other event or transaction related
thereto; provided, however, that the Borrower shall not be required to indemnify any
Letter of Credit Issuer for any claims, damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, caused by the willful misconduct or gross negligence of such
Letter of Credit Issuer.




          SECTION 3. Fees; Commitments.




          3.01 Fees. (a) The Borrower agrees to pay to the Administrative Agent a facility fee
(the “Facility Fee”) for the account of each Bank pro rata on the basis of their
respective Percentages for the period from and including the Restatement Effective Date to but not
including the date the Total Commitment has been terminated, computed at a rate for each day equal
to the Applicable Facility Fee Percentage on the daily average Total Commitment. Accrued Facility
Fees shall be due and payable quarterly in arrears on the last Business Day of each calendar
quarter and on the date upon which the Total Commitment is terminated.




          (b) The Borrower agrees to pay to the Administrative Agent for the account of the Banks pro
rata on the basis of their respective Percentages, a fee in respect of each Letter of
Credit (the “L/C Fee”) in an amount equal to the Applicable Margin on the average daily Stated
Amount of such Letter of Credit. Accrued L/C Fees shall be due and payable quarterly in arrears on
the last Business Day of each calendar quarter and on the date upon which the Total Commitment is
terminated.




          (c) The Borrower agrees to pay to the Administrative Agent for the account of each respective
Letter of Credit Issuer a fee in respect of each Letter of Credit issued by such Letter of Credit
Issuer (the “L/C Facing Fee”) computed at a per annum rate separately agreed to with each such
Letter of Credit Issuer on the average daily Stated Amount of such Letter of Credit. Accrued L/C
Facing Fees shall be due and payable quarterly in arrears on the last Business Day of each calendar
quarter and on the date upon which the Total Commitment is terminated.




          (d) The Borrower hereby agrees to pay to each respective Letter of Credit Issuer upon each
issuance of, drawing under and/or amendment of, a Letter of Credit issued by it such amount as
shall at the time of such issuance, drawing and/or amendment equal the administrative





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charge which such Letter of Credit Issuer is customarily charging at such time for
issuances of, drawings under and/or amendments of letters of credit issued by it.




          (e) The Borrower shall pay to the Administrative Agent (x) on the Restatement Effective Date
for its own account and/or for distribution to the Syndication Agents and/or the Banks such fees as
heretofore agreed in writing by the Borrower and the Administrative Agent and (y) for the account
of the Administrative Agent, such other fees as may be agreed to in writing from time to time
between the Borrower and the Administrative Agent, when and as due.




          (f) All computations of Fees shall be made in accordance with Section 12.07.




          3.2 Voluntary Reduction of Commitments. Upon at least three Business Days’ prior
written notice (or telephonic notice confirmed in writing) to the Administrative Agent at its
Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Banks),
the Borrower shall have the right, without premium or penalty, to terminate, in part or in whole,
the Total Unutilized Commitment; provided that (x) any such termination shall apply to
proportionately and permanently reduce the Commitment of each of the Banks, and (y) any partial
reduction pursuant to this Section 3.02 shall be in the amount of at least $5,000.000.




          3.3 Mandatory Adjustments of Commitments. The Total Commitment (and the Commitment of
each Bank) shall terminate on the earlier of (x) the date on which a Change of Control occurs and
(y) the Final Maturity Date.




          SECTION 4. Payments.




          4.01 Voluntary Prepayments. The Borrower shall have the right to prepay Revolving
Loans or Competitive Bid Loans in whole or in part, without penalty or fee except as otherwise
provided in this Agreement, at any time and from time to time on the following terms and
conditions: (i) the Borrower shall give the Administrative Agent at the Notice Office written
notice (or telephonic notice promptly confirmed in writing) (each such notice, a “Notice of
Prepayment”) of its intent to prepay the Revolving Loans or Competitive Bid Loans, the amount
of such prepayment and (in the case of Eurodollar Loans) the specific Borrowing(s) pursuant to
which such Eurodollar Loans were made, which Notice of Prepayment shall be substantially in the
form of Exhibit A-3 and shall be given by the Borrower prior to 12:00 Noon (New York time)
at least three Business Days prior to the date of such prepayment (in the case of Eurodollar Loans)
and prior to 12:00 Noon (New York time) on the date of such prepayment (in the case of Base Rate
Loans), which Notice of Prepayment shall promptly be transmitted by the Administrative Agent to
each of the Banks (or, in the case of a prepayment of Competitive Bid Loans, to the Bank or Banks
which made such Competitive Bid Loans); (ii) each partial prepayment of any Borrowing of Base Rate
Loans shall be in an aggregate principal amount of at least $1,000,000 and of any Borrowing of
Eurodollar Loans or any Absolute Rate Borrowing shall be in an aggregate principal amount of at
least $5,000,000, provided that no partial prepayment of Eurodollar Loans made pursuant to
a single Borrowing shall reduce the aggregate principal amount of Eurodollar Loans outstanding
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto;
(iii) each prepayment in respect of any Revolving Loans made pursuant to a Borrowing shall be
applied pro rata among such Revolving




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Loans; and (iv) Eurodollar Loans may be designated for prepayment pursuant to this Section 4.01
only on the last day of the Interest Period applicable thereto.




          4.02 Mandatory Prepayments. 




          (A) Requirements:




          (a) (i) If on any date the sum of (x) the aggregate outstanding principal amount of Revolving
Loans and Competitive Bid Loans (after giving effect to all other repayments thereof on such date)
plus (y) the Letter of Credit Outstandings on such date (the foregoing, collectively, the
“Aggregate Outstandings”), exceeds the Total Commitment as then in effect, the Borrower shall,
repay on such date the principal of Revolving Loans in an aggregate amount equal to such excess.
If, after giving effect to the prepayment of all outstanding Revolving Loans, the Aggregate
Outstandings exceed the Total Commitment then in effect, the Borrower shall repay on such date the
principal of Competitive Bid Loans in an aggregate amount equal to such excess, provided
that (i) no Competitive Bid Loan shall be prepaid pursuant to this sentence unless the Bank that
made same consents to such prepayment and (ii) in the absence of such consent, the provisions of
the second sentence of Section 4.02(B) shall be applicable. If, after giving effect to the
prepayment of all outstanding Revolving Loans and the prepayment (or, as may be required by
Section 4.02(B), the cash collateralization) of all outstanding Competitive Bid Loans as set forth
above, the remaining Aggregate Outstandings exceed the Total Commitment then in effect, the
Borrower shall pay to the Administrative Agent an amount in cash and/or Cash Equivalents
(satisfactory to the Administrative Agent) equal to such excess (up to a maximum, amount equal to
the Letter of Credit Outstandings at such time) and the Administrative Agent shall hold such
payment as security for the Obligations of the Borrower in a cash collateral account created
pursuant to an agreement to be entered into in form and substance satisfactory to the
Administrative Agent (which shall permit certain investments in Cash Equivalents satisfactory to
the Administrative Agent, until the proceeds are applied to the Obligations) (a “Cash
Collateral Account”).




          (ii) If on any date the aggregate outstanding principal amount of Revolving Loans and
Competitive Bid Loans denominated in Primary Alternate Currencies (after giving effect to all
other repayments thereof on such date) is greater than 105% of the Alternate Currency Sublimit,
the Borrower shall repay on such date the principal of Revolving Loans (and, if necessary after
all Revolving Loans have been repaid, Competitive Bid Loans) in an aggregate amount equal to such
aggregate outstanding principal amount in excess of the Alternate Currency Sublimit at such time.




          (iii) For purposes of this Section 4.02(A)(a), (x) the outstanding principal amount of
Revolving Loans and Competitive Bid Loans and (y) the aggregate Stated Amount of outstanding
Letters of Credit and the aggregate amount of Unpaid Drawings in respect thereof, in each case to
the extent such Revolving Loans, Competitive Bid Loans or Letters of Credit are denominated in an
Approved Alternate Currency, will be measured on a Dollar-equivalent basis in accordance with the
terms of Sections 12.07(c) and (d). The Borrower agrees that mandatory prepayments may be required
from time to time under this Section 4.02(A)(a) pursuant to the preceding sentence as a result of
fluctuations in the exchange rate for any Approved Alternate Currency.





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          (B) Application: With respect to each repayment of Revolving Loans required by Section
4.02(A), the Borrower may designate the Types of Revolving Loans which are to be prepaid and the
specific Borrowing(s) pursuant to which made, provided that (i) Eurodollar Loans may be
designated for repayment pursuant to this Section 4.02(B) only on the last day of an Interest
Period applicable thereto unless all Eurodollar Loans with Interest Periods ending on such date of
required repayment and all Base Rate Loans have been paid in full; (ii) each repayment of any
Revolving Loans made pursuant to a Borrowing shall be applied pro rata among such
Revolving Loans; and (iii) if any repayment of Eurodollar Loans denominated in Dollars made pursuant
to a single Borrowing shall reduce the outstanding Revolving Loans made pursuant to such Borrowing
to an amount less than the Minimum Borrowing Amount for such Eurodollar Loans, such Borrowing shall
be immediately converted into Base Rate Loans. At any time that the Borrower is obligated to prepay
any Competitive Bid Loan pursuant to Section 1.11(b) or 4.02(A) on a date other than the scheduled
maturity date thereof, such prepayment shall only be made if the respective Bank that made such
Competitive Bid Loan has consented in writing (or by telephone confirmed in writing) to the
Borrower to such prepayment within 48 hours after notice (in writing or by telephone confirmed in
writing) by the Borrower to such Bank of such prepayment (it being understood that the Borrower
will give such notice and that any failure to respond to such notice will constitute a rejection
thereof); if such prepayment is not so consented to by the respective Bank then, in the case of a
prepayment otherwise required pursuant to Section 4.02(A), the Borrower will deposit an amount in
cash or Cash Equivalents (satisfactory to the Administrative Agent) equal to 100% of the principal
amounts that otherwise would have been paid in respect of the Competitive Bid Loans (subject to the
provisions of Section 12.07(d)) with the Administrative Agent to be held as security for the
Obligations of the Borrower in a Cash Collateral Account, with such cash collateral to be released
from such Cash Collateral Account (and applied to repay the principal amount of such Competitive
Bid Loans) upon each occurrence thereafter of the last day of an Interest Period applicable to the
relevant Competitive Bid Loans, with the amount to be so released and applied on the last day of
each Interest Period to be the amount of the Competitive Bid Loans to which such Interest Period
applies (or, if less, the amount remaining in such Cash Collateral Account). In the absence of a
designation of a Type of Revolving Loan by the Borrower as described in the second preceding
sentence, the Administrative Agent shall, subject to the above, make such designation in its sole
discretion with a view, but no obligation, to minimize breakage costs owing under Section 1.12.




          (C) Notwithstanding anything to the contrary contained elsewhere in this Agreement, all
then outstanding Loans shall be prepaid in full on the Final Maturity Date.




          4.03 Method and Place of Payment. Except as otherwise specifically provided herein,
all payments under this Agreement shall be made to the Administrative Agent for the ratable account
of the Banks entitled thereto, not later than 1:00 P.M. (New York time) on the date when due and
shall be made in immediately available funds and in lawful money of the United States of America at
the Payment Office. Any payments under this Agreement which are made later than 1:00 P.M. (New York
time) shall be deemed to have been made on the next succeeding Business Day. Whenever any payment
to be made hereunder shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.





-24-









 








          4.04 Net Payments. (a) All payments made by the Borrower hereunder or under any
Note will be made without setoff, counterclaim or other defense. Except as provided in Section
4.04(b), all such payments will be made free and clear of, and without deduction or withholding
for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but excluding, except as
provided in the second succeeding sentence, any tax imposed on or measured by the net income or
net profits of a Bank pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office of such Bank is located or
any subdivision thereof or therein) and all interest, penalties or similar liabilities with
respect to such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
(all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees
to pay the full amount of such Taxes, and such additional amounts as may be necessary so that
every payment of all amounts due under this Agreement or under any Note, after withholding or
deduction for or on account of any Taxes, will not be less than the amount provided for herein or
in such Note. If any amounts are payable in respect of Taxes pursuant to the preceding sentence,
the Borrower agrees to reimburse each Bank, upon the written request of such Bank, for taxes
imposed on or measured by the net income or net profits of such Bank pursuant to the laws of the
jurisdiction in which such Bank is organized or in which the principal office or applicable
lending office of such Bank is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which such Bank is organized or in which the principal
office or applicable lending office of such Bank is located and for any withholding of taxes as
such Bank shall determine are payable by, or withheld from, such Bank, in respect of such amounts
so paid to or on behalf of such Bank pursuant to the preceding sentence and in respect of any
amounts paid to or on behalf of such Bank pursuant to this sentence. The Borrower will furnish to
the Administrative Agent within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the Borrower. The
Borrower agrees to indemnify and hold harmless each Bank, and reimburse such Bank upon its written
request, for the amount of any Taxes so levied or imposed and paid by such Bank.




          (b) Each Bank that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver to the Borrower and
the Administrative Agent on or prior to the Restatement Effective Date, or in the case of a Bank
that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or
12.04 (unless the respective Bank was already a Bank hereunder immediately prior to such assignment
or transfer), on the date of such assignment or transfer to such Bank, (i) two accurate and
complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such
Bank’s entitlement as of such date to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note, or (ii) if the
Bank is not a “bank” within the meaning of Section 881 (c)(3)(A) of the Code and cannot deliver
either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption
under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the
form of Exhibit I (any such certificate, a “Section 4.04(b)(ii) Certificate”) and
(y) two accurate and complete original signed copies of Internal Revenue





-25-









 







Service Form W-8BEN (with respect to the portfolio interest exemption)(or successor form)
certifying to such Bank’s entitlement to a complete exemption from United States withholding tax
with respect to payments of interest to be made under this Agreement and under any Note. In
addition, each Bank agrees that from time to time after the Restatement Effective Date, when a
lapse in time or change in circumstances renders the previous certification obsolete or inaccurate
in any material respect, it will deliver to the Borrower and the Administrative Agent two new
accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN
(with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the
portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax with respect to payments
under this Agreement and any Note, or it shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or Certificate, in which case such
Bank shall not be required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a), but subject to
Section 12.04(b) and the immediately succeeding sentence, (x) the Borrower shall be entitled, to
the extent it is required to do so by law, to deduct or withhold income or similar taxes imposed
by the United States (or any political subdivision or taxing authority thereof or therein) from
interest Fees or other amounts payable hereunder for the account of any Bank which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes to the extent that such Bank has not provided to the Borrower U.S. Internal Revenue
Service Forms that establish a complete exemption from such deduction or withholding and (y) the
Borrower shall not be obligated pursuant to Section 4.04(a) hereof to gross-up payments to be made
to a Bank in respect of income or similar taxes imposed by the United States if (I) such Bank has
not provided to the Borrower the Internal Revenue Service Forms required to be provided to the
Borrower pursuant to this Section 4.04(b) or (II) in the case of a payment, other than interest,
to a Bank described in clause (ii) above, to the extent that such Forms do not establish a
complete exemption, from withholding of such taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 4.04 and except as set forth in
Section 12.04(b), the Borrower agrees to pay any additional amounts and to indemnify each Bank in
the manner set forth in Section 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any Taxes deducted or withheld by it as
described in the immediately preceding sentence as a result of any changes that are effective
after the Restatement Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting or withholding of
such Taxes.




          SECTION 5. Conditions Precedent.




          5.01 Conditions Precedent to Loans on the Restatement Effective Date. The occurrence
of the Restatement Effective Date pursuant to Section 12.10 and the obligation of each Bank to make
Loans to the Borrower hereunder, and the obligation of each Letter of Credit Issuer to issue
Letters of Credit hereunder, in each case on the Restatement Effective Date, is subject, at the
time of such Credit Event, to the satisfaction of the following conditions:




          (a) Execution of Agreement; Notes. On or prior to the Restatement Effective Date (i)
this Agreement shall have been executed and delivered as provided in Section 12.10 and





-26-









 







(ii) there shall have been delivered to the Administrative Agent for the account of each Bank, if
so requested by such Bank, the appropriate Note executed by the Borrower, in the amount, maturity
and as otherwise provided herein.




          (b) Officer’s Certificate. On the Restatement Effective Date, the Administrative
Agent shall have received from the Borrower a certificate dated such date signed on behalf of the
Borrower by its Chief Financial Officer or any other Authorized Officer stating that all the
conditions in Sections 5.01 (e), (f), (i) and (j) and 5.02(a) have been satisfied on such date with
respect to the Borrower.




          (c) Corporate Documents; Proceedings; Officers’ Certificates. (i) On the
Restatement Effective Date, the Administrative Agent shall have received from the Borrower a
certificate, dated the Restatement Effective Date, signed by an Authorized Officer of the Borrower,
substantially in the form of Exhibit C with appropriate insertions, together with copies of
the Certificate of Incorporation and By-Laws of the Borrower and the resolutions of the Borrower
referred to in such certificate and the foregoing shall be satisfactory to the Administrative
Agent.





     (ii) On the Restatement Effective Date, all corporate and legal proceedings and all
instruments and agreements in connection with the transactions contemplated by this
Agreement and the other Credit Documents shall be satisfactory in form and substance to
the Administrative Agent, and the Administrative Agent shall have received all information
and copies of all certificates, documents and papers, including good standing certificates
and any other records of corporate proceedings and governmental approvals, if any, which
the Administrative Agent may have requested in connection therewith, such documents and
papers where appropriate to be certified by proper corporate or governmental authorities.



          (d) Opinions of Counsel. On the Restatement Effective Date, the Administrative Agent
shall have received an opinion, addressed to the Administrative Agent, each Syndication Agent and
each of the Banks and dated the Restatement Effective Date, from (i) Stroock & Stroock & Lavan
LLP, counsel to the Borrower, substantially in the form of Exhibit D-1 hereto, which
opinion shall cover such other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request and (ii) White & Case LLP, special counsel to the
Banks, substantially in the form of Exhibit D-2 hereto.




          (e) Existing Credit Agreement. On the Restatement Effective Date, (i) the Borrower
shall have repaid in full all loans outstanding under the Existing Credit Agreement on the
Restatement Effective Date, together with all accrued and unpaid interest, fees and commitment
commission (and any other amounts) owing under the Existing Credit Agreement through the
Restatement Effective Date and (ii) each lender under the Existing Credit Agreement shall have
received payment in full of all amounts then due and owing to it under the Existing Credit
Agreement; provided that all Competitive Bid Loans under and as defined in the Existing
Credit Agreement may remain outstanding.




          (f) Approvals. On the Restatement Effective Date, all necessary governmental and
third party approvals (including, without limitation, the approval of the shareholders of the





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Borrower and its Subsidiaries to the extent required) required in connection with the Transaction
and the other transactions contemplated by this Agreement and the other Credit Documents and
otherwise referred to herein or therein shall have been obtained and remain in effect, and all
applicable waiting periods shall have expired without any action being taken by any competent
authority which restrains, prevents or imposes, in the reasonable judgment of the Required Banks
or the Administrative Agent; materially adverse conditions upon the consummation of the
Transaction or the other transactions contemplated by the respective Credit Documents.




          (g) Employee Benefit Plans: Collective Bargaining Agreements; Management Agreements;
Employment Agreements, etc. As of the Restatement Effective Date, all of the Borrower’s and
each of its Subsidiaries’ Employee Benefit plans, Collective Bargaining Agreements, Management
Agreements, Employment Agreements, Shareholders’ Agreements, Permitted Existing Indebtedness
Agreements and Tax Sharing Agreements shall be in full force and effect on the Restatement
Effective Date.




          (h) Payment of Fees. On or prior to the Restatement Effective Date, all costs, fees
and expenses, and all other compensation contemplated by this Agreement, due to the Administrative
Agent, any Syndication Agent or the Banks (including, without limitation, legal fees and expenses)
shall have been paid by the Borrower to the extent due.




          (i) Adverse Change. From December 31, 2004 to the Restatement Effective Date, nothing
shall have occurred (and none of the Borrower, the Required Banks, the Administrative Agent, any
Syndication Agent shall have become aware of any facts or conditions not previously known) which
the Borrower, the Required Banks or the Administrative Agent shall determine (i) has, or is
reasonably likely to have, a material adverse effect on the rights or remedies of the Banks or the
Administrative Agent, or on the ability of the Borrower to perform its obligations to the Banks or
the Administrative Agent under this Agreement or any other Credit Document or (ii) has, or could
reasonably be expected to have, a Material Adverse Effect.




          (j) Litigation. No litigation by any entity (private or governmental) shall be
pending or threatened on the Restatement Effective Date (a) with respect to this Agreement or any
other Credit Document, or (b) which the Administrative Agent or the Required Banks shall determine
could reasonably be expected to have a Material Adverse Effect.




          (l) Outstanding Indebtedness. On the Restatement Effective Date and after giving
effect to the Transaction, neither the Borrower nor any of its Subsidiaries shall have any
Indebtedness except for (i) the Loans, (ii) the Permitted Existing Indebtedness and (iii) such
additional Indebtedness permitted by Section 8.03. All of the Permitted Existing Indebtedness shall
remain outstanding after the consummation of the Transaction and the other transactions
contemplated hereby without any default or events of default existing thereunder or arising as a
result of the Transaction and the other transactions contemplated hereby (except to the extent
amended or waived by the parties thereto on terms and conditions satisfactory to the Administrative
Agent and the Required Banks), and there shall not be any amendments or modifications to the
Permitted Existing Indebtedness Agreements other than as requested or approved by the
Administrative Agent and the Required Banks.





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          (m) Release of Subsidiary Guaranties. On the Restatement Effective Date, all
guaranties by Subsidiaries of the Borrower of the Senior Notes and any other Indebtedness of the
Borrower shall be released and terminated.




          5.02 Conditions Precedent to All Credit Events. The obligation of each Bank to make
any Loans and the obligation of each Letter of Credit Issuer to issue Letters of Credit (including,
without limitation, Loans made and Letters of Credit issued on the Restatement Effective Date) is
subject, at the time of each such Credit Event, to the satisfaction of the following conditions at
such time:





     (a) No Default; Representations and Warranties. At the time of each Credit
Event and also after giving effect thereto (i) there shall exist no Default or Event of
Default and (ii) all representations and warranties contained herein or in the other Credit
Documents in effect at such time shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made on and as of the
date of such Credit Event (except to the extent any representation or warranty is expressly
made as of a specific date, in which case such representation and warranty shall be true and
correct in all material respects as of such date).




     (b) Notice of Borrowing; Notice of Competitive Bid Borrowing; Letter of Credit
Request. The Administrative Agent shall have received a Notice of Borrowing with
respect to such Borrowing meeting the requirements of Section 1.03 (a) and/or a Notice of
Competitive Bid Borrowing with respect to such Competitive Bid Borrowing meeting the
requirements of Section 1.04(a), and/or the Administrative Agent and the respective Letter
of Credit Issuer shall have received a Letter of Credit Request for such issuance of a
Letter of Credit meeting the requirements of Section 2.03, as the case may be.


The occurrence of the Restatement Effective Date and the acceptance of the benefits of each Credit
Event shall constitute a representation and warranty by the Borrower to each of the Banks that all
of the applicable conditions specified in Section 5.01 (with respect to the Restatement Effective
Date only) and in this Section 5.02 are then satisfied. All of the certificates, legal opinions
and other documents and papers referred to in Section 5.01 and this Section 5.02, unless otherwise
specified, shall be delivered to the Administrative Agent at its Notice Office for the account of
each of the Banks and, except for the Notes, in sufficient counterparts or copies for each of the
Banks and shall be reasonably satisfactory in form and substance to the Administrative Agent.




          SECTION 6. Representations, Warranties and Agreements. In order to induce the Banks to
enter into this Agreement and to make the Loans and participate in Letters of Credit and each
Letter of Credit Issuer to issue Letters of Credit as provided for herein, the Borrower makes the
following representations and warranties to, and agreements with, the Banks and each Letter of
Credit Issuer, in each case after giving effect to the Transaction, all of which shall survive the
execution and delivery of this Agreement and the making of the Loans and the issuance of Letters of
Credit (with the occurrence of each Credit Event being deemed to constitute a representation and
warranty that the matters specified in this Section 6 are true and correct in all material respects
on and as of the date of each Credit Event, except to the extent that any representation or
warranty is expressly made as of a specific date, in which case such





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representation or warranty shall be true and correct in all material respects as of such specific
date):




          6.01 Corporate Status. (i) Each of the Borrower and its Subsidiaries is a duly
incorporated, validly existing corporation and, in the case of those entities incorporated in the
United States, in good standing under the laws of the jurisdiction of its organization and has the
corporate power and authority to own all property and assets owned by it, to lease all property
and assets held under lease by it and to transact the business in which it is engaged and
presently proposes to engage and (ii) each of the Borrower and its Subsidiaries has duly qualified
and is authorized to do business and, with respect to jurisdictions within the United States, is
in good standing in all jurisdictions where it is required to be so qualified, except where the
failure to be so qualified could not reasonably be expected to have a Material Adverse Effect.




          6.02 Corporate Power and Authority. The Borrower has the corporate power and
authority to execute, deliver and carry out the terms and provisions of the Credit Documents to
which it is a party and has taken all necessary corporate action to authorize the execution,
delivery and performance of the Credit Documents to which it is a party. The Borrower has duly
executed and delivered each Credit Document to which it is a party and each such Credit Document
constitutes the legal, valid and binding obligation of the Borrower enforceable in accordance with
its terms.




          6.03 No Violation. Neither the execution, delivery and performance by the Borrower of
the Credit Documents to which it is a party nor compliance with the terms and provisions thereof,
nor the consummation of the transactions contemplated therein (i) will contravene any applicable
provision of any law, statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict or be inconsistent with or result in any breach of
any of the terms, covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of the Borrower pursuant to the terms of any indenture, mortgage, deed of trust,
agreement or other instrument to which the Borrower is a party or by which it or any of its
property or assets are bound or to which it may be subject, including, without limitation, any
Permitted Existing Indebtedness Agreements, or (iii) will violate any provision of the Certificate
of Incorporation or By-Laws of the Borrower.




          6.04 Litigation. There are no actions, suits or proceedings pending or, to the best knowledge of
the Borrower, threatened with respect to the Borrower or any of its Subsidiaries (i) that could
reasonably be expected to have a Material Adverse Effect or (ii) that could have a material adverse
effect on the rights or remedies of the Administrative Agent or the Banks or on the ability of the
Borrower to perform its obligations to them hereunder and under the other Credit Documents to which
it is, or will be, a party.




          6.05 Use of Proceeds. (a) The proceeds of Loans shall be utilized (i) to effect the
Transaction, (ii) to pay fees and expenses arising in connection with the Transaction and (iii) for
general corporate purposes of the Borrower and its Subsidiaries, in each case in accordance with
the terms and provisions of this Agreement.





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          (b) No part of the proceeds of any Loan will be used to purchase or carry any Margin Stock
or to extend credit for the purpose of purchasing or carrying any Margin Stock, except proceeds of
Loans used in connection with Common Stock Repurchases to the extent permitted pursuant to the
terms of the Agreement. No more than 25% of the assets of the Borrower and its Subsidiaries
subject on the Restatement Effective Date to the restrictions set forth in Section 8.01 and/or
8.02 constitute Margin Stock. Neither the making of any Loan hereunder, nor the use of the
proceeds thereof (including effecting Common Stock Repurchases), will violate the provisions of
Regulation T, U or X of the Board of Governors of the Federal Reserve System.




          6.06 Governmental Approvals. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with (except as shall have
been obtained or made prior to the Restatement Effective Date or, with respect to any Common Stock
Repurchase or Permitted Senior Note Repurchase, prior to the date of the consummation of such
Common Stock Repurchase or Permitted Senior Note Repurchase, and are in full force and effect at
such time), or exemption by, any foreign or domestic governmental body or authority, or any
subdivision thereof, is required to authorize or is required in connection with (i) the execution,
delivery and performance of any Credit Document or (ii) the legality, validity, binding effect or
enforceability of any Credit Document.




          6.07 Investment Company Act. The Borrower is not an “investment company” or a company
“controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940,
as amended.




          6.08 Public Utility Holding Company Act. The Borrower is not 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, as amended.




          6.09 True and Complete Disclosure. All factual information (taken as a whole)
heretofore or contemporaneously furnished in writing by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Bank (including, without limitation, all
information contained in the Credit Documents) for purposes of or in connection with this Agreement
or any transaction contemplated herein is, and all other such factual information (taken as a
whole) hereafter furnished in writing by or on behalf of the Borrower or any of its Subsidiaries to
any Bank will be, true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any material fact
necessary to make such information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided. The projections and pro forma
financial information contained in such materials are based on good faith estimates and assumptions
believed by the Borrower to be reasonable at the time made, it being recognized by the Banks that
such projections as to future events are not to be viewed as facts and accordingly are not covered
by the first sentence of this Section 6.09, and that actual results during the period or periods
covered by any such projections may differ from the projected results in any material or other
respect. There is no fact known to the Borrower or any of its Subsidiaries which has, or could
reasonably be expected to have, a Material Adverse Effect which has not been disclosed





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herein or in such other documents, certificates and statements furnished to the Banks for use
in connection with the transactions contemplated hereby.




          6.10 Financial Condition; Financial Statements. (a) On and as of the
Restatement Effective Date on a pro forma basis after giving effect to the
Transaction and all Indebtedness incurred, and to be incurred, by the Borrower in connection
therewith, with respect to each of the Borrower and the Borrower and its Subsidiaries taken as a
whole, (x) the sum of its or their assets, at a fair valuation, will exceed its or their debts, (y)
it or they will not have incurred nor intended to, nor believes that it or they will, incur debts
beyond its or their ability to pay such debts as such debts mature and (z) it and they will have
sufficient capital with which to conduct its or their businesses. For purposes of this Section
6.10(a), “debt” means any liability on a claim, and “claim” means (i) right to payment whether or
not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured; or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured.




          (b) The consolidated balance sheets of the Borrower and its Subsidiaries at December 31, 2004
and March 31, 2005 and the related consolidated statements of operations and cash flows of the
Borrower and its Subsidiaries for the fiscal year or three-month period ended as of said dates,
which December 31, 2004 financial statements have been audited by Ernst & Young, independent
certified public accountants, copies of which have heretofore been furnished to each Bank, present
fairly in all material respects the consolidated financial position of the Borrower and its
Subsidiaries at the date of said statements and the consolidated results of their operations and
cash flows for the period covered thereby. All such financial statements have been prepared in
accordance with GAAP in all material respects except to the extent provided in the notes to said
financial statements.




          (c) Nothing has occurred since December 31, 2004, that has had or could reasonably be expected
to have a Material Adverse Effect.




          (d) Except as fully reflected in the financial statements described in Section 6.10(b), there
are as of the Restatement Effective Date (and after giving effect to any Credit Events made on
such date), no liabilities or obligations of the Borrower or any of its Subsidiaries (excluding
current obligations incurred in the ordinary course of business) of a type required to be disclosed
in financial statements prepared in accordance with generally accepted accounting principles
(whether absolute, accrued, contingent or otherwise and whether or not due), and the Borrower does
not know, as of the Restatement Effective Date (after giving effect to any Credit Events made on
such date), of any basis for the assertion against the Borrower or any of its Subsidiaries of any
such liability or obligation, which has or could be reasonably expected to have a Material Adverse
Effect.




          6.11 Tax Returns and Payments. Each of the Borrower and each of its
Subsidiaries has filed all federal income tax returns and all other material tax returns, domestic
and foreign, required to be filed by it and has paid all material taxes and assessments payable by
it which have become due, except for those contested in good faith and adequately disclosed and





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fully provided for on the financial statements of the Borrower and its Subsidiaries in accordance
with generally accepted accounting principles. The Borrower and each of its Subsidiaries have at
all times paid, or have provided adequate reserves (in the good faith judgment of the management
of the Borrower) for the payment of, all federal, state and foreign income taxes applicable for
all prior fiscal years and for the current fiscal year to date. There is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the knowledge of the Borrower or any
of its Subsidiaries, threatened by any authority regarding any taxes relating to the Borrower or
any of its Subsidiaries. Neither the Borrower nor any of its Subsidiaries has entered into an
agreement or waiver or been requested to enter into an agreement or waiver extending any statute
of limitations relating to the payment or collection of taxes of the Borrower or any of its
Subsidiaries, or is aware of any circumstances that would cause the taxable years or other taxable
periods of the Borrower or any of its Subsidiaries not to be subject to the normally applicable
statute of limitations.




          6.12 Compliance with ERISA. (a) Each Plan (other than any multiemployer plan as
defined in section 4001(a)(3) of ERISA (a “Multiemployer Plan”)) currently maintained or
contributed to by (or to which there is an obligation to contribute of) the Borrower or any of its
Subsidiaries or any ERISA Affiliate is in material compliance with ERISA and the Code; no
Reportable Event has occurred with respect to any such Plan; no such Plan has an Unfunded Current
Liability which either individually or when added to the aggregate amount of Unfunded Current
Liabilities with respect to all other Plans, has or could be reasonably expected to have a Material
Adverse Effect; no such Plan has an accumulated or waived funding deficiency or permitted decreases
in its funding standard account or has applied for an extension of any amortization period within
the meaning of Section 412 of the Code; all contributions required to be made with respect to any
Plan currently maintained or contributed to by (or to which there is an obligation to contribute
of) the Borrower or any of its Subsidiaries or any ERISA Affiliate and any Foreign Pension Plan
have been timely made; neither the Borrower nor any of its Subsidiaries nor any of their ERISA
Affiliates has incurred any material liability to or on account of a Plan pursuant to Section 409,
502(i), 502(i), 4062, 4063, 4064 or 4069 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code,
or expects to incur any liability (including any indirect, contingent, or secondary liability)
under any of the foregoing Sections with respect to any Plan; no proceedings have been instituted
to terminate or appoint a trustee to administer any such Plan; no condition exists which presents a
material risk to the Borrower or any of its Subsidiaries or any of their ERISA Affiliates of
incurring such a material liability to or on account of any Plan pursuant to the foregoing
provisions of ERISA and the Code; as of the Restatement Effective Date, no Plan is a Multiemployer
Plan; neither the Borrower nor any of its Subsidiaries nor any ERISA Affiliate has incurred any
liability under Section 515 of ERISA with respect to any Multiemployer Plan; neither the Borrower
nor any of its Subsidiaries nor any ERISA Affiliate has incurred or expects to incur any material
liability under Sections 4201, 4204 or 4212 of ERISA; to the best knowledge of the Borrower, any of
its Subsidiaries or any ERISA Affiliate, no Multiemployer Plan is insolvent or in reorganization
nor is any Multiemployer Plan reasonably expected to be in reorganization or terminated; no lien
imposed under the Code or ERISA on the assets of the Borrower or any of its Subsidiaries or any
ERISA Affiliate exists or is likely to arise on account of any Plan; and the Borrower and its
Subsidiaries do not maintain or contribute to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) which provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any employee pension benefit plan (as defined
in Section 3(2) of




-33-









 




ERISA) the obligations with respect to which could reasonably be expected to have a material
adverse effect on the ability of the Borrower to perform its obligations under this Agreement.




          (b) Each Foreign Pension Plan has been maintained in substantial compliance with its terms
and with the requirements of any and all applicable laws, statutes, rules, regulations and orders
and has been maintained, where required, in good standing with applicable regulatory authorities.
Neither the Borrower nor any of its Subsidiaries has incurred any material obligation in
connection with the termination of or withdrawal from any Foreign Pension Plan. The present value
of the accrued benefit liabilities (whether or not vested) under each Foreign Pension Plan,
determined as of the end of the Borrower’s most recently ended fiscal year on the basis of
actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets
of such Foreign Pension Plan allocable to such benefit liabilities.




          6.13 Subsidiaries. Schedule V hereto lists each Subsidiary of the Borrower, and the direct and
indirect ownership interest of the Borrower therein, in each case as of the Restatement Effective
Date. As of the Restatement Effective Date, the corporations listed on Schedule V were
the only Subsidiaries of the Borrower.




          6.14 Patents, etc. The Borrower and each of its Subsidiaries owns or holds a valid
license to use all material patents, trademarks, servicemarks, trade names, copyrights, licenses,
technology, know-how and formulas and other rights that are necessary for the operation of their
respective businesses as presently conducted.




          6.15 Compliance with Statutes; Environmental Matters, etc. (a) Each of the Borrower
and its Subsidiaries is in compliance, in all material respects, with all applicable material
statutes, regulations and orders of, and all applicable material restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including applicable Environmental Laws).




          (b) Neither the Borrower nor any of its Subsidiaries is liable for any material penalties,
fines or forfeitures for failure to comply with any of the foregoing referenced in clause (a)
above. All material licenses, permits, registrations or approvals required for the business of the
Borrower and its Subsidiaries, as conducted as of the Restatement Effective Date, under any
Environmental Law have been secured or have been timely applied for and the Borrower and each such
Subsidiary is in substantial compliance therewith. Neither the Borrower nor any of its Subsidiaries
is in any material respect in noncompliance with, breach of or default under any applicable writ,
order, judgment, injunction, or decree to which the Borrower or such Subsidiary is a party or which
would affect the ability of the Borrower or such Subsidiary to operate any Real Property and no
event has occurred and is continuing which, with the passage of time or the giving of notice or
both, would constitute a material noncompliance, breach of or default thereunder. As of the
Restatement Effective Date, there are no material Environmental Claims pending or, to the best
knowledge after due inquiry of the Borrower, threatened, against the Borrower or any of its
Subsidiaries or any Real Property owned or operated at any time by the Borrower or any of its
Subsidiaries. There are no facts, circumstances, conditions or occurrences on any such Real
Property or, to the best knowledge after due inquiry of the Borrower, on any property adjacent to
any such Real Property that could reasonably be expected (i) to form the basis of a material
Environmental Claim against the Borrower or any of its





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Subsidiaries or any such Real Property, or (ii) to cause such Real Property to be subject
to any restrictions on the ownership, occupancy, use or transferability of such Real Property
under any Environmental Law.




          (c) Hazardous Materials have not at any time been (i) generated, used, treated or stored on,
or transported to or from, any Real Property owned or operated by the Borrower or any of its
Subsidiaries except for quantities used or stored at any such Real Properties in material
compliance with all applicable Environmental Laws and required in connection with the normal
operation, use and maintenance of such Real Property (“Permitted Materials”) or (ii) Released on
any such Real Property where such occurrence or event could reasonably be expected to give rise to
a material Environmental Claim or to violate any Environmental Law. There are not now and never
have been any underground storage tanks located on any Real Property owned or operated by the
Borrower or any of its Subsidiaries which are not in material compliance with all Environmental
Laws or would form the basis of a material Environmental Claim.




          6.16 Properties. Each of the Borrower and its Subsidiaries has good and legal title to all
properties owned by it and valid and subsisting leasehold interests in all properties leased by it,
in each case, including all property reflected in the financial statements referred to in Section
6.10(b) (except as sold or otherwise disposed of since the date of the March 31, 2005 financial
statements in the ordinary course of business or as otherwise permitted by this Agreement) free and
clear of all Liens, other than Liens permitted by Section 8.02. Schedule II contains a true
and complete list of each Real Property owned and each Real Property leased by the Borrower and its
Subsidiaries on the Restatement Effective Date and the type of interest therein held by such
Person.




          6.17 Labor Relations; Collective Bargaining Agreements. (a) Set forth on Schedule
VI hereto is a list and description (including dates of termination) of all Collective
Bargaining Agreements between or applicable to the Borrower and any union, labor organization or
other bargaining agent in respect of the employees of the Borrower on the Restatement Effective
Date.




          (b) Neither the Borrower nor any of its Subsidiaries is engaged in any unfair labor practice
that is reasonably likely to have a Material Adverse Effect. There is (i) no unfair labor practice
complaint pending against the Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against it or any of its Subsidiaries, before the National Labor Relations
Board, and no grievance proceeding or arbitration proceeding arising out of or under any Collective
Bargaining Agreement is now pending against the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower, threatened against it or any of its Subsidiaries, (ii) no strike, labor
dispute, slowdown or stoppage is pending against the Borrower or any of its Subsidiaries or, to the
best knowledge of the Borrower, threatened against it or any of its Subsidiaries and (iii) to the
best knowledge of the Borrower, no union representation question exists with respect to the
employees of the Borrower or any of its Subsidiaries, except (with respect to any matter specified
in clause (i), (ii) or (iii) above, either individually or in the aggregate) such as could not
reasonably be likely to have a Material Adverse Effect.




          6.18 Indebtedness. Schedule VII sets forth a true and complete list of (x) all
Indebtedness (other than the loans under the Existing Credit Agreement) of the Borrower and





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each of its Subsidiaries outstanding as of March 31, 2005 and which is to remain outstanding
after the Restatement Effective Date and after giving effect to the Transaction and (y) all
agreements existing on March 31, 2005 and which are to remain outstanding after the Restatement
Effective Date and after giving effect to the Transaction pursuant to which the Borrower or any of
its Subsidiaries is entitled to incur Indebtedness (whether or not any condition to such incurrence
could be met) (collectively, as in effect and outstanding on March 31, 2005 and without giving
effect to any extension, renewal or refinancing thereof, the “Permitted Existing
Indebtedness”), in each case showing the aggregate principal amount thereof as of March 31,
2005 and the name of the respective borrower and any other entity which directly or indirectly
guaranteed such debt.




          6.19 Restrictions on Subsidiaries. There are no restrictions on the Borrower or any of
its Subsidiaries which prohibit or otherwise restrict (I) the transfer of cash or other assets (x)
between the Borrower and any of its Subsidiaries or (y) between any Subsidiaries of the Borrower or
(ii) the ability of the Borrower or any of its Subsidiaries to grant security interests to the
Banks in their respective assets, other than prohibitions or restrictions existing under or by
reason of (a) this Agreement or the other Credit Documents, (b) applicable law, (c) customary
non-assignment provisions entered into in the ordinary course of business and consistent with past
practices, (d) purchase money obligations for property acquired in the ordinary course of business,
so long as such obligations are permitted under this Agreement, (e) Liens permitted under Section
8.02 and any documents or instruments governing the terms of any Indebtedness or other obligations
secured by any such Liens, provided that such prohibitions or restrictions apply only to
the assets subject to such Liens or (f) the documents or instruments governing the terms of
Indebtedness of any Subsidiary outstanding under Section 8.03(g) to the extent restricting
dividends or other cash distributions by such Subsidiary to the Borrower or any other Subsidiary of
the Borrower.




          6.20 Transaction. At the time of consummation of each element of the Transaction, such
element shall have been consummated in accordance with the terms of the respective Credit Documents
and all applicable laws. At the time of consummation of each element of the Transaction, all
consents and approvals of, and filings and registrations with, and all other actions in respect of,
all governmental agencies, authorities or instrumentalities and other third parties required in
order to make or consummate such element of the Transaction shall have been obtained, given, filed
or taken and are or will be in full force and effect (or effective judicial relief with respect
thereto shall have been obtained).




          6.21 Insurance. Set forth on Schedule III hereto is a true and correct summary
of all property, casualty and liability insurance carried by the Borrower and its Subsidiaries on
and as of the Restatement Effective Date.




          6.22 Senior Notes. This Agreement constitutes the “Credit Agreement” as defined
in, and for all purposes of, the Senior Note Documents.




          SECTION 7. Affirmative Covenants. The Borrower hereto covenants and agrees that on
the Restatement Effective Date and thereafter for so long as this Agreement is in effect and until
the Commitments have terminated, no Letters of Credit are outstanding and the Loans,





-36-









 







Unpaid Drawings together with interest, Fees and all other Obligations incurred hereunder are paid
in full:




          7.01 Information Covenants. The Borrower will furnish to each Bank:





     (a) Annual Financial Statements. As soon as available and in any event within
105 days after the close of each fiscal year of the Borrower, the consolidated balance sheet
of the Borrower and its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and cash flows for such fiscal year, together with a
summary of sales and profits by operating groups prepared consistently with past practices
and procedures and in form reasonably satisfactory to the Administrative Agent for such
fiscal year, setting forth for such fiscal year, in comparative form, for each of such
consolidated financial statements and such summary the corresponding figures for the
preceding fiscal year; all of which shall be (I) in the case of such consolidated financial
statements and such summary, certified by the Chief Financial Officer of the Borrower to the
effect that such statements and summary fairly present in all material respects the
financial condition of the Borrower and its Subsidiaries, or such operating groups, as the
case may be, as of the dates indicated and the results of their operations and changes in
their cash flows for the periods indicated, and (II) in the case of such consolidated
financial statements, audited by Ernst & Young (or other independent certified public
accountants of recognized national standing acceptable to the Required Banks) whose opinion
shall not be qualified as to the scope of audit or as to the status of the Borrower together
with its Subsidiaries as a going concern, together with a certificate of the accounting firm
referred to above stating that in the course of its regular audit of the business of the
Borrower and its Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm has obtained no knowledge of any Default
or Event of Default (insofar as they relate to accounting or financial matters) which has
occurred and is continuing or. if in the opinion of such accounting firm such a Default or
Event of Default has occurred and is continuing, a statement as to the nature thereof.




     (b) Quarterly Financial Statements. As soon as available and in any event
within 60 days after the close of each of the first three quarterly accounting periods in
each fiscal, year of the Borrower, the consolidated balance sheet of the Borrower and its
Subsidiaries, as at the end of such quarterly period and the related consolidated statements
of income and cash flows for such quarterly period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly period, together with a summary of sales and
profits by operating groups prepared consistently with past practices and procedures and in form reasonably satisfactory to the Administrative Agent for such quarterly period and
for the elapsed portion of the fiscal year ended with the last day of such quarterly period,
and setting forth, in comparative form, for each of such consolidated financial statements
and such summary, the corresponding figures for the related periods in the prior fiscal
year; all of which shall be in reasonable detail and certified by the Chief Financial
Officer or other Senior Financial Officer of the Borrower to the effect that they fairly
present in all material respects the financial condition of the Borrower and its
Subsidiaries as of the dates indicated and the results of their operations and changes in
their cash flows for the



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periods indicated, subject to changes resulting from audit and normal year-end audit adjustments.




     (c) Officer’s Certificates. At the time of the delivery of the financial statements
provided for in Section 7.01(a) and (b), a certificate of the Borrower signed by its Chief
Financial Officer or, in the case of any certificate delivered with financial statements delivered
pursuant to Section 7.01 (b), any other Senior Financial Officer, to the effect that no Default or
Event of Default exists or, if any Default or Event of Default does exist, specifying the nature
and extent thereof, which certificate shall set forth the calculations required to establish
whether the Borrower and its Subsidiaries were in compliance with the provisions of Sections 8.01
through 8.06, inclusive and Sections 8.09 through 8.10, inclusive, as at the end of such fiscal
quarter or year, as the case may be.




     (d) Notice of Default or Litigation Promptly, and in any event within five Business
Days after an Authorized Officer of the Borrower obtains knowledge thereof, notice of (x) the
occurrence of any event which constitutes a Default or Event of Default, which notice shall specify
the nature thereof, the period of existence thereof and what action the Borrower or its respective
Subsidiary proposes to take with respect thereto and (y) the commencement of, or threat of, or any
significant development in any litigation or governmental proceeding pending against the Borrower
or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect or
a material adverse effect on the ability of the Borrower to perform its obligations hereunder or
under any other Credit Document.




     (e) Auditors’ Reports. Promptly upon receipt thereof, a copy of any letter
submitted to the Borrower or any Material Subsidiary of the Borrower by its independent accountants
with respect to any material weakness as to internal control noted by such independent accountants
in connection with any audit made by them of the books of the Borrower or such Material Subsidiary.




     (f) Environmental Matters. Promptly upon, and in any event within 15 Business Days
after, an Authorized Officer or any environmental compliance officer of the Borrower obtains
knowledge thereof, notice of any of the following matters:




     (i) any pending or threatened Environmental Claim against the Borrower or any of its
Subsidiaries or any Real Property owned or operated at any time by the Borrower or any of
its Subsidiaries that is or could reasonably be expected to result in a liability in
excess of $1,000,000;




     (ii) any condition or occurrence on or arising from any Real Property owned or
operated at any time by the Borrower or any of its Subsidiaries that (a) results in
noncompliance by the Borrower or such Subsidiary with any applicable Environmental Law, or
(b) could reasonably be anticipated to form the basis of an Environmental Claim against
the Borrower or such Subsidiary or any such Real Property that is or could reasonably be
expected to result in a liability in excess of $1,000,000;



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     (iii) any condition or occurrence on any Real Property owned or operated
at any time by the Borrower or any of its Subsidiaries that could reasonably be
anticipated to cause such Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability by the Borrower or any of its
Subsidiaries of such Real Property under any Environmental Law; and




     (iv) the taking of any removal or remedial action in response to the actual
or alleged presence of any Hazardous Material on any Real Property owned or
operated at any time by the Borrower or any of its Subsidiaries.




All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the response thereto
of the Borrower or such Subsidiary. In addition, the Borrower will provide the Banks with
copies of all material written communications between the Borrower or any of its
Subsidiaries and any government or governmental agency relating to Environmental Laws, all
communications between the Borrower or any of its Subsidiaries and any Person relating to
Environmental Claims, and such detailed reports of any Environmental Claim, in each case as
may reasonably be requested in writing from time to time by the Administrative Agent or the
Required Banks.




     (h) Other Information. (i) Promptly upon transmission thereof, copies of any
filings and registrations with, and reports to, the SEC by the Borrower or any of its
Subsidiaries, copies of all press releases, copies of all financial statements, proxy
statements, notices and reports that the Borrower or any of its Subsidiaries shall send to
the holders (or any trustee, agent or other representative therefor) of the Senior Notes or
any other Indebtedness of the Borrower or any of its Subsidiaries pursuant to the terms
governing such Indebtedness (in each case, to the extent not theretofore delivered to the
Banks pursuant to this Agreement) and copies of all written presentations and reports
generally sent to analysts by the Borrower or any of its Subsidiaries, (ii) promptly and in
any event within five Business Days following a request from the Administrative Agent or
any Bank for same, a copy of the annual and quarterly statements furnished to the Borrower
with respect to its Permitted Existing Investments listed as Items 1 and 2 on Schedule
IX hereto, and (iii) with reasonable promptness, such other information or documents
(financial or otherwise) as the Administrative Agent on its own behalf or on behalf of the
Required Banks may reasonably request from time to time.



          7.02 Books, Records and Inspections. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and correct entries in
conformity with GAAP (or, in the case of any Foreign Subsidiary, in accordance with local
accounting standards) and all requirements of law shall be made of all dealings and transactions in
relation to its business and activities. The Borrower will, and will cause each of its Subsidiaries
to, permit, upon notice to the Chief Financial Officer or any other Authorized Officer of the
Borrower, officers and designated representatives of the Administrative Agent, any Syndication
Agent or any Bank to visit and inspect any of the properties or assets of the Borrower and any of
its Subsidiaries in whomsoever’s possession, and to examine the books of account and other
financial and operating records (including, without limitation, any “letters of




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material weakness” submitted by independent accountants) of the Borrower and any of its
Subsidiaries and discuss the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with, and be advised as to the same by, the officers and independent accountants of
the Borrower or such Subsidiary, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent, any Syndication Agent or any Bank may request.




          7.03 Payment of Taxes. The Borrower will pay and discharge, and will cause each of its
Subsidiaries to pay and discharge, all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any properties belonging to it, prior to the
date on which penalties attach thereto, and all lawful claims for sums that have become due and
payable which, if unpaid, might become a Lien not otherwise permitted under Section 8.02(a);
provided, that neither the Borrower nor any of its subsidiaries shall be required to pay
any such tax, assessment, charge, levy or claim which is being contested in good faith and by
proper proceedings if it has maintained adequate reserves with respect thereto in accordance with
GAAP.




          7.04 Corporate Franchises. The Borrower will, and will cause each of its Subsidiaries
to, do or cause to be done, all things necessary to preserve and keep in full force and effect its
existence, rights, franchises, intellectual property and authority to do business, provided
that any transaction permitted by Section 8.01 will not constitute a breach of this Section
7.04.




          7.05 Compliance with Statutes, Environmental Laws, etc. (a) The Borrower will, and will
cause each of its Subsidiaries to, comply, in all material respects, with all applicable material
statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its
property (including applicable Environmental Laws). The Borrower will promptly pay or cause to
be paid all costs and expenses incurred in such compliance, and will keep or cause to be kept all
such Real Property free and clear of any Liens imposed pursuant to any Environmental Laws. Neither
the Borrower nor any of its Subsidiaries will generate, use, treat, store, Release or dispose of,
or permit the generation, use, treatment, storage, Release or disposal of Hazardous Materials on
any Real Property now or hereafter owned by the Borrower or any of its Subsidiaries, or transport
or permit the transportation, of Hazardous Materials to or from any such Real Property, except for
Permitted Materials. If required to do so under any applicable Environmental Law, the Borrower
agrees to undertake, and agrees to cause each of its Subsidiaries to undertake, any cleanup,
removal, remedial or other action necessary to remove and clean up any Hazardous Materials from any
Real Property in accordance with the requirements of all applicable Environmental Laws and in
accordance with orders and directives of all governmental authorities; provided that
neither the Borrower nor any of its Subsidiaries shall be required to take any such action where
same is being contested by appropriate legal proceedings in good faith by the Borrower or such
Subsidiary.




          (b) At the request of the Administrative Agent or the Required Banks, at any time and from
time to time (i) after an Event of Default has occurred and is continuing, (ii) after the Banks
receive notice under Section 7.01(f) of any event for which notice is required to be delivered for
any such Real Property, (iii) after the acquisition of any Real Property by the Borrower or any of
its Subsidiaries subsequent to the Restatement Effective Date or (iv) if required by law, the
Borrower will provide, at the Borrower’s sole cost and expense, an





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environmental site assessment report concerning any Real Property owned, operated or leased by the
Borrower or any of its Subsidiaries, prepared by an environmental consulting firm approved by the
Administrative Agent, indicating the presence or absence of any actual or threatened noncompliance
with Environmental Laws and permits required thereunder or presence or absence of any Release of
Hazardous Materials and the potential cost of any removal or remedial action in connection with
any Hazardous Materials on such Real Property. If the Borrower fails to provide the same within 60
days after any such request therefor made by the Administrative Agent or the Required Banks, the
Administrative Agent may order the same, and the Borrower shall grant and hereby grants to the
Administrative Agent, the Syndication Agents and the Banks and their agents access to such Real
Property at all reasonable times and specifically grants the Administrative Agent, the Syndication
Agents and the Banks an irrevocable nonexclusive license, subject to the rights of tenants, to
undertake such an assessment all at the Borrower’s sole expense.




          7.06 ERISA. As soon as possible and, in any event, within 10 days after the Borrower
or any of its Subsidiaries or any ERISA Affiliate knows or has reason to know of the occurrence of
any of the following, the Borrower will deliver to each of the Banks a certificate of the Borrower
signed by its Chief Financial Officer or another Senior Financial Officer setting forth details as
to such occurrence and the action, if any, which the Borrower, such Subsidiary or such ERISA
Affiliate is required or proposes to take, and, at such times as any such notices are required to
be filed or given, copies of any notices required or proposed to be given to or filed with or by
the Borrower, such Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant or the Plan
administrator with respect thereto: that a Reportable Event has occurred; that an accumulated
funding deficiency has been incurred or an application described in Section 4043(c) (2), (6), (10)
or (11) of ERISA, with respect to which notice to the PBGC is not waived, has been made to the
Secretary of the Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period under Section 412 of
the Code with respect to a Plan; that a contribution required to be made to a Plan or Foreign
Pension Plan has not been timely made; that a Plan has been terminated involuntarily or in a
distress termination, reorganized, partitioned or declared insolvent under Title IV of ERISA; that
a lien has arisen on the assets of the Borrower or any of its Subsidiaries or any ERISA Affiliate
under ERISA or the Code with respect to a Plan: that proceedings have been instituted to terminate
or appoint a trustee to administer a Plan; that the Borrower, any of its Subsidiaries or any ERISA
Affiliate have incurred any liability (including any indirect, contingent or secondary liability)
to or on account of the termination of or withdrawal from a Plan under Section 4062, 4063, 4064, or
4201 of ERISA or with respect to a Plan under Section 401(a)(29), 4971 or 4975 of the Code or
Section 409 or 502(i) or 502(l) of ERISA; which liability in each case could reasonably be expected
to have a material adverse effect on the ability of the Borrower to perform its obligations under
this Agreement; or that the Borrower or any of its Subsidiaries have incurred any liability
pursuant to any employee welfare benefit plan (as defined in Section 3(1) of ERISA) that provides
benefits to retired employees or other former employees (other than as required by Section 601 or
ERISA) or any employee pension benefit plan (as defined in Section 3(2) of ERISA) which liability
could reasonably be expected to have a material adverse effect on the ability of the Borrower to
perform its obligations under this Agreement. At the request of any Bank, the Borrower will deliver
to such Bank a complete copy of the annual report on Internal Revenue Service Form 5500 series of
each Plan (other than a Multiemployer Plan) required to be filed with the Department of Labor. In





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addition to any certificates or notices delivered to the Banks pursuant to the first sentence
hereof, copies of any notices received by the Borrower or any of its Subsidiaries or any ERISA
Affiliate with respect to any Plan or Foreign Pension Plan which notice threatens, refers to or
pertains to any material liability or any potential material liability of any such party, shall be
delivered to the Banks no later than 10 days after the date such notice has been received by the
Borrower or such Subsidiary or such ERISA Affiliate, as applicable.




          7.07 Good Repair. The Borrower will, and will cause each of its Subsidiaries to, ensure
that its properties and equipment used or useful in its business in whomsoever’s possession they
may be, are kept in good repair, working order and condition, normal wear and tear excepted and
that from time to time there are made to such properties and equipment all needful and proper
repairs, renewals, replacements, extensions, additions, betterments and improvements thereto, to
the extent and in the manner customary for companies in similar businesses.




          7.08 End of Fiscal Years; Fiscal Quarters. The Borrower will, for financial reporting
purposes, cause (i) each of its fiscal years to end on December 31 of each year and (ii) each of its
fiscal quarters to end on March 31, June 30, September 30 and December 31 of each year.




          7.09
Maintenance of Property; Insurance. The Borrower will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect insurance in such amounts, covering
such risks and liabilities and with such deductibles or self-insured retentions as are in
accordance with normal industry practice and all applicable laws.




          7.10 Performance of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, perform all of its obligations under the terms of each mortgage, indenture,
security agreement and other debt instrument by which it is bound, except such non-performance as
could not individually or in the aggregate reasonably be expected to have a Material Adverse
Effect.




          7.11 Use of Proceeds. All proceeds of the Loans shall be used as provided in Section
6.05.




          7.12 Ownership of Subsidiaries. The Borrower will, at all times, maintain, directly
or indirectly, ownership of 100% of the capital stock of its Subsidiaries, except (i) to the extent
100% of the capital stock of any such Subsidiary is sold, transferred or disposed of in a
transaction permitted by Section 8.01; (ii) any Subsidiary constituting a Permitted Joint Venture;
and (iii) for directors qualifying shares.




          7.13 Senior Notes Change of Control. Upon the occurrence of any Change of Control, if
an offer to repurchase the Senior Notes or any Permitted Refinancing Debt is required to be made as
a result of such Change of Control, the Borrower will take all actions, including the giving of
notices required thereunder and the setting of the date for the repurchases of Senior Notes or
Permitted Refinancing Debt, as is within its power to insure that the date for payment of the
purchase price for all Senior Notes or Permitted Refinancing Debt that must be repurchased





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as a result of such Change of Control is no earlier than the date on which the Loans
hereunder become due and payable as a result of such Change of Control.




          SECTION 8. Negative Covenants. The Borrower hereby covenants and agrees that on the
Restatement Effective Date and thereafter for so long as this Agreement is in effect and until the
Commitments have terminated, no Letters of Credit are outstanding and the Loans, Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder, are paid in full:




          8.01 Consolidation, Merger, Sale or Purchase of Assets, etc. The Borrower will not,
and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs, or
enter into any transaction of merger or consolidation, sell or otherwise dispose of all,
substantially all or any part of its property or assets (other than inventory in the ordinary
course of business), or enter into any partnerships, joint ventures or sale-leaseback
transactions, or purchase, lease or otherwise acquire (in one transaction or a series of related
transactions) all or any part of the property or assets of any Person (other than purchases or
other acquisitions of inventory in the ordinary course of business) or agree to do any of the
foregoing at any future time, except that the following shall be permitted:





     (a) so long as no Default or Event of Default then exists or would result therefrom,
Capital Expenditures may be made by the Borrower and its Subsidiaries in the ordinary course
of their respective businesses;




     (b) advances, investments and loans (including Joint Venture Investments in Permitted
Joint Ventures) may be made to the extent permitted pursuant to Section 8.05;




     (c) Dividends may be paid to the extent permitted by Section 8.06;




     (d) the Borrower and its Subsidiaries may lease (as lessee) real or personal property
in the ordinary course of business and otherwise in compliance with this Agreement so long
as such lease does not create Capitalized Lease Obligations except as otherwise permitted
by Section 8.03(b);




     (e) each of the Borrower and its Subsidiaries may, in the ordinary course of business
and consistent with past practices, sell, lease (as lessor) or otherwise dispose of any of
its equipment to the extent that (x) any such sale, lease or disposition shall be in an
amount at least equal to the fair market value thereof (as determined in good faith by
senior management of the Borrower), and (y) any such sale shall be solely for cash or for
cash, promissory notes and/or contingent payment obligations of, and/or equity interests in,
the transferee or issuer, provided that the sum of (A) the aggregate principal
amount of promissory notes outstanding at any time accepted by the Borrower and/or its
Subsidiaries from all such sales, leases and dispositions and all sales and dispositions
effected pursuant to Sections 8.01(f) and (g), plus (B) the aggregate initial value
of all such contingent payment obligations (as determined in good faith by senior management
of the Borrower) received by the Borrower and/or its Subsidiaries from all such sales,
leases and dispositions and all sales and dispositions effected pursuant to Sections 8.01
(f) and (g), plus (C) the aggregate initial value of all equity securities (as
determined in good




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faith by senior management of the Borrower) received by the Borrower and/or any of its
Subsidiaries from all such sales, leases and dispositions and all sales and dispositions effected
pursuant to Sections 8.01 (f) and (g), shall not at any time exceed 20% of the Consolidated Net
Worth of the Borrower at such time;




     (f) the Borrower and its Subsidiaries may sell or otherwise dispose of non-strategic lines of
their respective businesses (as so determined in good faith by senior management of the Borrower)
(any such sale permitted by this clause (f), a ‘Permitted Line of Business Sale”), so long
as (i) to the extent any such Permitted Line of Business Sale is of the capital stock of any
Subsidiary of the Borrower such Permitted Line of Business Sale must be of 100% of such capital
stock owned by the Borrower, (ii) any such sale shall be solely for cash, or for cash, promissory
notes and/or contingent payment obligations of, and/or equity interests in, the transferee or
issuer, provided that the sum of (A) the aggregate initial principal amount of promissory
notes accepted by the Borrower and/or its Subsidiaries from all such sales and dispositions and all
sales, leases and dispositions effected pursuant to
Sections 8.01(e) and (g) plus (B) the aggregate
initial value of all such contingent payment obligations (as determined in good faith by senior
management of the Borrower) received by the Borrower and/or its Subsidiaries from all such sales
and dispositions and all sales, leases and dispositions effected pursuant to Sections 8.01(e) and
(g) plus (C) the aggregate initial value of all equity securities (as determined in good
faith by senior management of the Borrower) received by the Borrower and/or any of its Subsidiaries
from all such sales and dispositions and all sales, leases and dispositions effected pursuant to
Sections 8.01(e) and (g), shall not at any time exceed 20% of the Consolidated Net Worth of the
Borrower at such time, (iii) the aggregate book value (as determined in good faith by senior
management of the Borrower) of all assets subject to all Permitted Line of Business Sales pursuant
to this clause (f) in any fiscal year of the Borrower shall not
exceed $60,000,000, (iv) no Default
or Event of Default exists (both before and after giving effect to such Permitted Line of Business
Sale), (v) the Borrower shall have given the Administrative Agent and the Banks at least 10
Business Days prior written notice of the closing of such Permitted Line of Business Sale, (vi) to
the extent that the sum of (A) the aggregate book value (as determined in good faith by senior
management of the Borrower) of all of the assets subject to such Permitted Line of Business Sale
plus (B) the aggregate book value (as determined in good faith by senior management of the
Borrower) of all of the assets subject to all other Permitted Line of Business Sales consummated in
the same fiscal year as such Permitted Line of Business Sale exceeds $30,000,000, the Borrower in
good faith shall believe, based on calculations made by the Borrower
on a pro forma basis
(the pro forma, adjustments made by the Borrower in making the calculations pursuant to
this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent and
the Required Banks) after giving effect to the respective Permitted Line of Business Sale as if
such Permitted Line of Business Sale had been consummated on the date occurring twelve months prior
to the last day of the most recently ended fiscal quarter of the Borrower, that the covenants
contained in Sections 8.09 through 8.10, inclusive, of this Agreement would have been met for the
one-year period ended on the last day of such fiscal quarter, (vii) to the extent that the sum of
(A) the aggregate book value (as determined in good faith by senior management of the Borrower) of
all of the assets subject to such Permitted Line of Business Sale plus (B) the aggregate
book value (as




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determined in good faith by senior management of the Borrower) of all of the assets subject to all
other Permitted Line of Business Sales consummated in the same fiscal year as such Permitted Line
of Business Sale exceeds $30,000,000, the Borrower in good faith shall believe, based on
calculations made by the Borrower, on a pro forma basis after giving effect to the
respective Permitted Line of Business Sale, that the covenants
contained in Sections 8.09 through
8.10, inclusive, will continue to be met for the one-year period following the date of the
consummation of the respective Permitted Line of Business Sale and (viii) the Borrower shall have
delivered to the Administrative Agent an officer’s certificate executed by a Senior Financial
Officer of the Borrower, certifying, to the best of his knowledge, compliance with the
requirements of preceding clauses (i) through (vii) and, to the extent that pro forma
calculations are required by the preceding clauses (vi) and (vii), then such certificate shall
also contain such pro forma calculations (including, without limitation, any currency
exchange calculations required in connection therewith as a result of the incurrence of Revolving
Loans or Competitive Bid Loans or the issuance of Letters of Credit, in each case denominated in
an Approved Alternate Currency). The consummation of each Permitted Line of Business Sale shall be
deemed to be a representation and warranty by the Borrower that all conditions thereto have been
satisfied and that same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and warranty for all purposes
hereunder, including, without limitation, Sections 5.02 and 9;




     (g) the Borrower and its Subsidiaries may, in the ordinary course of business and consistent
with past practices, sell or otherwise dispose of any of its Real Property to the extent that
(w) any such sale or disposition shall be in an amount at least equal to the fair market
value thereof (as determined in good faith by senior management of the Borrower), (x) any such sale
shall be solely for cash, or for cash, promissory notes and/or contingent payment obligations of,
and/or equity interests in, the transferee or issuer, provided that the sum of (A) the
aggregate initial principal amount of promissory notes accepted by the Borrower and/or its
Subsidiaries from all such sales and dispositions and all sales, leases and dispositions effected
pursuant to Sections 8.01 (e) and (f) plus (B) the aggregate initial value of all such
contingent payment obligations (as determined in good faith by senior management of the Borrower)
received by the Borrower and/or its Subsidiaries from all such sales and dispositions and all
sales, leases and dispositions effected pursuant to Sections 8.01(e) and (f) plus (C) the
aggregate initial value of all equity securities (as determined in good faith by senior management
of the Borrower) received by the Borrower and/or any of its Subsidiaries from all such sales and
dispositions and all sales, leases and dispositions effected pursuant to Sections 8.01(e) and (f),
shall not at any time exceed 20% of the Consolidated Net Worth of the Borrower at such time, and
(y) the fair market value of (A) any parcel of Real Property subject to a sale pursuant to this
clause (g) (as determined in good faith by senior management of the Borrower) shall not exceed
$10,000,000 per sale, and (B) all Real Property subject to sales pursuant to this clause (g) (as
determined in good faith by senior management of the Borrower) shall not exceed $50,000,000 in the
aggregate for all such sales;




     (h) the Borrower and its Subsidiaries may acquire Reinvestment Assets with the proceeds from
any Reinvestment Event;



-45-









 






     (i) the Borrower and its Subsidiaries may acquire (other than on a hostile basis) assets
constituting all or substantially all of a business, business unit, division or product line of any
Person not already a Subsidiary of the Borrower or capital stock of any such Person (including any
such acquisition by way of merger or consolidation) (any such acquisition permitted by this clause
(i), a “Permitted Acquisition”), so long as in the case of any such Permitted Acquisition (i) the
only consideration paid by the Borrower and its Subsidiaries in respect of such Permitted
Acquisition consists of cash, Common Stock, Indebtedness secured by Liens permitted by Section
8.02(g), to the extent permitted by Section 8.03(b) and/or Permitted Earn-Out Debt to the extent
permitted by Section. 8.03(1), (ii) no Default or Event of Default then exists (both before and
after giving effect to such Permitted Acquisition), (iii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in all material
respects with the same effect as though such representations and warranties had been made on and as
of the date of such Permitted Acquisition (both before and after giving effect thereto), unless
stated to relate to a specific earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date, (iv) such assets are to
be employed in, and/or such Person was at the time of such acquisition engaged in, the businesses
permitted pursuant to Section 8.08, (v) to the extent that such Permitted Acquisition is of the
capital stock of another Person such Permitted Acquisition must be of 100% of such capital stock
(except for directors qualifying shares) and all of the provisions of Section 8.04 to the extent
applicable shall have been complied with in respect of such Permitted Acquisition, (vi) the
Borrower or such Subsidiary is the surviving corporation of any Permitted Acquisition structured as
a merger or consolidation, and (vii) with respect to each Permitted Acquisition, (A) the Borrower
shall have given the Administrative Agent and the Banks at least 5 Business Days prior written
notice of the closing of such Permitted Acquisition, (B) the Borrower in good faith shall believe,
based on calculations made by the Borrower, on a pro forma basis after giving effect to the
respective Permitted Acquisition, that the covenants contained in Sections 8.09 through 8.10,
inclusive, will continue to be met for the one-year period following the date of the consummation
of the respective Permitted Acquisition and (C) if requested by the Administrative Agent or the
Required Banks, the Borrower shall have delivered to the Administrative Agent an officer’s
certificate executed by a Senior Financial Officer of the Borrower, certifying, to the best of his
knowledge, compliance with the requirements of clauses (i) through (vii) of this Section 8.01(i)
and containing the pro forma calculations required by the preceding clause (vii)(B),
including, without limitation, any currency exchange calculations required in connection therewith
as a result of the incurrence of Revolving Loans or Competitive Bid Loans or the issuance of
Letters of Credit, in each case denominated in an Approved Alternate Currency; provided,
that the provisions of the preceding clauses (vii)(A), (vii)(B) and (vii)(C) (to the extent
requiring pro forma calculations) shall be applicable only to the extent that either (x)
the sum of (I) the Permitted Acquisition Amount in respect of such Permitted Acquisition
plus II the aggregate fair market value (determined as of the proposed date of
consummation of such Permitted Acquisition in good faith by senior management of the Borrower) of
any Common Stock issued as consideration in connection with such Permitted Acquisition, exceeds
$30,000,000, or (y) such Permitted Acquisition does not meet the criteria, set forth in clause (x)
above and the sum of (I) the Permitted Acquisition




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Amount in respect of such Permitted Acquisition plus (II) the Permitted Acquisition Amount
in respect of all other Permitted Acquisitions consummated in the same fiscal year of the
Borrower as such proposed Permitted Acquisition is to be consummated (but excluding
Permitted Acquisitions meeting the criteria set forth in clause (x) above) plus (III) the
aggregate fair market value (determined as of the proposed date of consummation of such
Permitted Acquisition in good faith by senior management of the Borrower) of any Common
Stock issued as consideration in connection with such Permitted Acquisition and all other
Permitted Acquisitions consummated in the same fiscal year of the Borrower as such proposed
Permitted Acquisition is to be consummated (but excluding any Permitted Acquisitions meeting
the criteria set forth in clause (x) above), exceeds $30,000,000; and




     (j) the Borrower and its Subsidiaries may transfer accounts receivable and related
assets pursuant to the Permitted Receivables Securitization Program.



          8.02
Liens. The Borrower will not, and will not permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets
of any kind (real or personal, tangible or intangible) of the Borrower or any of its Subsidiaries,
whether now owned or hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable or notes with recourse to the Borrower or any of its
Subsidiaries) or assign any right to receive income, or file or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar recording or notice
statute, except:





     (a) inchoate Liens for taxes not yet due or Liens for taxes being contested in good
faith and by appropriate proceedings for which adequate reserves (in the good faith judgment
of the management of the Borrower) have been established in accordance with GAAP;




     (b) Liens (other than any Lien imposed by ERISA) in respect of property or assets of
the Borrower or any of its Subsidiaries imposed by law which were incurred in the ordinary
course of business and which do not secure Indebtedness for borrowed money, such as
carriers’, warehousemen’s and mechanics’ Liens, statutory landlord’s Liens, and other
similar Liens arising in the ordinary course of business, and (x) which do not in the
aggregate materially detract from the value of such property or assets or materially impair
the use thereof in the operation of the business of the Borrower or such Subsidiary or (y)
which are being contested in good faith by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the property or asset subject to such
Lien;




     (c) Liens, if any, created by or pursuant to this Agreement or the other Credit
Documents;




     (d) Liens on the assets of the Borrower and its Subsidiaries (excluding Liens permitted
under Section 8.02(j)) created prior to, but that will remain outstanding on and after, the
Restatement Effective Date (after giving effect to the Transaction) and listed,




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and the property subject thereto described on Schedule VIII hereto, without giving effect
to any subsequent extensions or renewals thereof (“Permitted
Liens”);




     (e) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the
ordinary course of business (x) in connection with workers’ compensation,
unemployment insurance and other types of social security, or (y) to secure the performance
of tenders, statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations incurred in
the ordinary course of business (exclusive of obligations in respect of borrowed money),
provided that the aggregate amount of cash and the fair market value of the property
encumbered by Liens described in this clause (y) shall not exceed $1,000,000;




     (f) leases or subleases granted to third Persons not interfering with the ordinary
course of business of the Borrower or any of its Subsidiaries;




     (g) Liens arising pursuant to purchase money mortgages securing Indebtedness
representing the purchase price (or financing of the purchase price within 90 days after the
respective purchase) of property or other assets acquired by the Borrower or any of its
Subsidiaries after the Restatement Effective Date, provided that (i) any such Liens
attach only to the assets so purchased, (ii) the Indebtedness secured by any such Lien does
not exceed 100% of the lesser of the fair market value or the purchase price of the assets
being purchased at the time of the incurrence of such Indebtedness and (iii) the
Indebtedness secured thereby is permitted by Section 8.03(b);




     (h) easements, rights-of-way, restrictions, encroachments and other similar charges or
encumbrances on the property of the Borrower or any of its Subsidiaries arising in the
ordinary course of business and not materially interfering with the conduct of the business
of the Borrower or any such Subsidiary;




     (i) Liens on property of the Borrower or any of its Subsidiaries subject to, and
securing only, Capitalized Lease Obligations to the extent such Capitalized Lease
Obligations are permitted by Section 8.03(b), provided, that such Liens only secure
the payment of Indebtedness arising under such Capitalized Lease Obligation and the Lien
encumbering the asset giving rise to the Capitalized Lease Obligation and the proceeds
thereof do not encumber any other asset of the Borrower or any of its Subsidiaries;




     (j) Liens arising from precautionary UCC (or other similar recording or notice
statutes) financing statement filings regarding operating leases permitted pursuant to this
Agreement; and




     (k) Liens on accounts receivable and related assets subject to the Permitted
Receivables Securitization Program.



          8.03
Indebtedness. The Borrower will not, and will not permit any of its Subsidiaries
to, contract, create, incur, assume or suffer to exist any Indebtedness (including, without
limitation, off balance sheet debt and receivables financings), except:





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     (a) Indebtedness incurred pursuant to this Agreement and the other Credit Documents;




     (b) Indebtedness evidenced by Capitalized Lease Obligations (including without limitation,
such Capitalized Lease Obligations constituting the Permitted Existing Indebtedness described as
item 5 of Schedule VII), and other Indebtedness secured by Liens permitted by Section
8.02(g), of the Borrower or any of its Subsidiaries, so long as (x) the sum of the aggregate
principal amount of all such Indebtedness outstanding at such time and the aggregate Capitalized
Lease Obligations under all Capital Leases entered into pursuant to this clause (b) outstanding at
such time does not exceed $20,000,000 in the aggregate at any time outstanding and (y) at the time
of the incurrence of any such Indebtedness, such Indebtedness is permitted to be incurred pursuant
to the first paragraph of Section 1008 of the Senior Note Indenture;




     (c) Indebtedness under any Permitted Interest Rate Protection Agreement;




     (d) Indebtedness evidenced by Intercompany Loans to the extent permitted by Section 8.05(f);




     (e) Indebtedness under any Permitted Currency Agreement;




     (f) Indebtedness under any Permitted Commodities Agreement;




     (g)
Indebtedness in addition to that expressly permitted elsewhere hereunder (both secured and
unsecured) of Subsidiaries of the Borrower at any time so long as such Indebtedness does not exceed
10% of the Consolidated Net Worth of the Borrower at anytime.




     (h) Permitted Existing Indebtedness of the Borrower evidenced by the Senior Notes pursuant to
the Senior Note Documents, in an aggregate principal amount not to exceed $225,000,000 (as reduced
by any repayments of principal thereof) as described as item 4 on Schedule VII;




     (i) Permitted Refinancing Debt of the Borrower;




     (j) Indebtedness of the Borrower or any of its Subsidiaries arising in connection with the
entering into of any take-or-pay contract for supplies, packaging materials or other similar
materials entered into in the ordinary course of business, consistent with the practices of the
Borrower and its Subsidiaries prior to the Restatement Effective Date, provided that the
aggregate amount payable under any such take-or-pay contract shall not exceed $1,000,000;




     (k) Indebtedness of the Borrower consisting of borrowings against the cash value of the COLI
Policies;




     (l) Indebtedness of the Borrower or any of its Subsidiaries which constitutes Permitted
Earn-Out Debt in amounts not to exceed, and in accordance with, the requirements of Section
8.01(i) and only to the extent that any such Permitted Earn-Out




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Debt is paid in full within six months after the date upon which such Permitted Earn-Out
Debt is determinable;




     (m) outstandings under the Permitted Receivables Securitization Program to the extent
constituting Indebtedness in an aggregate principal amount not to exceed $125,000,000;




     (n) additional unsecured Indebtedness of the Borrower not otherwise permitted pursuant
to this Section 8.03 not exceeding in aggregate principal amount at any one time
outstanding $15,000,000; and




     (o) additional Indebtedness of the Borrower not otherwise permitted hereunder;
provided that (A) in no event shall the final maturity of such Indebtedness occur
prior to the Final Maturity Date, (B) in no event shall such Indebtedness have a shorter
average life than the Loans hereunder, (C) in no event shall such Indebtedness contain
terms and conditions (including, without limitation, with respect to the obligor and
guarantors, if any, in respect of such Indebtedness, prepayment and redemption provisions,
covenants, defaults, security, remedies and, if applicable, subordination provisions) less
favorable to the Borrower or to the Banks than the terms and conditions of this Agreement
and the other Credit Documents, (D) in no event shall such Indebtedness contain terms and
conditions requiring repayment, prepayment or amortization of such Indebtedness, or any
part thereof, prior to the Final Maturity Date, (E) at the time of incurrence thereof (both
before and after giving effect thereto) no Default or Event of Default then exists, (F) the
Borrower in good faith shall believe, based on calculations made by the Borrower, on a
pro forma basis after giving effect to the respective Indebtedness, that the
covenants contained in Sections 8.09 through 8.10, inclusive, will continue to be met for
the one-year period following the date of the incurrence of the Indebtedness pursuant to
this Section 8.03(o) (any Indebtedness issued pursuant to this Section 8.03(o),
“Additional Indebtedness”), and (G) all of the documents evidencing or governing
the terms of such Indebtedness are delivered to the Banks prior to the incurrence of such
Indebtedness, and all of the terms and conditions thereof are in form and substance
reasonably satisfactory to the Administrative Agent provided further, that, the
aggregate principal amount of any such Additional Indebtedness incurred pursuant to this
Section 8.03(o) shall not exceed $250,000,000 at any time outstanding.



          8.4
Limitation on the Creation of Subsidiaries. Notwithstanding anything to the
contrary contained in this Agreement, the Borrower will not, and will not permit any Subsidiary to,
establish, create or acquire after the Restatement Effective Date any Material Subsidiary, except
the Borrower or any of its Subsidiaries may create, establish or acquire (x) Permitted Joint
Ventures in accordance with Section 8.05 and the definition thereof and (y) a new Material
Subsidiary of the Borrower which is a Wholly-Owned Subsidiary of the Borrower, provided,
that at least five Business Days’ prior written notice thereof is given to the Administrative Agent
and the Banks.




          8.5
Advances, Investments and Loans. The Borrower will not, and will not permit any of
its Subsidiaries to, lend money or extend credit or make advances to any Person, or





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purchase or acquire any stock, obligations or securities of, or any other interest in, or make any
capital contribution to any Person, except:





     (a) the Borrower and its Subsidiaries may invest in cash and Cash Equivalents, and
Foreign Subsidiaries may invest in Permitted Foreign Investments;




     (b) the Borrower and its Subsidiaries may acquire and hold receivables owing to them,
if created or acquired in its ordinary course of business and payable or dischargeable in
accordance with its customary trade terms of the Borrower or such Subsidiary, as the case
may be;




     (c) loans and advances to employees for moving and travel expenses and other similar
expenses, in each case incurred in the ordinary course of business, shall be permitted;




     (d) the Permitted Interest Rate Protection Agreement shall be permitted;




     (e) the Borrower and its Subsidiaries may acquire and own investments (including debt
obligations) received in connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising from ordinary business transactions;




     (f) the Borrower may make intercompany loans and advances to its Subsidiaries (other
than to the Captive Insurance Subsidiary unless required by applicable law or required to
fund its insurance operations), and any Subsidiary of the Borrower may make intercompany
loans and advances to any other Subsidiary (other than to the Captive Insurance Subsidiary
unless required by applicable law or required to fund its insurance operations) of the
Borrower or the Borrower (collectively, “Intercompany
Loans”), provided that (i) each such
Intercompany Loan shall be evidenced by an Intercompany Note, and (ii) each Intercompany
Note evidencing an Intercompany Loan to the Borrower shall contain the subordination
provisions contained in Exhibit G;




     (g) the Borrower and its Subsidiaries may acquire and hold the capital stock of
Wholly-Owned Subsidiaries, provided that to the extent any such Wholly-Owned Subsidiary
acquired, created or established by the Borrower or any of its Subsidiaries constitutes a
Material Subsidiary, such Wholly-Owned Subsidiary is so acquired, created or established in
accordance with Section 8.04;




     (h) Permitted Currency Agreements shall be permitted;




     (i) Permitted Commodities Agreements shall be permitted;




     (j) the Borrower and its Subsidiaries may effect Permitted Acquisitions in accordance
with the requirements of Section 8.01(i);




     (k) the Captive Insurance Subsidiary may invest in Permitted Captive Insurance
Investments;



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     (1) so long as (x) no Default or Event of Default then exists or would result
therefrom and (y) any such investment is permitted at such time under the Senior Note
Indenture, the Borrower and its Subsidiaries may make Joint Venture Investments in
Permitted Joint Ventures, provided that the aggregate amount of all Joint Venture
Investments at any one time outstanding shall not exceed $50,000,000 less the Joint
Venture Letter of Credit Outstandings at such time;




     (m) the Borrower may continue to own and hold Permitted Existing Investments;




     (n) the Borrower may acquire and maintain investments in COLI Policies; and




     (o) the Borrower and its Subsidiaries may make additional advances, investments and
loans not otherwise permitted pursuant to this Section 8.05 (other than advances,
investments or loans (1) in or to any Permitted Joint Venture, (2) in or to the Captive
Insurance Subsidiary or (3) of the type constituting a Permitted Existing Investment), so
long as (i) the aggregate principal amount thereof at any time outstanding (determined
without regard to any write-downs or write-offs thereof) shall not exceed $7,500,000, and
(ii) each such advance, investment or loan is made by the Borrower or such Subsidiary in or
to a Person engaged in the type of business described in Section 8.08.



          8.06 Dividends, etc. The Borrower will not, and will not permit any Subsidiary to, declare or
pay any dividends or return any capital to, its stockholders or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders as such, or redeem,
retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of
any class of its capital stock now or hereafter outstanding (or any warrants for or options or
stock appreciation rights in respect of any of such shares), or set aside any funds for any of the
foregoing purposes and the Borrower will not, and will not permit any of its Subsidiaries to,
purchase or otherwise acquire for a consideration any shares of any class of the capital stock of
the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any
warrants for or options or stock appreciation rights issued by such Person in respect of any such
shares) (all of the foregoing “Dividends”), except that:





     (a) any Subsidiary of the Borrower and any Permitted Joint Venture may pay Dividends
(x) to the Borrower or to any Wholly-Owned Subsidiary of the Borrower or (y) to any other
investor in such Subsidiary or Permitted Joint Venture to the extent of such investor’s
proportionate ownership interest in such Subsidiary or Permitted Joint Venture;




     (b) so long as there shall exist no Default or Event of Default (both before and after
giving effect thereto), the Borrower may effect Common Stock Repurchases in accordance with
applicable law and so long as the Borrower (x) promptly retires any such shares of Common
Stock so repurchased or (y) holds such shares as treasury stock;




     (c) the Borrower may pay cash Dividends in any fiscal quarter to the holders of Common
Stock if and only if (x) no Default or Event of Default then exists or would result from the
payment thereof and (y) the aggregate amount of all cash Dividends proposed to be paid in
any such fiscal quarter pursuant to this clause (c), when added to




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the aggregate amount of all cash Dividends previously paid during the fiscal quarter in
which such cash Dividends are proposed to be paid and during the immediately preceding
three fiscal quarters, shall not exceed the greater of (1) $15,000,000 or (2) 35% of the
Consolidated Net Income of the Borrower for the immediately preceding four fiscal quarters
of the Borrower as determined from the most recently delivered Section 7.01 Financial; and




     (d) so long as there shall exist no Default or Event of Default (both before and after
giving effect to the payment thereof), the Borrower may repurchase or redeem stock
appreciation rights issued by the Borrower to its directors, employees and officers
pursuant to the Stock Option Plans.



          8.07 Transactions with Affiliates. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any Affiliate other than on terms and conditions substantially as
favorable (or more 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, except the following shall not be prohibited: (i) the Transaction, (ii)
Dividends permitted by Section 8.06, (iii) Intercompany Loans, (iv) each of the Borrower and any of
its Wholly-Owned Subsidiaries may, in the ordinary course of its business, transfer inventory to or
among each other, (v) each of the Borrower and any of its Subsidiaries may, in the ordinary course
of its business, charge each other for services provided to the other. (vi) the Borrower may grant
stock options, stock appreciation rights, restricted stock awards and phantom stock awards to its
and its Subsidiaries’ directors in the ordinary course of business, and (vii) the Borrower and its
Subsidiaries may pay reasonable and customary fees to their directors who are not also officers or
employees of the Borrower or any of its Subsidiaries.




          8.08 Changes in Business. The Borrower will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than (i) the business in
which it is engaged on the Restatement Effective Date, (ii) reasonable extensions thereof and (iii)
any other manufacturing business, including, without limitation, the distribution and/or resale of
manufactured products and other reasonable extensions of the manufacturing business.




          8.09 Consolidated Indebtedness to Consolidated EBITDA. The Borrower will not permit the
ratio of (i) Consolidated Indebtedness at any time to (ii) Consolidated EBITDA for the Test Period
then most recently ended, to be greater than 3.0:1.0.




          8.10 Consolidated EBITDA to Consolidated Interest Expense. The Borrower will not
permit the ratio of (i) Consolidated EBITDA for any Test Period to (ii) Consolidated Interest
Expense for such Test Period to be less than 3.0:1.0.




          8.11 Limitation on Voluntary Payments and Modifications of Indebtedness: Modification of
Certificate of Incorporation. The Borrower will not, and will not permit any of its
Subsidiaries to: (i) make (or give any notice in respect of) any voluntary or optional payment or
prepayment on or redemption (including pursuant to any change of control provision) of or
acquisition for value of (including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying when due), any Senior





- 53 -









 







Notes or any Permitted Refinancing Debt, except that so long as no Default or Event of Default
then exists or would result therefrom (x) the Senior Notes may be refinanced with the proceeds of
Permitted Refinancing Debt and any Permitted Refinancing Debt may be refinanced with the proceeds
of Loans hereunder or any other Permitted Refinancing Debt and (y) the Senior Notes may otherwise
be repurchased, redeemed or retired pursuant to a Permitted Senior Note Repurchase, (ii) amend or
modify, or permit the amendment or modification of, any provision of the Senior Note Documents,
any Permitted Refinancing Debt or any agreement (including, without limitation, any purchase
agreement, indenture, loan agreement or security agreement) relating thereto, or (iii) amend,
modify or change any provision of its Certificate of Incorporation (including, without limitation,
by the filing or modification of any certificate of designation) or By-Laws, except for such
amendments to the Certificate of Incorporation or By-Laws of the Borrower or any of its
Subsidiaries which do not impose any monetary liabilities on the Borrower or any of its
Subsidiaries, as the case may be, or grant any put or similar rights to any Person and do not
otherwise adversely affect any Bank in its capacity as such.




          8.12 Limitations on Issuance of Capital Stock. The Borrower will not permit any of
its Subsidiaries to directly or indirectly issue, sell, assign, pledge or otherwise encumber or
dispose of any shares of its capital stock or other equity securities (or warrants, rights or
options to acquire shares or other equity securities) except (i) to qualify directors to the extent
required by applicable law, (ii) in connection with a Permitted Joint Venture to the extent
otherwise permitted by the terms of this Agreement or (iii) to the Borrower or a Wholly-Owned
Subsidiary of the Borrower.




          8.13 Limitation on Restrictions Affecting Subsidiaries. The Borrower will not, and
will not permit any Subsidiary to, directly, or indirectly, create or otherwise cause or suffer to
exist any encumbrance or restriction which prohibits or limits the ability of the Borrower or any
Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to the
Borrower or any of its Subsidiaries, (b) make loans or advances to the Borrower or any Subsidiary
thereof, (c) transfer any of its properties or assets to the Borrower or any Subsidiary thereof or
(d) 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 encumbrances and restrictions arising under (i)
applicable law, (ii) this Agreement and the other Credit Documents, (iii) to the extent restricting
the disposition of any property serving as security therefor, any agreement relating to
Indebtedness permitted pursuant to Section 8.03(b) secured by Liens permitted pursuant to Section
8.02(g), (iv) customary provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Borrower or any of its Subsidiaries, (v) customary restrictions on
dispositions of real property interests found in reciprocal easement agreements of the Borrower or
any of its Subsidiaries, (vi) the Senior Note Documents, or (vii) the documents or instruments
governing the terms of any Indebtedness of any Subsidiary outstanding pursuant to Section 8.03(g)
to the extent restricting the payment of dividends or other cash distributions by a Subsidiary to
the Borrower or any other Subsidiary of the Borrower.




          SECTION 9. Events of Default. Upon the occurrence of any of the following
specified events (each, an “Event of Default”):




          9.01 Payments. The Borrower shall (i) default in the payment when due of any principal
of the Loans or any Unpaid Drawing or (ii) default, and such default shall continue for





-54-









 







three or more Business Days, in the payment When due of any interest on the Loans or Unpaid
Drawings or any Fees or any other amounts owing hereunder or under any other Credit Document; or




          9.02 Representations, etc. Any representation, warranty or statement made by the
Borrower herein or in any other Credit Document or in any certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to be untrue in any material respect on the date
as of which made or deemed made; or




          9.03 Covenants. The Borrower shall (a) default in the due performance or observance by it
of any term, covenant or agreement contained in Sections 7.01 (d)(x), 7.08, 7.13 or 8 (other than
Sections 8.05 or 8.07), or (b) default in the due performance or observance by it of any term,
covenant or agreement (other than those referred to in Section 9.01, 9.02 or clause (a) of this
Section 9.03) contained in this Agreement and such default shall continue unremedied for a period
of at least 30 days after notice to the defaulting party by the Administrative Agent or any Bank;
or




          9.04
Default Under Other Agreements. (a) The Borrower or any of its Subsidiaries
(collectively, the “Designated Parties”) shall (i) default in any payment in respect of any
Indebtedness (other than the Obligations) beyond the period of grace, if any, provided by the
instrument or agreement governing such Indebtedness or (ii) default in the observance or
performance of any agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, any such Indebtedness to become due prior to its stated maturity; or (b) any
such Indebtedness (other than the Obligations) of any Designated Party shall be declared to be due
and payable, or required to be prepaid other than by a regularly scheduled required prepayment,
prior to the stated maturity thereof, provided that it shall not constitute an Event of
Default pursuant to clause (a) or (b) of this Section 9.04 unless the outstanding principal amount
of any one issue of such Indebtedness exceeds $5,000,000 or the aggregate amount of all such
Indebtedness referred to in clauses (a) and (b) above exceeds $15,000,000 at any one time; or




          9.05 Bankruptcy, etc. Any Designated Party shall commence a voluntary case concerning itself
under Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or
any successor thereto (the “Bankruptcy Code”); or an involuntary case is commenced against any
Designated Party and the petition is not controverted within 1.0 Business Days, or is not dismissed
within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code)
is appointed for, or takes charge of, all or substantially all of the property of any Designated
Party; or any Designated Party commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction whether now or hereafter in effect relating to any Designated
Party; or there is commenced against any Designated Party any such proceeding which remains
undismissed for a period of 60 days; or any Designated Party is adjudicated insolvent or bankrupt;
or any order of relief or other order approving any such case or proceeding is entered; or any
Designated Party suffers any appointment of any custodian or the like for it or any substantial
part of its property to continue undischarged or unstayed for a





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period of 60 days; or any Designated Party makes a general assignment for the benefit of creditors;
or any Designated Party admits in writing its inability to pay its debts generally as they become
due; or any corporate action is taken by any Designated Party for the purpose of effecting any of
the foregoing; or




          9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding standard required
for any plan year or part thereof or a waiver of such standard or extension of any amortization
period is sought or granted under Section 412 of the Code, any Plan shall have had or is likely
to have a trustee appointed to administer such Plan, any Plan is, shall have been or is likely to
be terminated or to be the subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, a contribution required to be made to a Plan or a Foreign Pension Plan
has not been timely made, any Designated Party or any ERISA Affiliate has incurred or is likely to
incur a liability to or on account of a Plan under Section 409,
502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code, or any
Designated Party or any ERISA Affiliate has incurred or is likely to incur liabilities pursuant to
one or more employee welfare benefit plans (as defined in Section 3(1) of ERISA) that provide
benefits to retired employees or other former employees (other than as required by Section 601 of
ERISA) or employee pension benefit plans (as defined in Section 3(2) of ERISA); (b) there shall
result from any event or events described in clause (a) of this Section 9.06, the imposition of a
lien, the granting of a security interest, or a liability or a material risk of incurring a
liability; and (c) which lien, security interest or liability referred to in clause (b) of this
Section 9.06, in the opinion of the Required Banks, could reasonably be expected to have a Material
Adverse Effect; or




          9.07 Judgments. One or more judgments or decrees shall be entered against the Borrower
and/or any of its Subsidiaries involving a liability (not paid or fully covered by a reputable and
solvent insurance company) of $15,000,000 or more for all such judgments and decrees, and all such
judgments or decrees shall not have been vacated, discharged or stayed or bonded pending appeal
within 30 days from the entry thereof; or




          9.08
Change of Control. A Change of Control shall have occurred;



then, and in any such event, and at any time thereafter, if any Event of Default shall
then be continuing, the Administrative Agent shall, upon the written request of the Required
Banks, by written notice to the Borrower, take any or all of the following actions, without
prejudice to the rights of the Administrative Agent, any Syndication Agent or any Bank or the
holder of any Note to enforce its claims against the Borrower, except as otherwise specifically
provided for in this Agreement provided that, if an Event of Default specified in Section
9.05 shall occur with respect to the Borrower, the result which would occur upon the giving of
written notice by the Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total Commitment terminated,
whereupon the Commitment of each Bank shall forthwith terminate immediately and any Facility Fees
shall forthwith become due and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and all obligations owing hereunder
(including Unpaid Drawings) to be, whereupon the same shall become, forthwith, due and payable
without presentment; demand, protest or other notice of any kind, all of which are hereby waived
by the Borrower; (iii) terminate any Letter of Credit which may be terminated in accordance with
its





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terms; (iv) apply any cash collateral in a Cash Collateral Account or otherwise, as
provided in Section 4.02 or otherwise in the Credit Documents; and (v) direct the Borrower to pay
(and the Borrower hereby agrees upon receipt of such notice, or upon the occurrence of any Event
of Default specified in Section 9.05, it will pay) to the Administrative Agent at the Payment
Office such additional amounts of cash, to be held as security for the Borrower’s reimbursement
obligations in respect of Letters of Credit then outstanding equal to the aggregate Stated Amount
of all Letters of Credit then outstanding.




          SECTION
10. Definitions. As used herein, the following terms shall have the meanings
herein specified unless the context otherwise requires. Defined terms in this Agreement shall
include in the singular number the plural and in the plural the singular:




          “Absolute Rate” shall mean an interest rate (rounded to the nearest .0001) expressed as a
decimal.




          “Absolute Rate Borrowing” shall mean a Competitive Bid Borrowing with respect to which the
Borrower has requested that the Banks offer to make Competitive Bid Loans at Absolute Rates.




          “Act” shall have the meaning provided in Section 12.16.




          “Additional Bank” shall have the meaning provided in Section 1.16(b).




          “Additional Commitment” shall mean, for each Additional Bank, any commitment provided by such
Additional Bank pursuant to Section 1.16, in such amount as agreed to by such Additional Bank in
the respective Additional Commitment Agreement; provided that on the Additional Commitment
Date upon which an Additional Commitment of any Additional Bank becomes effective, such Additional
Commitment of such Additional Bank shall (x) in the case of an existing Bank be added to (and
thereafter become a part of) the existing Commitment of such existing Bank for all purposes of
this Agreement as contemplated by Section 1.16 and (y) in the case of a new Bank, be converted to
a Commitment and become a Commitment for all purposes of this Agreement as contemplated by Section
1.16.




          “Additional
Commitment Agreement” shall mean an Additional Commitment Agreement
substantially in the form of Exhibit E (appropriately completed).




          “Additional
Commitment Banks” shall mean each Bank with an Additional Commitment.




          “Additional Commitment Date” shall mean each date upon which an Additional Commitment under
an Additional Commitment Agreement becomes effective as provided in Section 1.16.




          “Additional Indebtedness” shall have the meaning provided in Section 8.03(o).




          “Administrative Agent” shall have the meaning provided in the first paragraph of this Agreement
and shall include any successor to the Administrative Agent appointed pursuant to Section 11.09.





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




          “Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly
controlling (including, but not limited to, all directors of such Person), controlled by, or under
direct or indirect common control with such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power (i) to vote 5% or more of
the securities having ordinary voting power for the election of directors of such corporation or
(ii) to direct or cause the direction of the management and policies of such corporation, whether
through the ownership of voting securities, by contract or otherwise. For purposes of Section 8.07
of this Agreement, so long as American Securities Corporation has any representatives on the Board
of Directors of the Borrower or any of its Subsidiaries, American Securities Corporation shall be
deemed to be an Affiliate of the Borrower to the extent not otherwise meeting the criteria set
forth above in the definition of “Affiliate.”




          “Aggregate Outstandings’” shall have the meaning provided in Section 4.02(A)(a).




          “Agreement” shall mean this Credit Agreement, as the same may be from time to time modified,
amended and/or supplemented.




          “Alternate Currency Sublimit” shall mean $200,000,000; provided that if at any time
the Total Commitment is increased pursuant to Section 1.16, then the Alternate Currency Sublimit
may be increased by an equivalent amount by written notice thereof delivered by the Borrower to
the Administrative Agent at the time the Total Commitment is so increased.




          “Applicable Facility Fee Percentage” shall mean, at any time, the margin set forth below
opposite the ratio of (i) Consolidated Indebtedness as of the last day of the most recent fiscal
year or fiscal quarter in respect of which the Banks shall have received Section 7.01 Financials to
(ii) Consolidated EBITDA for the Test Period ending on the last day of such fiscal year or fiscal
quarter (it being understood that each Applicable Facility Fee Percentage shall be in effect from
the date the respective Section 7.01 Financials are delivered to the Banks until the date the next
such Section 7.01 Financials arc delivered to the Banks at which time the Applicable Facility Fee
Percentage shall be reset in accordance with the foregoing provisions of this definition):




	 	 	 	 	 
	 	 	Applicable	 
	Consolidated Indebtedness/	 	Facility Fee	 
	Consolidated EBITDA Ratio	 	Percentage	 
	Greater than 2.75: 1.00
	 	 	0.250	%
	 
	 	 	 	 
	Greater than 2.50: 1.00
but less than or equal to 2.75:1.00
	 	 	0.200	%
	 
	 	 	 	 
	Greater than 2.00: 1.00 but less
than or equal to 2.50:1.00
	 	 	0.150	%






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	 	 	Applicable	 
	Consolidated Indebtedness/	 	Facility Fee	 
	Consolidated EBITDA Ratio	 	Percentage	 
	Greater than 1.75:1.00
but less than or equal to 2.00:1.00
	 	 	0.125	%
	 
	 	 	 	 
	Less than or equal to 1.75 to 1.00
	 	 	0.100	%





; provided that if any Section 7.01 Financials are not delivered when required (the
“Late Section 7.01 Financials”) and such Late Section 7.01 Financials establish that the
Applicable Facility Fee Percentage would have been increased to an amount set forth in the table
above on the date that such Late Section 7.01 Financials were required to have been delivered (the
“Required Delivery Date”), then such increased Applicable Facility Fee Percentage shall be
deemed to be effective as of such Required Delivery Date, and in the event that the Borrower shall
have made any payment of Facility Fees during the period from the Required Delivery Date to the
actual date of delivery of such Late Section 7.01 Financials based upon any such lower Applicable
Facility Fee Percentage, then the Borrower shall pay in the form of a supplemental Facility Fee
payment, an amount which equals the difference between the amount of Facility Fees which would
otherwise have been paid determined as if the Late Section 7.01 Financials were delivered on the
Required Delivery Date and the amount of such Facility Fees so paid, which supplemental Facility
Fee payment shall be due and payable on the date of delivery of the Late Section 7.01 Financial;
provided, further, notwithstanding the foregoing, the Applicable Facility Fee Percentage as
of the Restatement Effective Date shall be 0.10%.




          “Applicable Margin” shall mean, at any time, the margin set forth below opposite the ratio of
(i) Consolidated Indebtedness as of the last day of the most recent fiscal year or fiscal quarter
in respect of which the Banks shall have received Section 7.01. Financials to (ii) Consolidated
EBITDA for the Test Period ending on the last day of such fiscal year or fiscal quarter (it being
understood that each Applicable Margin shall be in effect from the date the respective Section
7.01 Financials are delivered to the Banks until the date the next such Section 7.01 Financials
are delivered to the Banks at which time the Applicable Margin shall be reset in accordance with
the foregoing provisions of this definition):




	 	 	 	 	 
	Consolidated Indebtedness/	 	Applicable	 
	Consolidated EBITDA	 	Margin	 
	Greater than 2.75:1.00
	 	 	1.000	%
	 
	 	 	 	 
	Greater than 2.50:1.00 but less than
or equal to 2.75:1.00
	 	 	0.800	%
	 
	 	 	 	 
	Greater than 2.00:1.00 but less than
or equal to 2.50:1.00
	 	 	0.600	%
	 
	 	 	 	 
	Greater than 1.75:1.00
	 	 	 	 






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	Consolidated Indebtedness/	 	Applicable	 
	Consolidated EBITDA	 	Margin	 
	but less than or equal to 2.00:1.00
	 	 	0.500	%
	Less than or equal to 1 .75 to 1.00
	 	 	0.450	%





; provided that if any Section 7.01 Financials are not delivered when required and such
Late Section 7.01 Financials establish that the Applicable Margin would have been increased to an
amount set forth in the table above on the Required Delivery Date, then such increased Applicable
Margin shall be deemed to be effective as of such Required Delivery Date, and in the event that
the Borrower shall have made any interest payment during the period from the Required Delivery
Date to the actual date of delivery of such Late Section 7.01 Financials based upon any such lower
Applicable Margin, then the Borrower shall pay in the form of a supplemental interest payment, an
amount which equals the difference between the amount of interest which would otherwise have been
paid determined as if the Late Section 7.01 Financials were delivered on the Required Delivery
Date and the amount of such interest so paid, which supplemental interest payment shall be due and
payable on the date of delivery of the Late Section 7.01
Financials; provided, further,
notwithstanding the foregoing, the Applicable Margin as of the Restatement Effective Date shall be
0.45%.




          “Approved Alternate Currency” shall mean Canadian Dollars, British Pounds Sterling, Euros,
Swiss Francs, Danish Krone and Japanese Yen, and, with respect to any Trade Letter of Credit, any
other currency other than Dollars which is approved by the Letter of Credit Issuer in respect of
such Trade Letter of Credit and the Administrative Agent prior to the issuance of such Trade
Letter of Credit.




          “Approved Bank” shall have the meaning set forth in the definition of Cash Equivalents.




          “Approved Currency” shall mean each of Dollars and each Primary Alternate Currency.




          “Approved Fund” shall have the meaning provided in Section 12.04.




          “Asset Sale” shall mean any sale, transfer or other disposition by the Borrower or any of its
Subsidiaries to any Person other than the Borrower or any Wholly-Owned Subsidiary of the Borrower
of any asset (including, without limitation, any capital stock or other securities of another
Person, but excluding any sale, transfer or other disposition by the Borrower or any of its
Subsidiaries of its capital stock or any other securities issued by it) of the Borrower or such
Subsidiary (other than (w) Joint Venture Investments made pursuant to Section 8.05(1), (x) sales of
investments held pursuant to Section 8.05(a), (c), (d), (f), (h), (i), (k), or (n), (y) any sale,
transfer or disposition of inventory and/or excess, worn, outmoded or obsolete equipment in the
ordinary course of business of the Borrower or such Subsidiary and (z) any other sale, transfer or
disposition of assets generating Net Cash Proceeds from such transaction in an amount which, when
added to the Net Cash Proceeds of all other Asset Sales consummated pursuant to this clause (z),
does not exceed $2,500,000).





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          “Assignment and Assumption” shall mean an assignment and assumption entered into by a Bank
and an assignee (with the consent of any party whose consent is required by Section 12.04), and
accepted by the Administrative Agent, in the form of Exhibit H or any other form approved by the
Administrative Agent.




          “Associated Cost Rate” shall mean, with respect to each Interest Period for Loans denominated
in Pounds Sterling, the costs (expressed as a percentage rounded up to the nearest four decimal
places and as determined on the first day of such Interest Period and any three month anniversary
thereof by the Administrative Agent) of compliance with then existing requirements of the Bank of
England in respect of Loans denominated in Pounds Sterling.




          “Authorized Officer” shall mean, with respect to any Person, the Chairman of the Board, the
President, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer,
any executive vice president, any senior vice president, any group vice president, any vice
president, treasurer or secretary of such Person.




          “Bank” shall have the meaning provided in the first paragraph of this Agreement, and shall
include any Person which becomes a Bank party to this Agreement in accordance with Section
12.04(b).




          “Bank Default” shall mean (i) the refusal (which has not been retracted) of a Bank to make
available its portion of any Borrowing or to fund its portion of any unreimbursed payment under
Section 2.02(c) or (ii) a Bank having notified the Administrative Agent and/or the Borrower that
it does not intend to comply with the obligations under Section 1.01 or under Section 2.02(c), in
the case of either clause (i) or (ii) above as a result of the appointment of a receiver or
conservator with respect to such Bank at the direction or request of any regulatory agency or
authority.




          “Bankruptcy Code” shall have the meaning provided in Section 9.05.




          “Base Rate” shall mean the higher of (i) the Federal Funds Rate plus 1/2 of 1% and (ii) the
Prime Lending Rate.




          “Base Rate Loan’” shall mean each Revolving Loan bearing interest at the rates provided in
Section 1.09(a).




          “Bidder Bank” shall mean each Bank that has notified in writing (and has not withdrawn such
notice) the Administrative Agent that it desires to participate generally in the bidding
arrangements relating to Competitive Bid Borrowings.




          “Borrower” shall have the meaning provided in the first paragraph of the Agreement.




          “Borrowing” shall mean (i) the incurrence of one Type of Revolving Loan by the Borrower from
all of the Banks on a pro rata basis on a given date (or resulting from conversions on a
given date), having in the case of Eurodollar Loans the same Interest Period, provided
that Base Rate Loans incurred pursuant to Section l.11(b) shall be considered part of any related
Borrowing of Eurodollar Loans or (ii) a Competitive Bid Borrowing.





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          “Business Day” shall mean (i) for all purposes other than as covered by clause (ii) below,
any day excluding Saturday, Sunday and any day which shall be in the City of New York a legal
holiday or a day on which banking institutions are authorized by law or other governmental actions
to close and (ii) with respect to all notices and determinations in connection with, and payments
of principal and interest on, Eurodollar Loans, any day which is a Business Day described in
clause (i) and which is also a day for trading by and between banks in Dollar deposits in the
London interbank Eurodollar market.




          “Capital Expenditures” shall mean, for any period, the aggregate of all expenditures (whether
paid in cash or accrued as liabilities, including Capitalized Lease Obligations but, in any event,
excluding interest capitalized in accordance with GAAP), by the Borrower and its Subsidiaries
during that period that, in conformity with GAAP, are or are required to be included in the
property, plant or equipment reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries.




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




          “Capitalized Lease Obligations” shall mean all obligations under Capital Leases of the
Borrower and its Subsidiaries in each case taken at the amount thereof accounted for as
liabilities in accordance with GAAP.




          “Captive Insurance Subsidiary” shall mean AMETEK (Bermuda) Ltd., a corporation organized and
existing under the laws of Bermuda.




          “Cash Collateral Account” shall have the meaning provided in Section 4.02(A)(a).




          “Cash Equivalents” shall mean (i) securities issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America is pledged in support thereof)
having maturities of not more than five years from the date of acquisition, (ii) Dollar denominated
time deposits, certificates of deposit and bankers acceptances of (x) any Bank that is a commercial
bank having capital and surplus in excess of $500,000,000 or (y) any bank whose short-term
commercial paper rating from S&P is at least A-l or the equivalent thereof or from Moody’s is at
least P-1 or the equivalent thereof (any such Bank or bank, an “Approved Bank”), in each case with
maturities of not more than six months from the date of acquisition, (iii) commercial paper issued
by any Approved Bank or by the parent company of any Approved Bank and commercial paper issued by,
or guaranteed by, any industrial or financial company with a short-term commercial paper rating of
at least A-l or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s,
or guaranteed by any industrial company with a long term unsecured
debt rating of at least A or A2,
or the equivalent of each thereof, from S&P or Moody’s, as the case may be, and in each case
maturing within one year after the date of acquisition, (iv) any fund or funds investing solely in
investments of the type described in clauses (i) through (iii) above, (v) shares of money market or
mutual or similar funds having assets in excess of $100,000,000 investing solely in debt securities
with maturities of less than one year and (vi) debt securities with a rating of at least A or A2,
or the equivalent of each





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thereof, from S&P or Moody’s, as the case may be, of public companies which (x) are freely
tradeable without restriction on a stock exchange or through a nationally recognized automated
quotation system, (y) are purchased and held as current assets and not for investment and (z) have
a maturity of not more than five years from the issuance thereof.




          “Cash Proceeds” shall mean, with respect to any sale, lease, transfer or other disposition of
assets, the aggregate cash payments in connection therewith (including any cash received by way of
deferred payment pursuant to a note receivable issued in connection therewith, other than the
portion of such deferred payment constituting interest, and including any amounts received under
any noncompete or similar agreement or as disbursement or withdrawals from any escrow or similar
account established in connection with any such sale, lease, transfer or other disposition, but,
in each such case, only as and when so received).




          “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended from time to time, 42 U.S.C. §9601 etseq.




          “Change in Law” shall mean (a) the adoption of any law, rule or regulation after the date of
this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Bank (or, for purposes of Section 1.11, by any lending office of such Bank or by
such Bank’s holding company, if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the date of this
Agreement.




          “Change of Control” shall mean (i) any “change of control” or similar event shall occur under
any Senior Note Document or any other agreements governing or evidencing Indebtedness of the
Borrower or any of its Subsidiaries (including, without limitation,
Permitted Refinancing Debt, if
any), (ii) any Person or group (as such term is defined in Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) shall have acquired, directly or
indirectly, beneficial ownership (as such term is defined in Rule 13d-3 promulgated under the
Exchange Act) of 35% or more of the outstanding Voting Stock of the Borrower or (iii) occupation
of a majority of the seats (other than vacant seats) of the Board of Directors of the Borrower by
Persons who arc neither (i) nominated by the Board of Directors of the Borrower nor (ii) appointed
by directors so nominated.




          “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder. Section references to the Code are to the
Code, as in effect at the date of this Agreement and any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.




          “COLI Policy” shall mean a corporate owned life insurance policy held by the Borrower with
respect to certain of its employees.




          “Collective Bargaining Agreements” shall mean all collective bargaining agreements or any
other similar agreement or arrangements covering the employees of the Borrower or any of its
Subsidiaries and any amendments thereto.





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          “Commitment” shall mean, with respect to each Bank, the amount set forth opposite such Bank’s
name in Schedule I hereto directly below the column entitled “Commitment,” as the same may
be (x) reduced from time to time pursuant to Section 3.02, 3.03 and/or 9, (y) increased from time
to time pursuant to Section 1.16 or (z) adjusted from time to time as a result of assignments to
or from such Bank pursuant to Section 12.04.




          “Commodities Agreement” shall mean any forward contract, futures contract, commodity price
swap, option contract or similar agreement or arrangement, in each case intended to protect the
Persons entering into same from fluctuations in the price of, or shortage of supply of, products
or other materials utilized in the businesses permitted by Section 8.08.




          “Common Stock” shall mean the Common Stock, par value $.01 per share, of the Borrower.




          “Common Stock Repurchase” shall mean, collectively, the repurchase of Common Stock by the
Borrower pursuant to open market and/or privately negotiated purchases and/or cash tender offer in
accordance with the provisions of Section 8.06(b).




          “Competitive Bid Borrowing” shall mean a Borrowing of Competitive Bid Loans pursuant to
Section 1.04.




          “Competitive Bid Loan” shall have the meaning provided in Section 1.01(b).




          “Consolidated Cash Interest Expense’’ shall mean, for any period, Consolidated Interest
Expense for such period but only to the extent such Consolidated Interest Expense is payable in
cash for such period.




          “Consolidated EBIT” shall mean, for any period, the sum of, without duplication, the amounts
for such period of (i) the Consolidated Net Income of the Borrower and its Subsidiaries, (ii)
provisions for taxes based on income, (iii) Consolidated Interest Expense, and (iv) the amount of
any increase in the Borrower’s LIFO reserve (exclusive of any portion thereof attributable to sales
of assets) during such period (and minus any decrease in the Borrower’s LIFO reserve (exclusive of
any portion thereof attributable to sales of assets) during such period), without giving effect to
the amount for such period of gains or losses on sales of assets (excluding sales in the ordinary
course of business other than sales of equipment) and other extraordinary or nonrecurring gains or
losses, in each case, to the extent included in determining Consolidated Net Income for such
period, all as determined on a consolidated basis for the Borrower and its Subsidiaries.




          “Consolidated EBITDA” shall mean, for any period, the sum (without duplication) of the
amounts for such period of (i) Consolidated EBIT, (ii) depreciation expense, (iii) amortization
expense and (iv) other non-cash charges (excluding any non-cash charges recorded in connection with
any restructuring of the Borrower or any of its Subsidiaries), in the case of each of clauses
(ii)-(iv) above to the extent deducted in determining Consolidated EBIT for such period, all as
determined on a consolidated basis for the Borrower and its Subsidiaries; it being understood and
agreed that in determining the ratio of Consolidated Indebtedness to Consolidated EBITDA,
Consolidated EBITDA for any period shall be calculated on a pro forma basis (such pro forma
calculations to be made in accordance with GAAP and in a manner





-64-









 







satisfactory to the Administrative Agent) to give effect to any Person or assets acquired during
such period pursuant to a Permitted Acquisition, as if same had been consummated on the first day
of such period and so long as such Person or assets were not subsequently sold or otherwise
disposed of by the Borrower or any of its Subsidiaries during such period.




          “Consolidated Indebtedness” shall mean all Indebtedness of the Borrower and its Subsidiaries
required to be accounted for as debt in accordance with GAAP, determined on a consolidated basis,
other than Indebtedness evidenced by Intercompany Notes; provided that the aggregate
principal or invested amount outstanding under the Permitted Receivables Securitization Program
from time to time shall constitute Consolidated Indebtedness for all purposes of this Agreement.




          “Consolidated Interest Expense” shall mean, for any period, total interest expense (including
that attributable to Capital Leases in accordance with GAAP) of the Borrower and its Subsidiaries
determined on a consolidated basis with respect to all outstanding Indebtedness of the Borrower
and its Subsidiaries, including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers’ acceptance financing and net costs
(i.e., costs minus benefits) under Interest Rate Protection Agreements, but excluding, however,
amortization of deferred financing costs to the extent included in total interest expense, all as
determined on a consolidated basis, in each case net of the total interest income (excluding
non-cash interest income on investments issued with original issue discount) of the Borrower and
its Subsidiaries for such period, determined on a consolidated basis.




          “Consolidated Net Income” shall mean, for any period, net after tax income (or loss) of the
Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP.




          “Consolidated Net Worth” shall mean, as at any date of determination, the stockholders’
equity of the Borrower (after deducting treasury stock) as determined in accordance with GAAP and
as would be reflected on a consolidated balance sheet of the Borrower prepared as of such date.




          “Contingent Obligations” shall mean as to any Person (i) any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations
(“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly
or indirectly, including, without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (x) for the purchase or payment of any
such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary obligation
or (d) otherwise to assure or hold harmless the owner of such primary obligation against loss in
respect thereof and (ii) any Interest Rate Protection Agreement, Currency Agreement and Commodities
Agreement; provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount





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equal to the stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to perform thereunder)
as determined by such Person in good faith.




          “Credit Documents” shall mean this Agreement and the Notes.




          “Credit Event” shall mean the making of a Loan or the issuance of a Letter of Credit.




          “Currency Agreement” shall mean any foreign exchange contract, currency swap agreement,
futures contract, option contract, synthetic cap or other similar agreement designed to protect
the Persons entering into same against fluctuations in currency values.




          “Default” shall mean any event, act or condition which with notice or lapse of time, or both,
would constitute an Event of Default.




          “Designated Parties” shall have the meaning provided in Section 9.04.




          “Dividends” shall have the meaning provided in Section 8.06.




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




          “Domestic Subsidiary” shall mean each Subsidiary of the Borrower incorporated or organized in
the United States or any state or territory thereof (other than AMETEK (FSC) Inc.).




          “Employee Benefit Plans” shall mean all Plans of the Borrower or any of its Subsidiaries, and
for each such Plan (x) that is a “single-employer plan” (as defined in Section 4001(a)(15) of
ERISA) the most recently completed actuarial valuation prepared therefor by such Plan’s regular
enrolled actuary and the Schedule B, “Actuarial Information” to the IRS Form 5500 (Annual Report)
most recently filed with the Internal Revenue Service and (y) that is a “multiemployer plan” (as
defined in Section 4001(a)(3) of ERISA), each of the documents referred to in clause (x) either in
the possession of the Borrower or available on request from the sponsor or trustees of such Plan,
together with any agreements referred to in Section 5.01(i)(a) of the Original Credit Agreement,
and any amendments thereto.




          “Employment Agreements” shall mean all material employment agreements entered into by the
Borrower or any of its Subsidiaries with its employees and any amendments thereto.




          “Environmental Claims” shall mean any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, “Claims”), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to





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any applicable Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Materials arising from alleged injury or threat of injury to health, safety or the
environment.




          “Environmental Law” shall mean any applicable Federal, state, foreign or local statute, law,
rule, regulation, ordinance, code, guideline, written policy and rule of common law now or
hereafter in effect and in each case as amended, and any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent decree or judgment, relating to
the environment, health, safety or Hazardous Materials, including, without limitation, CERCLA;
RCRA; the Federal Water Pollution Control Act, as amended, 33 U.S.C.
§1251 et seq.; the Toxic
Substances Control Act, 15 U.S.C. § 7401 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et
seq.; the Safe Drinking Water Act, 42 U.S.C. §3808 et seq.; the Oil Pollution Act of 1990,
33 U.S.C. § 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of 1986,42
U.S.C. § 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C. § 1801 et seq.; the
Occupational Safety and Health Act, 29 U.S.C. § 651 et
seq.; and any applicable state and local or
foreign counterparts or equivalents.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued
thereunder Section references to ERISA
are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.




          “ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) which together
with the Borrower or any Subsidiary of the Borrower would be deemed to be a “single employer”
within the meaning of Section 414(b), (c), (m) or (o) of the Code.




          “Euribor” shall mean, for each Interest Period applicable to any Loan denominated in Euros,
the rate per annum that appears on Reuters Page EURIBOR-01 (or any successor page) at approximately
10:00 A.M. (London time) on the date which is two Business Days prior to the commencement of such
Interest Period or (ii) if such rate is not shown on Reuters Page EURIBOR-01 (or any successor
page), the average offered quotation to four prime banks in the Euro-zone interbank market by
JPMorgan Chase for Euro deposits of amounts comparable to the principal amount of Loans denominated
in Euros to be as part of such Borrowing with maturities comparable to the Interest Period to be
applicable to such Loan (rounded upward to the next whole multiple of 1/16 of 1%), determined as
of 10:00 A.M. (London time) on the date which is two Business Days prior to the commencement of
such Interest Period.




          “Euro” shall mean the single currency of participating member states of the European Union.




          “Eurodollar Loans” shall mean each Revolving Loan bearing interest at the rates provided in
Section 1.09(b).




          “Event of Default” shall have the meaning provided in Section 9.





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          “Existing Bank” shall mean each “Bank’’ under and as defined in the Existing Credit
Agreement.




          “Existing Credit Agreement’’ shall have the meaning provided in the recitals of this
Agreement.




          “Existing Letters of Credit” shall have the meaning provided in Section 2.01(a).




          “Facility Fee” shall have the meaning provided in Section 3.01 (a).




          “Federal Funds Rate” shall mean for any period, a fluctuating interest rate equal for each
day during such period to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on such transactions received
by the Administrative Agent from three Federal Funds brokers of recognized standing selected by
the Administrative Agent.




          “Fees” shall mean all amounts payable pursuant to, or referred to in, Section 3.01.




          “Final Maturity Date” shall mean June 17, 2010.




          “Foreign Bank” shall mean, as to the Borrower, any Bank that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of this definition,
the United States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.




          “Foreign Pension Plan” means any plan, fund (including, without limitation, any
superannuation fund) or other similar program established or maintained outside the United States
of America by the Borrower or any one or more of its Subsidiaries primarily for the benefit of
employees of the Borrower or any such Subsidiary residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon termination of employment, and
which plan is not subject to ERISA or the Code.




          “Foreign Subsidiaries” shall mean each Subsidiary of the Borrower which, is not a Domestic
Subsidiary.




          “GAAP” shall mean generally accepted accounting principles in the United States of America as
in effect on the date of this Agreement; it being understood and agreed that determinations in
accordance with GAAP for purposes of Section 8, including defined terms as used therein, are
subject (to the extent provided therein) to Section 12.07(a).




          “Governmental Authority” shall mean the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising






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executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          “Hazardous Materials” means (a) any petroleum or petroleum products, radioactive materials,
asbestos in any form that is friable, urea formaldehyde foam insulation, transformers or other
equipment that contained or contains, electric fluid containing levels of polychlorinated
biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the
definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely
hazardous waste,” “restricted hazardous waste,” “toxic substances,’” “toxic pollutants,”
“contaminants,” or “pollutants,” or words of
similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any Environmental Law.




          “Indebtedness” of any Person shall mean, without duplication, (i) all indebtedness of such
Person for borrowed money, (ii) the deferred purchase price of assets or services payable to
sellers thereof or any of such seller’s assignees which in accordance with GAAP would be shown on
the liability side of the balance sheet of such Person, (iii) the Stated Amount of all letters of
credit issued for the account of such Person and, without duplication, all drafts drawn
thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any property owned by
such first Person, whether or not such indebtedness has been assumed, (v) all Capitalized Lease
Obligations of such Person, (vi) all obligations of such Person to pay a specified purchase price
for goods or services whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, and (vii) all Contingent Obligations of such Person, provided that
Indebtedness shall not include trade payables and accrued expenses, in each case arising in the
ordinary course of business.




          “Insurance Proceeds” shall mean, with respect to any Recovery Event, the aggregate cash
payments received by the Borrower or any of its Subsidiaries in respect of such Recovery Event
(including any cash payments received in respect of any condemnation award or the exercise of any
power of eminent domain).




          “Intercompany
Loan” shall have the meaning provided in Section 8.05(f).




          “Intercompany Notes” shall mean promissory notes, in the form of Exhibit F hereto,
evidencing Intercompany Loans.




          “Interest Period” shall mean (x) with respect to any Eurodollar Loan, the interest period
applicable thereto, as determined pursuant to Section 1.10 and (y) with respect to any Competitive
Bid Loan, the period beginning on the date of incurrence thereof and ending on the stated maturity
thereof.




          “Interest Rate Basis” shall mean the respective LIBOR and/or such other basis for determining
an interest rate as the Borrower and the Administrative Agent may agree upon from time to time.




          “Interest Rate Protection Agreement” shall mean any interest rate swap agreement, any
interest rate cap agreement, any interest rate collar agreement or any other






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similar agreement or arrangement designed to hedge the risks for a Person with respect to, or
otherwise manage, interest rates.




          “Joint Venture Investments” shall mean any investment, capital contribution, advance, loan,
or guaranty, or any other investment by the Borrower or any of its Subsidiaries in a joint venture
related to any business permitted by Section 8.08.




          “Joint Venture Letter of Credit Outstandings” shall mean at any time the aggregate amount of
Letter of Credit Outstandings at such time in respect of Letters of Credit issued on behalf of any
Permitted Joint Venture.




          “JPMorgan Chase” shall have the meaning provided in the first paragraph of this Agreement.




          “Late Section 7.01 Financials” shall have the meaning provided in the definition of
Applicable Facility Fee Percentage set forth in this Section 10.




          “L/C Facing Fee” shall have the meaning provided in Section 3.01(c).




          “L/C Fee” shall have the meaning provided in Section 3.01(b).




          “Leasehold” of any Person means all of the right, title and interest of such Person as lessee
or licensee in to and under leases or licenses of land, improvements and/or fixtures.




          “Letter of Credit” shall have the meaning provided in Section 2.01(a).




          “Letter of Credit Issuer” shall mean (x) JPMorgan Chase, (y) PNC Bank National Association
and (z) with the consent of the Administrative Agent and the Borrower, any other Bank, to the
extent such Bank agrees, in its sole discretion, to become a Letter of Credit Issuer for the
purpose of issuing Letters of Credit pursuant to Section 2.




          “Letter of Credit Outstandings” shall mean, at any time, the sum of, without duplication, (i)
the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the aggregate amount of
all Unpaid Drawings in respect of all Letters of Credit;
provided, however, that for
purposes of Sections 1.01, 2.01(b)(i) and 4.02(A)(a), and the definitions of “Joint Venture Letter
of Credit Outstandings” and “Total Unutilized Commitment,” in determining the Letter of Credit
Outstandings, the Stated Amount of any outstanding Trade Letter of Credit denominated in an
Approved Alternate Currency shall be deemed to be an amount equal to 120% of the maximum available
amount to be drawn under such Trade Letter of Credit (regardless of whether any conditions for
drawing could then be met).




          “Letter of Credit Request” shall have the meaning provided in Section 2.03(a).




          “LIBOR” shall mean (i) with respect to any Borrowing of Revolving Loans of an Approved
Currency, the relevant interest rate, i.e., Euribor, Sterling LIBOR or US LIBOR, (ii) with respect
to any Competitive Bid Loans of an Approved Alternate Currency, such rate per annum as may be
agreed upon by the respective Borrower and the Bidder Bank, and (iii) with respect to a
Competitive Bid Loan that is a Spread Borrowing priced by reference to any LIBOR,







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the
arithmetic average (rounded to the nearest 1/100 of 1%) of the offered rates for
deposits in Dollars for the applicable Interest Period (or the period closest to such applicable
Interest Period) which appear on Dow Jones Telerate Screen 3740 or 3750) with maturities
comparable to the Interest Period to be applicable to such Competitive Bid Loan, determined as of
10:00 A.M. (London time) on the date which is two Business Days prior to the commencement of such
Interest Period.




          “Lien” shall mean any mortgage, pledge, security interest, encumbrance, lien or charge of any
kind (including any conditional sale or other title retention agreement, any financing or similar
statement or notice filed under the UCC or any similar recording or notice statute or any lease
in the nature thereof).




          “Loan” shall mean each Revolving Loan and each Competitive Bid Loan.




          “Management Agreements” shall mean all material agreements (or the forms thereof) with
members of, or with respect to the management of the Borrower or any of its Subsidiaries and any
amendments thereto.




          “Margin
Stock” shall have the meaning provided in Regulation U.




          “Material Adverse Effect” shall mean a material adverse effect on the business, operations,
properties, assets, liabilities or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole.




          “Material Subsidiary” shall mean any Domestic Subsidiary having gross assets with a fair
market value (reasonably determined by senior management of the Borrower in good faith) of at
least $3,000,000 and/or Consolidated EBITDA for the last four fiscal quarters of at least $750,000
(for purposes of this definition Consolidated EBITDA shall be calculated for such Subsidiary on a
stand-alone basis notwithstanding anything to the contrary contained in the definition thereof or
in any other definition used in the calculation thereof);
provided, however, that in any
event the term Material Subsidiary shall include any Domestic Subsidiary which constitutes a
“Significant Subsidiary” under, and as defined in, the Senior Note Indenture regardless of whether
the above conditions are satisfied.




          “Minimum Assignment Amount” shall mean, with respect to any assignment by any Bank of its
Loans or Commitment hereunder, an amount equal to $5,000,000.




          “Minimum Borrowing Amount” shall mean (i) in the case of Revolving Loans maintained as (x)
Base Rate Loans, $1,000,000 and (y) Eurodollar Loans, $5,000,000 and (ii) in the case of
Competitive Bid Loans denominated in (x) Dollars, $10,000,000 and (y) Approved Alternate
Currencies, the foreign currency equivalent of $2,000,000 as determined in accordance with Section
12.07(d).




          “Moody’s” shall mean Moody’s Investors Services, Inc.




          “Multiemployer Plan” shall have the meaning provided in Section 6.12(a).







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          “Net Cash Proceeds” shall mean, with respect to any Asset Sale, the Cash Proceeds
resulting therefrom net of (a) cash expenses of sale (including, without limitation, payment of
principal, premium and interest on Indebtedness and other liabilities other than the Loans) and
(b) taxes paid or payable as a result thereof over and above the taxes which would otherwise have
been payable in the absence of such Asset Sale.




          “Net Equity Issuance Proceeds” shall mean the cash proceeds (net of underwriting discounts
and commissions and other reasonable costs associated therewith) received from the sale of equity.




          “Net Insurance Proceeds” shall mean the Insurance Proceeds received by the Borrower and/or
its Subsidiaries with respect to any Recovery Event net of reasonable costs and expenses
associated therewith (including payment of principal, premium and interest of Indebtedness other
than the Loans, required to be, and which is, repaid under the terms thereof as a result of such
Recovery Event).




          “Note” shall have the meaning provided in Section 1.06(a).




          “Notice of Borrowing” shall have the meaning provided in Section 1.03(a).




          “Notice of Competitive Bid Borrowing” shall have the meaning provided in Section 1.04(a).




          “Notice of Conversion” shall have the meaning provided in Section 1.07.




          “Notice Office” shall mean the office of the Administrative Agent at 270 Park Avenue, New
York, New York 10017, or such other office as the Administrative Agent may designate in writing to
the Borrower and the Banks from time to time.




          “Notice of Prepayment” shall have the meaning set forth, in Section 4.01.




          “Obligations"' shall mean all amounts, direct or indirect, contingent or absolute, of every
type or description, and at any time existing, owing to the Administrative Agent, any Syndication
Agent or any Bank pursuant to the terms of this Agreement or any other Credit Document.




          “Participant” shall have the meaning provided in Section 12.04.




          “Participating Bank” shall have the meaning set forth in Section 2.02.




          “Payment Office” shall mean the office of the Administrative Agent at 270 Park Avenue, New
York, New York 10017, or such other office as the Administrative Agent may designate in writing to
the Borrower and the Banks from time to time.




          “PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section
4002 of ERISA, or any successor thereto.




          


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          “Pension Plan Refund” shall mean any cash payments (net of reasonable costs associated
therewith, including income, excise and other taxes payable thereon) received by the Borrower
and/or any of its Subsidiaries from any return of any surplus assets from any single Plan (other
than any such refund the cash payment received with respect to which, when added to the cash
payments received from all other such refunds from any such Plan in the same fiscal year as such
refund, does not exceed $400,000).




          “Percentage” shall mean at any time for each Bank, the percentage obtained by dividing such
Bank’s Commitment by the Total Commitment, provided that if the Total Commitment has been
terminated, the Percentage of each Bank shall be determined by dividing such Bank’s Commitment
immediately prior to such termination by the Total Commitment immediately prior to such
termination.




          “Permitted Acquisition” shall have the meaning set forth in Section 8.01 (i).




          “Permitted Acquisition Amount” shall mean, with respect to any Permitted Acquisition, the
aggregate amount paid (including for this purpose all cash consideration paid and the face amount
of all Indebtedness incurred in connection with such Permitted Acquisition, and all cash paid in
respect of any Permitted Earn-Out Debt incurred in connection with such Permitted Acquisition, but
excluding the fair market value of any Common Stock, if any, issued as consideration in connection
with such Permitted Acquisition) in connection with such Permitted Acquisition.




          “Permitted Captive Insurance Investments’’’ shall mean any investments currently held by the
Captive Insurance Subsidiary and any other investment made by the Captive Insurance Subsidiary in
compliance with the applicable laws and regulations governing the Captive Insurance Subsidiary in
its capacity as a captive insurance entity.




          “Permitted Commodities Agreement” shall mean any Commodities Agreement entered into in the
ordinary course of business by the Borrower and/or any of its Subsidiaries and not for speculative
purposes, to the extent consistent with the practices of the Borrower and its Subsidiaries prior
to the Restatement Effective Date.




          “Permitted Currency Agreement” shall mean any Currency Agreement entered into in the ordinary
course of business by the Borrower or any Subsidiary of the Borrower and not for speculative
purposes, to the extent consistent with the practices of the Borrower and its Subsidiaries prior
to the Restatement Effective Date.




          “Permitted Earn-Out Debt” shall mean Indebtedness of the Borrower or any of its Subsidiaries
incurred in connection with a Permitted Acquisition and in accordance
with Section 8.01 (i), which
Indebtedness is not secured by any assets of the Borrower or any of its Subsidiaries (including,
without limitation, the assets so acquired) and is only payable by the Borrower and its
Subsidiaries in the event certain future performance goals are achieved with respect to the assets
acquired; provided, that, such Indebtedness shall only constitute Permitted Earn-Out Debt
to the extent the terms of such Indebtedness expressly limit the maximum potential liability of the
Borrower and its Subsidiaries with respect thereto and all such other terms shall be in form and
substance reasonably satisfactory to the Administrative Agent.






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          “Permitted Existing Indebtedness” shall have the meaning provided in Section 6.18.




          “Permitted Existing Indebtedness Agreements” shall mean all agreements evidencing or relating
to the Permitted Existing Indebtedness and any amendments thereto.




          “Permitted
Existing Investments” shall mean the investments held by the Borrower and its
Subsidiaries as of the Restatement Effective Date and listed on Schedule IX hereto, but
only to the respective date, if any, set forth on such Schedule IX for the liquidation of
any such Permitted Existing Investment.




          “Permitted Foreign Investments” shall mean, with respect to any Foreign Subsidiary, (i)
government obligations of the country of such Foreign Subsidiary’s organization, in each case with
maturities of not greater than one year and (ii) investments by such Foreign Subsidiary in banks
or other financial institutions that are not otherwise provided for in the definition of Cash
Equivalents to the extent necessitated by commercial trade requirements or due to a lack of
approved bank investment alternatives as individually approved, by a Senior Financial Officer of
the Borrower, in each case, with maturities of less than six months.




          “Permitted Interest Rate Protection Agreements” shall, mean any Interest Rate Protection
Agreement entered into in the ordinary course of business by the Borrower or any Subsidiary of the
Borrower and not for speculative purposes with respect to Indebtedness permitted under Sections
8.03(a), (h), (i) or (o) to the extent consistent with the practices of the Borrower and its
Subsidiaries prior to the Restatement Effective Date.




          “Permitted Joint Venture” shall mean any Person engaged in business of the type described in
Section 8.08 of which the Borrower shall own, directly or
indirectly, 50% or more, but less than
100%, of the equity and voting interests and another Person (or group of Persons which acts
together in relation to such Permitted Joint Venture) owns the remaining equity and voting
interests.




          “Permitted Liens” shall have the meaning provided in Section 8.02(d).




          “Permitted Line of Business Sale” shall have the meaning provided in Section 8.01 (f).




          “Permitted Materials” shall have the meaning provided in Section 6.15(c).




          “Permitted
Receivables Securitization Program” shall mean a receivables securitization program
pursuant to which the Borrower or any of its Subsidiaries sells or grants a security interest in
its accounts receivable or an undivided interest therein, provided that (i) the aggregate
principal or invested amount outstanding at any time thereunder shall not exceed $125,000,000 and
(ii) the recourse of the purchaser or lender thereunder, as the case may be, for losses resulting
from an obligor’s failure to pay a receivable due to credit problems is limited to such accounts
receivable or an interest therein, and the collections thereof (it being understood and agreed that
recourse to the Borrower and its Subsidiaries pursuant to Standard Securitization Undertakings
shall be permitted).






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          “Permitted Receivables Securitization Transaction” shall mean the consummation of the
Permitted Receivables Securitization Program and related transactions in accordance with the
requirements of Sections 8.01(j) and 8.03(m) and the component definitions as used therein.




          “Permitted Refinancing Debt” shall mean Indebtedness incurred by the Borrower, the proceeds of
which are used to refinance the Senior Notes or previously issued Permitted Refinancing Debt, so
long as (i) at the time of incurrence thereof (both before and after giving effect thereto) no
Default or Event of Default then exists, (ii) the aggregate principal amount of such Permitted
Refinancing Debt does not exceed the aggregate principal amount of Senior Notes or Permitted
Refinancing Debt then outstanding, (iii) the final maturity of such Permitted Refinancing Debt is
no earlier than the final maturity of the Senior Notes or the Permitted Refinancing Debt so
refinanced, (iv) there shall be no scheduled amortization payments on the Permitted Refinancing
Debt prior to June 30, 2011, (v) no payment or make-whole premium or any other similar fee is paid
in connection with the refinancing of the Senior Notes or the Permitted Refinancing Debt so
refinanced except the payment of a premium, if any, up to the amount set forth in the Senior Note
Documents as in effect on the Restatement Effective Date, (vi) concurrently with the issuance
thereof, all proceeds thereof shall be deposited with the trustee for the payment of all or a
portion of the Senior Notes or Permitted Refinancing Debt so refinanced and (vii) all of the
documents evidencing or governing the terms of such Permitted Refinancing Debt are delivered to the
Banks prior to the incurrence of the Permitted Refinancing Debt and all of the other terms and
conditions thereof, including the covenants, amortization schedules, interest rate, redemption
provisions, maturity, defaults and remedies are in form and substance satisfactory to, and approved
in writing by, the Administrative Agent and the Required Banks.




          “Permitted Senior Note Repurchase” shall mean the redemption, repurchase or retirement of any
Senior Notes or Permitted Refinancing Debt so long as no Default or Event of Default then exists at
such time or would result therefrom.




          “Person” shall mean any individual, partnership, joint venture, firm, corporation,
association, trust or other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.




          “Plan” shall mean any multiemployer or single-employer plan as defined in Section 4001 of
ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute
of), the Borrower or any of its Subsidiaries or any ERISA Affiliate, and each such plan for the
five year period immediately following the latest date on which the Borrower or any such
Subsidiary or any ERISA Affiliate maintained, contributed to or had an obligation to contribute to
such plan.




          “Pounds Sterling” shall mean freely transferable lawful money of the United Kingdom.




          “Primary Alternate Currency” shall mean each of British Pounds Sterling and Euros.






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          “Prime Lending Rate” shall mean the rate which JPMorgan Chase announces from time to time as
its prime lending rate, the Prime Lending Rate to change when and as such prime lending rate
changes. The Prime Lending Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. JPMorgan Chase may make commercial loans or other
loans at rates of interest at, above or below the Prime Lending Rate.




          “RCRA”
shall mean the Resource Conservation and Recovery Act. as amended, 42
U.S.C. § 6901 et
seq.




          “Real Property” of any Person shall mean all of the right, title and interest of such Person
in and to land, improvements and fixtures, including Leaseholds.




          “Recovery Event” shall mean the receipt by the Borrower or any of its Subsidiaries of any
Insurance Proceeds payable by reason of theft, physical destruction or damage or any other similar
event (including as a result of any condemnation proceeding or the exercise of the power of
eminent domain) with respect to any properties or assets of the Borrower or any of its
Subsidiaries.




          “Register” shall have the meaning provided in Section 12.04(b).




          “Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor to all or a portion thereof establishing
reserve requirements.




          “Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor to all or a portion thereof establishing
margin requirements.




          “Reinvestment Assets” shall mean, with respect to any Asset Sale or the receipt of any Net
Insurance Proceeds from a Recovery Event, assets to be employed in, and/or the capital stock of any
person engaged in, the types of businesses permitted in Section 8.07.




          “Reinvestment Event” shall mean the consummation of any Asset Sale, the receipt of any
Pension Plan Refund or the receipt of any Net Insurance Proceeds from a Recovery Event.




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




          “Release” shall mean disposing, discharging, injecting, spilling, leaking, leaching, dumping,
emitting, escaping, emptying, seeping, placing, releasing, pumping, injecting, depositing,
dispersing, migrating and the like, into or upon land or water or air, or otherwise entering into
the indoor or outdoor environment or into or out of any Real Property, including the movement of
Hazardous Materials through or in the air, soil, surface water, ground water or property.




          “Replaced Bank” shall have the meaning provided in Section 1.14.








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          “Replacement Bank” shall have the meaning provided in Section 1.14.




          “Reply Date” shall have the meaning provided in Section 1.04(b).




          “Reportable Event” shall mean an event described in Section 4043(c) of ERISA with respect to
a Plan as to which the 30-day notice requirement has not been waived by the PBGC.




          “Required Banks” shall mean Banks whose outstanding Commitments (or, if after the Total
Commitment has been terminated, outstanding Loans and an amount equal to their Percentages of
Letter of Credit Outstandings, at such time) constitute at least a majority of the Total Commitment
(or, if after the Total Commitment has been terminated, the total outstanding Loans and an amount
equal to the aggregate Percentages of all Banks of Letter of Credit Outstandings at such time).




          “Required Delivery Date’” shall have the meaning provided in the definition of Applicable
Facility Fee Percentage set forth in this Section 10.




          “Restatement Effective Date” shall have the meaning provided in Section 12.10.




          “Revolving Loan” shall have the meaning provided in Section 1.01(a).




          “Rights Agreement” shall mean the Rights Agreement, dated as of July 26, 1989 between, the
Borrower and The Chase Manhattan Bank, as rights agent thereunder, as amended, modified or
supplemented from time to time.




          “S&P”
shall mean Standard & Poor’s Ratings Services, a division
of McGraw Hill, Inc.




          “SEC” shall mean the Securities and Exchange Commission or any successor thereto.




          “Section 7.01 Financials” shall mean the financial statements delivered, or to be delivered,
pursuant to Section 7.01 (a) or (b).




          “Senior Financial Officer” of any Person shall mean the Chief Financial Officer and any other
senior financial officer of such Person designated as such in writing to the Administrative Agent
by the Chief Financial Officer of such Person.




          “Senior Note Documents” shall mean the Senior Notes, the Senior Note Indenture and all other
documents and agreements entered into in connection therewith.




          “Senior Note Indenture” shall mean the Indenture, dated as of July 17, 1998 among the
Borrower and Chase Manhattan Trust Company, National Association, as trustee, as in effect on the
Restatement Effective Date and as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.






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          “Senior Notes” shall mean the $225,000,000 aggregate principal amount of the
Borrower’s Senior Notes due 2008, as in effect on the Restatement Effective Date and as amended,
modified or supplemented from time to time in accordance with the terms hereof and thereof.




          “Shareholders Agreements” shall mean all agreements entered into by the Borrower or any of
its Subsidiaries governing the terms and relative rights of its capital stock and any agreements
entered into by shareholders relating to any such entity with respect to their capital stock,
together with any agreements referred to in Section 5.01 (i)(e) of the Original Credit Agreement,
and any amendments thereto.




          “Spread"' shall mean a percentage per annum in excess of, or less than, an Interest Rate
Basis.




          “Spread Borrowing” shall mean a Competitive Bid Borrowing with respect to which the Borrower
has requested the Banks to make Competitive Bid Loans at a Spread over or under a specified
Interest Rate Basis.




          “Standard Securitization Undertakings’” means representations, warranties, covenants,
indemnities and such other obligations of the Borrower or any of its Subsidiaries in connection
with the Permitted Receivables Securitization Program which are customary in an off-balance-sheet
accounts receivable transaction.




          “Standby Letter of Credit” shall have the meaning set forth in Section 2.01 (a).




          “Stated Amount” of each letter of credit (including any Letter of Credit issued hereunder)
shall mean the maximum amount available to be drawn thereunder (regardless of whether any
conditions for drawing could then be met); provided,
however, for purposes of Sections
2.01(b)(i) and 2.01(b)(viii) the Stated Amount of any Trade Letter of Credit denominated in an
Approved Alternate Currency shall be an amount equal to 120% of the maximum available amount to
be drawn thereunder (regardless of whether any conditions for drawing could then be met).




          “Sterling LIBOR” shall mean, with respect to each Interest Period for any Loan denominated in
Pounds Sterling, (I) the rate per annum that appears on page 3750 (or other appropriate page if
such currency does not appear on such page) of the Dow Jones Telerate Screen (or any successive
page) with maturities comparable to such Interest Period as of 11:00 A.M. (London time) on the
date which is the commencement date of such Interest Period or, if such a rate does not appear on
page 3750 (or such other appropriate page) of the Dow Jones Telerate Screen (or any successor
page) the offered quotations to first-class banks in the London interbank Eurodollar market by
JPMorgan Chase for Pounds Sterling deposits of amounts in same day funds comparable to the
outstanding principal amount of such Loans with maturities comparable to such Interest Period
determined as of 11:00 A.M. (London time) on the date which is the commencement of such Interest
Period plus (II) the Associated Cost Rate for such Loans for such Interest Period.




          “Stock Option Plans” shall mean the 1981 Employees’ Non-Qualified Stock Option and Stock
Appreciation Rights Plan of AMETEK, Inc., as amended; the 1983 Employees’






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Incentive Stock Option Plan of AMETEK, Inc., as amended; the 1987 Employees’ Stock Incentive Plan
of AMETEK, Inc., as amended; the 1991 Stock Incentive Plan of AMETEK, Inc., as amended; the 1997
Stock Incentive Plan, as amended; the 1999 Stock Incentive Plan, as amended; the 2002 Stock
Incentive Plan, as amended and any similar replacement or other plans which provide for stock
options, restricted stock awards, stock appreciation rights, phantom stock awards and other
similar options, awards and rights established by the Borrower after the Restatement Effective
Date.




          “Subsidiary” of any Person shall, mean and include (i) any corporation more than 50% of whose
stock of any class or classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not at the time stock of
any class or classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or indirectly through
Subsidiaries and (ii) any partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries, has more than a 50% equity interest at the
time. Unless otherwise expressly provided, all references herein to “Subsidiary” shall mean a
Subsidiary of the Borrower.




          “Syndication Agent” shall have the meaning provided in the first paragraph of this Agreement.




          “Tax Sharing Agreements” shall mean all tax sharing, tax allocation and other similar
agreements, if any, entered into by the Borrower and/or any of its Subsidiaries, together with any
agreements referred to in Section 5.01(i)(g) of the Original Credit Agreement, and any amendments
thereto.




          “Taxes” shall have the meaning provided in Section 4.04.




          “Test Period” shall mean the four consecutive fiscal quarters of the Borrower then last
ended.




          “Total Commitment” shall mean the sum of the Commitments of each of the Banks.




          “Total Unutilized Commitment” shall mean, at any time, the excess, if any, of (i) the Total
Commitment over (ii) the sum of (x) the outstanding principal amount of all Loans plus (y) the
Letter of Credit Outstandings, in each case at such time.




          “Trade Letter of Credit” shall have the meaning set forth in Section 2.01 (a).




          “Transaction” shall mean the (i) payment of all outstanding Obligations (as defined therein)
under the Existing Credit Agreement and (ii) the incurrence of Loans and issuance of Letters of
Credit, if any, on the Restatement Effective Date.




          “Type” shall mean any type of Revolving Loan determined with respect to the interest option
applicable thereto, i.e., a Base Rate Loan or a Eurodollar Loan.




          “UCC” shall mean the Uniform Commercial Code.





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          “Unfunded Current Liability” of any Plan shall mean the amount, if any, by which the
actuarial present value of the accumulated plan benefits under the Plan as of the close of its
most recent plan year, determined in accordance with Statement of Financial Accounting Standards
No. 35, based upon the actuarial, assumptions used by the Plan’s actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets allocable thereto, determined
in accordance with Treasury Regulations Section 1.412(c)(2)-
l(c)(l).




          “Unpaid Drawing” shall have the meaning provided in Section 2.04(a).




          “US LIBOR” shall mean for each Interest Period applicable to a Loan denominated in Dollars
(other than a Base Rate Loan), the rate per annum that appears on page 3750 of the Dow Jones
Telerate Screen (or any successor page) for Dollar deposits with maturities comparable to such
Interest Period as of 11:00 A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period or, if such a rate does not appear on page 3750 of the Dow
Jones Telerate Screen (or any successor page), the offered quotations to first-class banks in the
London interbank market by JPMorgan Chase for Dollar deposits of amounts in same day funds
comparable to the outstanding principal amount of such Dollar denominated Loan with maturities
comparable to such Interest Period determined as of 11:00 A.M. (London time) on the date which is
two Business Days prior to the commencement of such Interest Period.




          “Voting Stock” shall mean the shares of capital stock and any other securities of any Person
entitled to vote generally for the election of directors of such Person or any other securities
(including, without limitation, rights and options), convertible into, exchangeable into or
any of the foregoing (whether or not presently exercisable, convertible or
exchangeable).




          “Wholly-Owned Subsidiary” shall mean, as to any Person, (i) any corporation 100% of whose
capital stock (other than director’s qualifying shares) is at the time owned by such Person and/or
one or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such
Person has a 100% equity interest at such time.




          “Written” or “in writing” shall mean any form of written communication or a communication by
means of telex, telecopier device, telegraph or cable.




          SECTION
11. The Administrative Agent, Syndication Agents, etc.




          11.01 Appointment. Each Bank hereby irrevocably designates and appoints JPMorgan Chase as
Administrative Agent, and each of Bank of America, N.A., PNC Bank, National Association, SunTrust
Bank and Wachovia Bank, N.A., as a Syndication Agent for such Bank to act as specified herein and
in the other Credit Documents, and each such Bank hereby irrevocably authorizes JPMorgan Chase as
the Administrative Agent and Bank of America, N.A., PNC Bank,
National Association, SunTrust Bank
and Wachovia Bank, N.A. as Syndication Agents to take such action on its behalf under the
provisions of this Agreement and the other Credit Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent and the Syndication Agents, as
the case may be, by the






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terms of this Agreement and the other Credit Documents, together with such other powers as
are reasonably incidental thereto. The Administrative Agent and the Syndication Agents each agree
to act as such upon the express conditions contained in this Section 11. Notwithstanding any
provision to the contrary elsewhere in this Agreement, neither the Administrative Agent nor the
Syndication Agents shall have any duties or responsibilities, except those expressly set forth
herein or in the other Credit Documents, or any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Administrative Agent or any Syndication Agent;
provided, further, that the duties of the Syndication Agents shall be nominal and titular
in nature. The provisions of this Section 11 are solely for the benefit of the Administrative
Agent, the Syndication Agents and the Banks, and neither the Borrower nor any of its Subsidiaries
shall have any rights as a third party beneficiary of any of the provisions hereof. In performing
its functions and duties under this Agreement, the Administrative Agent and the Syndication Agents
each shall act solely as agent of the Banks and the Administrative Agent and the Syndication
Agents each do not assume and shall not be deemed to have assumed any obligation or relationship
of agency or trust with or for the Borrower or any of its Subsidiaries.




          11.02 Delegation of Duties. The Administrative Agent and the Syndication
Agents each may execute any of its duties under this Agreement or any other Credit Document
by or through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all
matters pertaining to such duties. The Administrative Agent and the Syndication Agents each
shall, not be responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care except to the extent otherwise required by Section 11.03.




          11.03 Exculpatory Provisions. Neither the Administrative Agent nor any
Syndication Agent nor any of their respective officers, directors, employees, agents,
attorneys-in-
fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by
it or
such Person under or in connection with this Agreement (except for its or such Person’s own
gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Banks
for any recitals, statements, representations or warranties made by the Borrower or any of its
Subsidiaries or any of their respective officers contained in this Agreement, any other Credit
Document or in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent and/or the Syndication Agent under or in
connection with, this Agreement or any other Credit Document or for any failure of the Borrower or any of
its Subsidiaries or any of their respective officers to perform its obligations hereunder or
thereunder. Neither the Administrative Agent nor any Syndication Agent shall be under any
obligation to any Bank to ascertain or to inquire as to the observance or performance of any
of the agreements contained in or conditions of, this Agreement, or to inspect the properties,
books or records of the Borrower or any of its Subsidiaries. Neither the Administrative Agent nor
any Syndication Agent shall be responsible to any Bank for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any Credit Document or for
any representations, warranties, recitals or statements made herein or therein or made in any
written or oral statement or in any financial or other statements, instruments, reports, certificates
or any other documents in connection herewith or therewith furnished or made by the Administrative
Agent and/or any Syndication Agent to the Banks by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent and/or any Syndication Agent or any Bank or be
required to ascertain or inquire as to the performance or observance of any of the terms,




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conditions, provisions, covenants or agreements contained herein or therein or as to the use
of the proceeds of the Loans or of the existence or possible existence of any Default or Event of
Default.




          11.04
Reliance by the Administrative Agent, Syndication Agents, etc. The
Administrative Agent and the Syndication Agents each shall be entitled to rely, and shall be
fully
protected in relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have been signed,
sent
or made by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Credit Parties), independent accountants and
other
experts selected by the Administrative Agent and/or any Syndication Agent. The Administrative
Agent and the Syndication Agents each shall be fully justified in failing or refusing to take
any action under this Agreement or any other Credit Document unless it shall first receive such
advice or concurrence of the Required Banks as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks 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 and the Syndication Agents each shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in accordance with
a request of the Required Banks, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Banks.




          11.05
Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default hereunder unless it
has received notice from a Bank or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a “notice of default”. In the
event that
the Administrative Agent receives such a notice, it shall give prompt notice thereof to the
Banks.
The Administrative Agent shall take such action with respect to such Default or Event of
Default
as shall be reasonably directed by the Required Banks, provided that unless and until
the
Administrative Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best interests of the
Banks.




          11.06
Non-Reliance on Administrative Agent, Syndication Agents and Other Banks. Each Bank expressly acknowledges that neither the Administrative Agent nor any
Syndication Agent nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or warranties to it and that no act by the
Administrative Agent or any Syndication Agent hereinafter taken, including any review of the
affairs of the Borrower or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by the Administrative Agent or any Syndication Agent to any Bank.
Each Bank represents to the Administrative Agent and the Syndication Agents that it has,
independently and without reliance upon the Administrative Agent, any Syndication Agent, or
any other Bank, and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Credit Parties and
made its own decision to make its Loans, and participate in Letters of Credit, hereunder and enter into
this
Agreement. Each Bank also represents that it will, independently and without reliance upon
the





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Administrative Agent or any Syndication Agent or any other Bank, 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
to make such investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other conditions, prospects and creditworthiness of the Credit
Parties. Neither the Administrative Agent nor any Syndication Agent shall have any duty or
responsibility to provide any Bank with any credit or other information concerning the business,
operations, assets, property, financial and other conditions, prospects or creditworthiness of the
Borrower which may come into the possession of the Administrative Agent or such Syndication Agent
or any of their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates.




          11.07 Indemnification. The Banks agree to indemnify each of the Administrative
Agent and each Syndication Agent in its capacity as such ratably according to their respective
“percentages” as used in determining the Required Banks at such time (or if the Total
Commitment has been terminated and all Loans have been repaid, their respective “percentages”
used in determining the Required Banks immediately prior to such termination and repayment),
from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses or disbursements of any kind whatsoever which may
at any time (including, without limitation, at any time following the payment of the
Obligations)
be imposed on, incurred by or asserted against the Administrative Agent or such Syndication
Agent in its capacity as such in any way relating to or arising out of this Agreement or any
other
Credit Document, or any documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted to be taken by the Administrative Agent or
such Syndication Agent under or in connection with any of the foregoing, but only to the
extent
that any of the foregoing is not paid by the Borrower or any of its Subsidiaries,
provided that no
Bank shall be liable to the Administrative Agent or any Syndication Agent for the payment of
any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits,
costs, expenses or disbursements resulting solely from the gross negligence or willful
misconduct of the Administrative Agent or such Syndication Agent, as the case may be. If any
indemnity furnished to the Administrative Agent or any Syndication Agent for any purpose
shall,
in the opinion of the Administrative Agent or such Syndication Agent, be insufficient or
become
impaired, the Administrative Agent or such Syndication Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section. 11.07 shall survive the payment of all Obligations.




          11.08 Individual Capacity. The Administrative Agent, each Syndication Agent
and their respective affiliates may make loans to, accept deposits from and generally engage in
any kind of business with the Borrower or any of its Subsidiaries as though the Administrative
Agent or such Syndication Agent were not the Administrative Agent or a Syndication Agent
hereunder. With respect to the Loans made by it and all Obligations owing to it. the
Administrative Agent and each Syndication Agent shall have the same rights and powers under
this Agreement as any Bank and may exercise the same as though it were not the Administrative
Agent or a Syndication Agent and the terms “Required Banks”, “Bank” and “Banks” shall
include the Administrative Agent and each Syndication Agent in each of their respective
individual capacity.






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          11.09 Resignation; Successors. The Administrative Agent and/or each
Syndication Agent may resign as the Administrative Agent or a Syndication Agent, as the case may
be, upon 20 days’ notice to the Banks. To the extent not prohibited by law, the Administrative
Agent shall send a copy of any such resignation notice to the Borrower. Upon the resignation of
the Administrative Agent, the Required Banks shall appoint from among the Banks a successor
Administrative Agent for the Banks subject to prior approval by the Borrower (such approval not to
be unreasonably withheld), whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term “Administrative Agent” shall include such
successor agent effective upon its appointment, and the resigning Administrative Agent’s rights,
powers and duties as the Administrative Agent shall be terminated, without any other or further
act or deed on the part of such former Administrative Agent or any of the parties to this
Agreement. After the retiring Administrative Agent’s resignation hereunder as the Administrative
Agent, the provisions of this Section 11 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. In the event no
successor Administrative Agent has been appointed by the end of such 20 day period, the
resignation of the Administrative Agent shall become effective and the Required Banks shall
perform the duties of the Administrative Agent until a successor Administrative Agent is
appointed.




          11.10 Holders. The Administrative Agent and the Syndication Agents each may deem and
treat the payee of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Administrative Agent. Any request, authority or consent of any Person or
entity who, at the time of making such request or giving such authority or consent, is the holder
of any Note shall be conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in exchange thereof.




          SECTION 12. Miscellaneous.




          12.01 Payment of Expenses, etc. The Borrower agrees to: (i) whether or not the transactions
herein contemplated are consummated, pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and disbursements of
White & Case LLP and any consultants retained by the Administrative Agent) and in connection with
the Administrative Agent’s syndication efforts with respect to this Agreement; (ii) pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent and each of the Banks in
connection with the enforcement of the Credit Documents and the documents and instruments referred
to therein (including, without limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent and for each of the Banks); (iii) pay and hold each of the Banks harmless from
and against any and all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent attributable to such
Bank) to pay such taxes; and (iv) indemnify the Administrative Agent each Syndication Agent and
each Bank, their respective officers, directors, employees, representatives and agents (each, an
“Indemnified person”) from and hold each of




          


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them harmless against any and all losses, liabilities, claims, damages or expenses incurred
by any of them as a result of, or arising out of, or in any way related to, or by reason of,
regardless of when any such indemnified matter arises, (a) any investigation, litigation or other
proceeding (whether or not the Administrative Agent, any Syndication Agent or any Bank is a party
thereto and whether or not any such investigation, litigation or other proceeding is between or
among the Administrative Agent, any Syndication Agent, any Bank, the Borrower or any third Person
or otherwise) related to the entering into and/or performance of any Credit Document or the use of
the proceeds of any Loans or Letter of Credit hereunder or any other aspect of the Transaction or
the consummation of any other transactions contemplated in any Credit Document, (b) any settlement
entered into in connection with the foregoing to the extent such settlement has been consented to
by the Borrower, which consent shall not be unreasonably withheld or (c) the actual or alleged
presence, generation or Release of Hazardous Materials on or from, or the transportation of
Hazardous Materials to or from, any Real Property owned or operated at any time by the Borrower or
any of its Subsidiaries, the non-compliance of any such Real Property with foreign, federal, state
and local laws, regulations, and ordinances (including applicable permits thereunder) applicable
to any such Real Property, or any Environmental Claim with respect to the Borrower or any of its
Subsidiaries or any such Real Property, in each case including, without limitation, the reasonable
fees and disbursements of counsel and other consultants incurred in connection with any such
investigation, litigation, Environmental Claim or any of the Borrower’s acts, omissions, business,
operations or Real Property, or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the indemnified person). To the extent that the undertaking to indemnify and hold
harmless set forth in this Section 12.01 may be unenforceable because it is violative of any law
or public policy as determined by a final judgment of a court of competent jurisdiction, the
Borrower shall make the maximum contribution to the payment and satisfaction of each of the
liabilities giving rise to claims under the indemnification provisions of this 12.01 which is
permissible under applicable law.




          12.02 Right of Setoff. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights, upon the
occurrence
of an Event of Default, each Bank is hereby authorized at any time or from time to time,
without
presentment, demand, protest or other notice of any kind to the Borrower or any of its
Subsidiaries or to any other Person, any such notice being hereby expressly waived, to set off
and to appropriate and apply any and all deposits (general or special) and any other
Indebtedness
at any time held or owing by such Bank (including, without limitation, by branches and
agencies
of such Bank wherever located) to or for the credit or the account of the Borrower or any of
its
Subsidiaries against and on account of the Obligations and liabilities of the Borrower or any
of
its Subsidiaries to such Bank under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations of the Borrower purchased by such
Bank pursuant to Section 12.06(b), and all other claims of any nature or description arising
out of
or connected with this Agreement or any other Credit Document, irrespective of whether or not
such Bank shall have made any demand hereunder and although said Obligations, liabilities or
claims, or any of them, shall be contingent or unmatured. Each Bank shall promptly notify the
Borrower in writing after exercising any of its rights pursuant to this Section 12.02.




          12.03 Notices. Except as otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing and mailed, telegraphed,





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telexed, telecopied, cabled or delivered, if to the Borrower, at the address specified opposite
its signature below; if to any Bank, at its address specified for such Bank in the Administrative
Questionnaire provided by such Bank to the Administrative Agent in connection with the Existing
Credit Agreement, provided, however, that in respect to regular reporting obligations of the
Borrower set forth in Sections 7.01 (a) and (b), all notices and other communications provided for
therein, if to any Bank, may be satisfied by way of electronic distribution (including, but not
limited to, posting on Intralinks or other similar transmission systems); if to the Administrative
Agent, at its Notice Office; or, at such other address as shall be designated by any party in a
written notice to the other patties hereto. All such notices and communications shall be mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, and shall be effective
when received.




          12.04
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 (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Bank (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Bank may assign or otherwise transfer its rights or obligations hereunder except in accordance with
this Section. 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 extant provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, and the
Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement.




          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Bank may assign
to one or more banks, investment funds or other institutions that make or hold commercial loans in
the ordinary course of their businesses all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the time owing to it)
with the prior written consent (such consent not to be unreasonably withheld) of:





     (A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Bank, an Affiliate of a Bank, an Approved Fund
or, if an Event of Default has occurred and is continuing, any other assignee;




     (B) the Administrative Agent and each Letter of Credit Issuer; and



                (ii) Assignments shall be subject to the following additional conditions:





     (A) except in the case of an assignment to a Bank or an Affiliate of a Bank or
an assignment of the entire remaining amount of the assigning Bank’s Commitment or
Loans, the amount of the Commitment or Loans of the assigning Bank 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) shall not be
less than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, provided that no such



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consent of the Borrower shall be required if an Event of Default has
occurred and is continuing;




     (B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Bank’s rights and obligations under this
Agreement;




     (C) 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; and




     (D) the assignee, if it shall not be a Bank, shall deliver to the
Administrative Agent an Administrative Questionnaire.



               For the purposes of this Section 13.04(b), the term “Approved Fund” has the following
meaning:





     “Approved Fund“ means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in
the ordinary course of its business and that is administered or managed by (a) a Bank, (b)
an Affiliate of a Bank or (c) an entity or an Affiliate of an entity that administers or
manages a Bank.




     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Bank under this
Agreement (provided that any liability of the Borrower to such assignee under
Section 1.11, 1.12 or 4.04 shall be limited to the amount, if any, that would have been
payable thereunder by the Borrower in the absence of such assignment, except to the extent
any such amounts are attributable to a Change in Law), and the assigning Bank 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 Bank’s rights and obligations under this Agreement, such Bank
shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 1.11, 1.12, 4.04 and 12.01). Any assignment or transfer by a Bank of rights or
obligations under this Agreement that does not comply with this Section 12.04 shall be
treated for purposes of this Agreement as a sale by such Bank of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.




     (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Bank, and the
Commitment of, and principal amount of the Loans and other Obligations and owing to, each
Bank pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent



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and the Bank may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Bank hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the Borrower, and
any Bank, at any reasonable time and from time to time upon reasonable prior notice.




     (iv) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Bank and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Bank hereunder), the processing and recordation fee
referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.



            (c) (i) Any Bank may, without the consent of the Borrower, the Administrative
Agent or any Letter of Credit Issuer, sell participations to one or more banks or other
entities (a
“Participant”) in all or a portion of such Bank’s rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it); provided
that (A) such
Bank’s obligations under this Agreement shall remain unchanged, (B) such Bank shall remain
solely responsible to the other parties hereto for the performance of such obligations and
(C)the
Borrower, the Administrative Agent and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Bank sells such a participation
shall provide that such Bank 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 Bank will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the first proviso to
Section 12.12(a) that affects such Participant. Subject to paragraph (c)(ii) of this
Section, the
Borrower agrees that each Participant shall be entitled to the benefits of Sections 1.11, 1.12
and
4.04 to the same extent as if it were a Bank and had acquired its interest by assignment
pursuant
to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall
be
entitled to the benefits of Section 12.02 as though it were a Bank provided such Participant
agrees to be subject to Section 12.06(b) as though it were a Bank.





     (ii) A Participant shall not be entitled to receive any greater payment under Section
1.11, 1.12 or 4.04 than the applicable Bank 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 and the entitlement
to greater payment results solely from a Change in Law. A Participant that would be a
Foreign Bank if it were a Bank shall not be entitled to the benefits of Section 1.11 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 4.04 as though it were a
Bank.



            (d) Any Bank may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Bank, including
without
limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this





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Section shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release a Bank
from any of its obligations hereunder or substitute any such pledgee or assignee for such Bank as
a party hereto.




          (e) Notwithstanding anything to the contrary contained herein, any Bank (a “Granting Bank”)
may grant to a special purpose funding vehicle (an, “SPC”) of such Granting Bank, identified as
such in writing from time to time by the Granting Bank to the Administrative Agent and the
Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting
Bank would otherwise be obligated to make to the Borrower pursuant to Section 1.01,
provided that (i) nothing herein shall constitute a commitment to make any Loan by any SPC
and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Bank shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank
to the same extent, and as if, such Loan were made by the Granting Bank. Each party hereto hereby
agrees that (x) no SPC shall be liable for any payment under this Agreement for which a Bank would
otherwise be liable and (y) the Granting Bank for any SPC shall be (and hereby agrees that it is)
liable for any payment under this Agreement for which the SPC would be liable in the absence of
preceding clause (x). In furtherance of the foregoing, each party hereto hereby agrees that, prior
to the date that is one year and one day after the payment in full of all outstanding senior
indebtedness 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
proceedings or similar proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section 1.2.04 any SPC may
(i) with notice to, but without the prior written consent of, the Borrower or the Administrative
Agent and without paying any processing fee therefor, assign all or a portion of its interests in
any Loans to its Granting Bank or to any financial institutions (if consented to by the Borrower
and the Administrative Agent) providing liquidity and/or credit facilities to or for the account
of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by
such SPC to fund such Loans and (ii) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.




          12.05 No Waiver: Remedies Cumulative. No failure or delay on the part of the
Administrative Agent, any Syndication Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between the Borrower and the
Administrative Agent, any Syndication Agent or any Bank shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise of any other right,
power or privilege hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the
Administrative Agent, any
Syndication Agent or any Bank would otherwise have. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent, any Syndication
Agent or the Banks to any other or further action in any circumstances without notice or demand.






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          12.06 Payments Pro Rata. (a) Except as otherwise provided by this Agreement,
the Administrative Agent agrees that promptly after its receipt of each payment from or on
behalf of the Borrower in respect of any Obligations, it shall, except as otherwise provided
in this
Agreement, distribute such payment to the Banks (other than any Bank that has consented in
writing to waive its pro rata share of such payment) pro rata based upon their
respective shares, if
any, of the Obligations with respect to which such payment was received.




          (b) Each of the Banks agrees that, if it should receive any amount hereunder (whether by
voluntary payment, by realization upon security, by the exercise of the right of setoff or
banker’s lien, by counterclaim or cross action, by the enforcement of any right under the Credit
Documents, or otherwise) which is applicable to the payment of the principal of, or interest on,
the Loans, Unpaid Drawings or Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such Obligation then owed and
due to such Bank bears to the total of such Obligations then owed and due to all of the Banks
immediately prior to such receipt, then such Bank receiving such excess payment shall purchase for
cash without recourse or warranty from the other Banks an interest in the Obligations in such
amount as shall result in a proportional participation by all of the Banks in such amount,
provided that if all or any portion of such excess amount is thereafter recovered from
such Bank, such purchase shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest.




          12.07
Calculations; Computations. (a) The financial statements to be furnished
to the Banks pursuant hereto shall be made and prepared in accordance with GAAP consistently
applied throughout the periods involved (except as set forth in the notes thereto or as
otherwise
disclosed in writing by the Borrower to the Banks), provided that, except as otherwise
specifically provided herein, all. computations determining compliance with Section 8,
including
definitions used therein, shall utilize accounting principles and policies in effect at the
time of the
preparation of, and in conformity with those used to prepare, the 2004 historical financial
statements delivered to the Banks pursuant to Section 6.10(b).




          (b) All computations of interest, Facility Fees and other Fees hereunder shall be
made on the actual number of days elapsed over a year of 360 days.




          (c) All determinations of the Stated Amount of Letters of Credit and of the
principal amount of Unpaid Drawings, in each case to the extent denominated in a currency
other
than Dollars, shall be made by converting same into Dollars at (x) in the case of a
determination
of the Borrower’s obligation to reimburse in Dollars a drawing under a Letter of Credit
denominated in a currency other than Dollars or of each Participating Bank’s obligation
pursuant
to Section 2.02(c) to pay the amount of such Participating Bank’s Percentage of an
unreimbursed
payment in respect of any such Letter of Credit, the spot exchange rate for the currency in
question of the respective Letter of Credit Issuer on the date of such drawing a (y) if the
provisions of the foregoing clause (x) are not applicable, the spot exchange rate for the
currency
in question calculated by the Administrative Agent on the last day of the month preceding the
month in which any such determination is being made and at such other times as the
Administrative Agent elects to make such determination, it being understood that the
Administrative Agent shall have no obligation to make any such other determinations.






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          (d) All determinations of the principal amount of Revolving Loans or Competitive Bid Loans
denominated in a currency other than Dollars shall be made by converting same into Dollars at the
spot exchange rate for the currency in question calculated by the Administrative Agent on the last
day of the month preceding the month in which any such determination is being made and at such
other times as the Administrative Agent elects to make such determination, it being understood
that the Administrative Agent shall have no obligation to so elect to make any such other
determinations.




          12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; TRIAL BY JURY. (A) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERE-UNDER
AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
COURTS LACK JURISDICTION OVER THE BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE
AFORESAID COURTS, THAT ANY SUCH COURT LACKS JURISDICTION OVER THE BORROWER. IF FOR ANY REASON THE
BORROWER CEASES TO MAINTAIN AN OFFICE IN NEW YORK CITY, THE BORROWER AGREES TO DESIGNATE, APPOINT
AND EMPOWER A DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF
THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND
ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. THE BORROWER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE BORROWER, AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO
BECOME EFFECTIVE THIRTY DAYS AFTER SUCH MAILING. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY CREDIT DOCUMENT THAT SERVICE OF
PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY BANK OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR





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OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.




          (B) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. EACH OF THE BORROWER AND EACH BANK IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO
TRIAL BY JURY IN ANY COURT OR JURISDICTION, INCLUDING WITHOUT LIMITATION THOSE REFERRED TO IN
CLAUSE (A) ABOVE, IN RESPECT OF ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
OTHER CREDIT DOCUMENTS.




          12.09
Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each of which when
so
executed and delivered shall be an original, but all of which shall together constitute one
and the
same instrument. A set of counterparts executed by all the parties hereto shall be lodged with
the
Borrower and the Administrative Agent.




          12.10
Effectiveness. This Agreement shall become effective on the date (the
“Restatement Effective Date”) on which (i) each of the Borrower, the Administrative
Agent,
each Syndication Agent and each Bank shall have signed a copy hereof (whether the same or
different copies) and shall have delivered the same to the Administrative Agent at its Notice
Office or, in the case of the Banks, shall have given to the Administrative Agent telephonic
(confirmed in writing), written, telex or telecopy notice (actually received) at such office
that the
same has been signed and mailed to it and (ii) the conditions contained in Sections 5 and 6
are
met to the satisfaction of the Administrative Agent, the Syndication Agents and the Required
Banks (determined, immediately after the occurrence of the Restatement Effective Date). Unless
the Administrative Agent has received actual notice from any Bank that the conditions
contained in Sections 5 and 6 have not been met to its satisfaction, upon the satisfaction of the
condition
described in clause (i) of the immediately preceding sentence and upon the Administrative
Agent’s good faith determination that the conditions described in clause (ii) of the
immediately
preceding sentence have been met, then the Restatement Effective Date shall have been deemed
to have occurred, regardless of any subsequent determination that one or more of the
conditions
thereto had not been met (although the occurrence of the Restatement Effective Date shall not
release the Borrower from any liability for failure to satisfy one or more of the applicable
conditions contained in Section 5 or 6). The Administrative Agent will give the Borrower and
each Bank prompt written notice of the occurrence of the Restatement Effective Date.




          12.11
Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Agreement.





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          12.12
Amendment or Waiver. (a) Neither this Agreement nor any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless
such change, waiver, discharge or termination is in writing signed by the Borrower and the Required
Banks, provided that no such change, waiver, discharge or termination shall, without the
consent of each Bank affected thereby, (i) extend the final scheduled maturity of any Unpaid
Drawing, Loan or Note (it being understood that any waiver of an installment on, the application of
any prepayment or the method of application of any prepayment to the amortization of the Loans
shall not constitute an extension of the final scheduled maturity date), or reduce the rate or
extend the time of payment of interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or Fees, or reduce the amount thereof, (ii) amend,
modify or waive any provision of this Section, (iii) reduce the percentage specified in the
definition of Required Banks (it being understood that, with the consent of the Required Banks,
additional extensions of credit pursuant to this Agreement may be included in the determination of
the Required Banks on substantially the same basis as an extension of Loans, Letters of Credit and
Commitments are included on the Restatement Effective Date), or (iv) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under any Credit Document (except as
expressly provided herein or therein); provided further that no such change, waiver,
discharge or termination shall (w) increase the Commitment of any Bank over the amount thereof then
in effect without the consent of such Bank (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the
Total Commitment shall not constitute an increase of the Commitment of any Bank, and that an
increase in the available portion of any Commitment of any Bank shall not constitute an increase in
the Commitment of such Bank), (x) without the consent of each Letter of Credit Issuer, amend,
modify or waive any provision of Section 2 or alter its rights or obligations with respect to
Letters of Credit or (y) without the consent of the Administrative Agent or the Syndication Agents,
respectively, amend, modify or waive any provision of Section 11 as same applies to such
Administrative Agent, or Syndication Agents, as the case may be, or any other provision as same
relates to the rights or obligations of such Administrative Agent or Syndication Agents, as the
case may be.




          (b) If, in connection with any proposed change, waiver, discharge or termination of any of
the provisions of this Agreement as contemplated by clauses (i) through (iv), inclusive, of the
first proviso to Section 12.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained, then the Borrower
shall have the right to replace each such non-consenting Bank or Banks (so long as all
non-consenting Banks are so replaced) with one or more Replacement Banks pursuant to Section
1.14 so long as at the time of such replacement, each such Replacement Bank consents to the
proposed change, waiver, discharge or termination, provided that the Borrower shall not have the
right to replace a Bank solely as a result of the exercise of such Bank’s rights (and the
withholding of any required consent by such Bank) pursuant to the second proviso to Section
12.12(a).




          12.13
Survival. All indemnities set forth herein including, without limitation, in
Section 1.11, 1.12, 2.05, 2.06, 4.04, 11.07 or 12.01 shall survive the execution and delivery of
this Agreement and the making and repayment of the Loans and the satisfaction of all other
Obligations.






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          12.14 Domicile of Loans. Each Bank may transfer and carry its Loans or
participations at, to or for the account of any branch office, subsidiary or affiliate of such
Bank,
provided that the Borrower shall not be responsible for costs arising under Section
1.11, 1.12,
2.05, or 4.04 resulting from any such transfer (other than a transfer pursuant to Section
1.13) to
the extent such costs would not otherwise be applicable to such Bank prior to such transfer.




          12.15
Confidentiality. (a) Subject to the provisions of clause (b) of this Section
12.15, each Bank agrees that it will use its best efforts not to disclose without the prior
consent of
the Borrower (other than to its employees, auditors, advisors or counsel or to another Bank if
the
Bank or such Bank’s holding or parent company in its sole discretion determines that any such
party should have access to such information, provided such Persons shall be subject to the
provisions of this Section 12.15 to the same extent as such Bank) any information with respect
to
the Borrower or any of its Subsidiaries which is now or in the future furnished pursuant to
this
Agreement or any other Credit Document and which is designated by the Borrower in writing as
confidential, provided that any Bank may disclose any such information (a) as has
become
generally available to the public, (b) as may be required or appropriate in any report,
statement or
testimony submitted to any municipal, state or Federal regulatory body having or claiming to
have jurisdiction over such Bank or to the Federal Reserve Board or the Federal Deposit
Insurance Corporation or similar organizations (whether in the United States or elsewhere) or
their successors, (c) as may be required or appropriate in respect to any summons or subpoena
or
in connection with any litigation, (d) in order to comply with any law, order, regulation or
ruling
applicable to such Bank, (e) to the Administrative Agent and (f) to any prospective or actual
transferee or participant in connection with any contemplated or actual transfer or
participation
of any of the Notes or Commitment or any interest therein by such Bank, provided that
such
prospective transferee or participant executes an agreement with such Bank containing
provisions substantially the same as to those contained in this Section.




          (b) The Borrower hereby acknowledges and agrees that each Bank may share with any of its
affiliates any information related to the Borrower or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the creditworthiness of the Borrower and
its Subsidiaries), provided such Persons shall be subject to the provisions of this Section 12.15
to the same extent as such Bank.




          12.16
The Patriot Act. Each Bank subject to the USA PATRIOT ACT (Title 111 of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”) hereby notifies the Borrower that pursuant
to the requirements of the Act, it is required to obtain, verify and record information that
identifies the Borrower and other information that will allow such Bank to identify the Borrower in
accordance with the Act.




          12.17 Termination of Subsidiary Guaranty. All Subsidiary Guaranties under and as
defined in the Existing Credit Agreement are hereby terminated as of the Restatement Effective Date
and no such Subsidiary Guaranty executed in connection with the Existing Credit Agreement shall
have any force or effect after the Restatement Effective Date.




* * *





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          IN WITNESS WHEREOF, each of the parties hereto has caused, a counterpart of this
Agreement to be duly executed and delivered as of the date first above written.




	 	 	 	 	 	 	 
	Address:	 	AMETEK, INC.	 	 
	37 North Valley Building 4
	 	 	 	 	 	 
	P.O. Box 1764

	 	By:
	 	/s/ Deirdre D. Saunders	 	 
	Paoli, Pennsylvania 19301-0801

	 	 	 	Title: Vice President and Treasurer	 	 
	Telephone No.: 610-647-2121
	 	 	 	 	 	 
	Telecopier No.: 610-647-0211
	 	 	 	 	 	 
	Attention: Chief Financial Officer
	 	 	 	 	 	 






	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,
 	 
	 	  Individually and as the Administrative Agent

 	 
	 	By:  	/s/ Helene Sprung
 	 
	 	 	Title: SVP — Division Credit Executive 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,
 	 
	 	  Individually and as a Syndication Agent

 	 
	 	By:  	/s/ Richard R. Powell
 	 
	 	 	Title: Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION,

  Individually and as a Syndication Agent

 	 
	 	By:  	/s/ Denise D. Killen
 	 
	 	 	Title: Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	SUNTRUST BANK,

  Individually and as a Syndication Agent

 	 
	 	By:  	/s/ Van Buren Knick II
 	 
	 	 	Title: Vice President 	 
	 	 	 	 
	 



Credit Agreement














 








	 	 	 	 	 
	 	WACHOVIA BANK N.A., 
  Individually and as a Syndication Agent 

 	 
	 	By:  	/s/ Sarah Warren
 	 
	 	 	Title: Director 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	MANUFACTURERS AND TRADERS TRUST

  COMPANY 

 	 
	 	By:  	/s/ Joshua Becker
 	 
	 	 	Title: Assistant Vice President      	 
	 	 	 	 
	 



	 	 	 	 	 
	 	BANCA INTESA

 	 
	 	By:  	/s/ John J. Michalisin
 	 
	 	 	Title: First VP      	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                /s/ Anthony F. Giobbi
 	 
	 	 	Title: First VP 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK

 	 
	 	By:  	/s/ Roger Grossman
 	 
	 	 	Title: Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	ABN AMRO BANK N.V.

 	 
	 	By:  	/s/ Robert H. Steelman
 	 
	 	 	Title: Director      	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                /s/ Christopher M. Plumb
 	 
	 	 	Title: Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	COMERICA BANK 

 	 
	 	By:  	/s/ Richard C. Hampson
 	 
	 	 	Title: Vice President      	 
	 	 	 	 
	 



Credit Agreement















 








	 	 	 	 	 
	 	CITIZENS BANK OF PENNSYLVANIA 

 	 
	 	By:  	/s/ Megan Soltys
 	 
	 	 	Title: Vice President        	 
	 	 	 	 
	 



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Suzannah Harris
 	 
	 	 	Title; Vice President 	 
	 	 	 	 
	 



Credit Agreement