exv10w1






EXHIBIT 10.1






 

 










Published CUSIP Number: 45167SAA0




$700,000,000




CREDIT AGREEMENT



Dated as of June 27, 2011



among



IDEX CORPORATION,



as the Company



and



CERTAIN OF ITS SUBSIDIARIES,



as Designated Borrowers,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and

an L/C Issuer,



JPMORGAN CHASE BANK, N.A., and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Co-Syndication Agents



THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

U.S. BANK, NATIONAL ASSOCIATION,

and

MIZUHO CORPORATE BANK, LTD.,

as Co-Documentation Agents



and

The Other Lenders Party Hereto



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

J.P. MORGAN SECURITIES LLC,

and

WELLS FARGO SECURITIES, LLC,

as Joint Lead Arrangers and Joint Book Managers



 

 








 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	1.01
	 	DEFINED TERMS	 	 	1	 
	1.02
	 	OTHER INTERPRETIVE PROVISIONS	 	 	19	 
	1.03
	 	ACCOUNTING TERMS	 	 	20	 
	1.04
	 	EXCHANGE RATES; CURRENCY EQUIVALENTS	 	 	20	 
	1.05
	 	ADDITIONAL ALTERNATIVE CURRENCIES	 	 	20	 
	1.06
	 	CHANGE OF CURRENCY	 	 	21	 
	1.07
	 	ROUNDING	 	 	21	 
	1.08
	 	TIMES OF DAY	 	 	21	 
	1.09
	 	LETTER OF CREDIT AMOUNTS	 	 	21	 
	ARTICLE II THE CREDITS	 	 	22	 
	2.01
	 	COMMITTED LOANS	 	 	22	 
	2.02
	 	BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS	 	 	22	 
	2.03
	 	[RESERVED]	 	 	23	 
	2.04
	 	LETTERS OF CREDIT	 	 	24	 
	2.05
	 	SWING LINE LOANS	 	 	30	 
	2.06
	 	PREPAYMENTS	 	 	32	 
	2.07
	 	TERMINATION OR REDUCTION OF COMMITMENTS	 	 	33	 
	2.08
	 	REPAYMENT OF LOANS	 	 	34	 
	2.09
	 	INTEREST	 	 	34	 
	2.10
	 	FEES	 	 	34	 
	2.11
	 	COMPUTATION OF INTEREST AND FEES	 	 	35	 
	2.12
	 	EVIDENCE OF DEBT	 	 	35	 
	2.13
	 	PAYMENTS GENERALLY; ADMINISTRATIVE AGENT’S CLAWBACK	 	 	35	 
	2.14
	 	SHARING OF PAYMENTS BY LENDERS	 	 	37	 
	2.15
	 	INCREASE IN COMMITMENTS	 	 	37	 
	2.16
	 	EXTENSION OF MATURITY DATE	 	 	38	 
	2.17
	 	NO ADVISORY OR FIDUCIARY RESPONSIBILITY	 	 	39	 
	2.18
	 	DESIGNATED BORROWERS	 	 	39	 
	2.19
	 	CASH COLLATERAL	 	 	41	 
	2.20
	 	DEFAULTING LENDERS	 	 	41	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	43	 
	3.01
	 	TAXES	 	 	43	 
	3.02
	 	ILLEGALITY	 	 	45	 
	3.03
	 	INABILITY TO DETERMINE RATES	 	 	46	 
	3.04
	 	INCREASED COSTS	 	 	46	 
	3.05
	 	COMPENSATION FOR LOSSES	 	 	47	 
	3.06
	 	MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS	 	 	48	 
	3.07
	 	SURVIVAL	 	 	48	 
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	48	 
	4.01
	 	CONDITIONS OF INITIAL CREDIT EXTENSIONS	 	 	48	 
	4.02
	 	CONDITIONS TO ALL CREDIT EXTENSIONS	 	 	49	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES	 	 	50	 
	5.01
	 	CORPORATE EXISTENCE AND POWER	 	 	50	 
	5.02
	 	CORPORATE AUTHORIZATION; NO CONTRAVENTION	 	 	50	 
	5.03
	 	GOVERNMENTAL AUTHORIZATION	 	 	50	 
	5.04
	 	BINDING EFFECT	 	 	51	 
	5.05
	 	LITIGATION	 	 	51	 
	5.06
	 	NO DEFAULT	 	 	51	 
	5.07
	 	ERISA COMPLIANCE	 	 	51	 
	5.08
	 	USE OF PROCEEDS; MARGIN REGULATIONS	 	 	52	 
	5.09
	 	TITLE TO PROPERTIES	 	 	52	 
	5.10
	 	TAXES	 	 	52	 
	5.11
	 	FINANCIAL CONDITION	 	 	52	 
	5.12
	 	ENVIRONMENTAL MATTERS	 	 	52	 
	5.13
	 	REGULATED ENTITIES	 	 	52	 
	5.14
	 	SUBSIDIARIES	 	 	52	 
	5.15
	 	INSURANCE	 	 	53	 
	5.16
	 	SWAP OBLIGATIONS	 	 	53	 






i 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	5.17
	 	OFAC	 	 	53	 
	5.18
	 	FULL DISCLOSURE	 	 	53	 
	ARTICLE VI AFFIRMATIVE COVENANTS	 	 	53	 
	6.01
	 	FINANCIAL STATEMENTS	 	 	53	 
	6.02
	 	CERTIFICATES; OTHER INFORMATION	 	 	54	 
	6.03
	 	NOTICES	 	 	54	 
	6.04
	 	PRESERVATION OF CORPORATE EXISTENCE, ETC.	 	 	55	 
	6.05
	 	MAINTENANCE OF PROPERTY	 	 	55	 
	6.06
	 	INSURANCE	 	 	55	 
	6.07
	 	PAYMENT OF TAX OBLIGATIONS	 	 	55	 
	6.08
	 	COMPLIANCE WITH LAWS	 	 	55	 
	6.09
	 	COMPLIANCE WITH ERISA	 	 	55	 
	6.10
	 	INSPECTION OF PROPERTY AND BOOKS AND RECORDS	 	 	55	 
	6.11
	 	ENVIRONMENTAL LAWS	 	 	56	 
	6.12
	 	USE OF PROCEEDS	 	 	56	 
	ARTICLE VII NEGATIVE AND FINANCIAL COVENANTS	 	 	56	 
	7.01
	 	LIMITATION ON LIENS	 	 	56	 
	7.02
	 	DISPOSITION OF ASSETS	 	 	57	 
	7.03
	 	CONSOLIDATIONS AND MERGERS	 	 	58	 
	7.04
	 	LOANS AND INVESTMENTS	 	 	58	 
	7.05
	 	LIMITATION ON INDEBTEDNESS	 	 	59	 
	7.06
	 	TRANSACTIONS WITH AFFILIATES	 	 	60	 
	7.07
	 	CONTINGENT OBLIGATIONS	 	 	60	 
	7.08
	 	RESTRICTED PAYMENTS	 	 	60	 
	7.09
	 	ERISA	 	 	61	 
	7.10
	 	CHANGE IN BUSINESS	 	 	61	 
	7.11
	 	ACCOUNTING CHANGES	 	 	61	 
	7.12
	 	MODIFICATIONS, ETC. OF SUBORDINATED DEBT AND RELATED DOCUMENTS	 	 	61	 
	7.13
	 	SALE-LEASEBACKS	 	 	61	 
	7.14
	 	NO NEGATIVE PLEDGES; SUBSIDIARY PAYMENTS	 	 	61	 
	7.15
	 	FINANCIAL COVENANTS	 	 	61	 
	ARTICLE VIII EVENTS OF DEFAULT	 	 	62	 
	8.01
	 	EVENT OF DEFAULT	 	 	62	 
	8.02
	 	REMEDIES UPON EVENT OF DEFAULT	 	 	63	 
	8.03
	 	APPLICATION OF FUNDS	 	 	64	 
	ARTICLE IX THE AGENT	 	 	64	 
	9.01
	 	APPOINTMENT AND AUTHORITY	 	 	64	 
	9.02
	 	RIGHTS AS A LENDER	 	 	64	 
	9.03
	 	EXCULPATORY PROVISIONS	 	 	65	 
	9.04
	 	RELIANCE BY ADMINISTRATIVE AGENT	 	 	65	 
	9.05
	 	DELEGATION OF DUTIES	 	 	65	 
	9.06
	 	RESIGNATION OF ADMINISTRATIVE AGENT	 	 	66	 
	9.07
	 	NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS	 	 	66	 
	9.08
	 	NO OTHER DUTIES, ETC.	 	 	66	 
	ARTICLE X CONTINUING GUARANTY	 	 	66	 
	10.01
	 	GUARANTY	 	 	66	 
	10.02
	 	RIGHTS OF LENDERS	 	 	67	 
	10.03
	 	CERTAIN WAIVERS	 	 	67	 
	10.04
	 	OBLIGATIONS INDEPENDENT	 	 	67	 
	10.05
	 	SUBROGATION	 	 	67	 
	10.06
	 	TERMINATION; REINSTATEMENT	 	 	67	 
	10.07
	 	SUBORDINATION	 	 	68	 
	10.08
	 	STAY OF ACCELERATION	 	 	68	 
	10.09
	 	CONDITION OF DESIGNATED BORROWER	 	 	68	 
	ARTICLE XI MISCELLANEOUS	 	 	68	 
	11.01
	 	AMENDMENTS, ETC.	 	 	68	 
	11.02
	 	NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION	 	 	69	 
	11.03
	 	NO WAIVER; CUMULATIVE REMEDIES	 	 	70	 
	11.04
	 	EXPENSES; INDEMNITY; DAMAGE WAIVER	 	 	71	 
	11.05
	 	PAYMENTS SET ASIDE	 	 	72	 
	11.06
	 	SUCCESSORS AND ASSIGNS	 	 	72	 
	11.07
	 	TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY	 	 	75	 






ii 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	11.08
	 	RIGHT OF SETOFF	 	 	76	 
	11.09
	 	INTEREST RATE LIMITATION	 	 	76	 
	11.10
	 	COUNTERPARTS; INTEGRATION; EFFECTIVENESS	 	 	76	 
	11.11
	 	SURVIVAL OF REPRESENTATIONS AND WARRANTIES	 	 	77	 
	11.12
	 	SEVERABILITY	 	 	77	 
	11.13
	 	REPLACEMENT OF LENDERS	 	 	77	 
	11.14
	 	GOVERNING LAW; JURISDICTION; ETC.	 	 	77	 
	11.15
	 	WAIVER OF JURY TRIAL	 	 	78	 
	11.16
	 	USA PATRIOT ACT NOTICE	 	 	78	 
	11.17
	 	JUDGMENT CURRENCY	 	 	78	 
	11.18
	 	ENTIRE AGREEMENT	 	 	79	 






iii 









 






	 	 	 

	SCHEDULES
	 	 
	 
	 	 
	Schedule 1.01
	 	Mandatory Cost Formulae
	Schedule 2.01
	 	Commitments and Applicable Percentages
	Schedule 2.04
	 	Existing Letters of Credit
	Schedule 5.05
	 	Litigation
	Schedule 5.07
	 	ERISA Matters
	Schedule 5.11
	 	Permitted Liabilities
	Schedule 5.12
	 	Environmental Matters
	Schedule 5.14
	 	Subsidiaries and Minority Interests
	Schedule 5.15
	 	Insurance Matters
	Schedule 7.01
	 	Permitted Liens
	Schedule 7.04
	 	Permitted Investments
	Schedule 7.05
	 	Permitted Indebtedness
	Schedule 7.07
	 	Contingent Obligations
	Schedule 11.02
	 	Lending Offices; Addresses for Notices
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	Exhibit A
	 	Form of Committed Loan Notice
	Exhibit B
	 	Form of Swing Line Loan Notice
	Exhibit C
	 	Form of Note
	Exhibit D
	 	Form of Compliance Certificate
	Exhibit E
	 	Form of Assignment and Assumption
	Exhibit F
	 	Designated Borrower Request and Assumption Agreement
	Exhibit G
	 	Designated Borrower Notice







iv 











 






CREDIT AGREEMENT




     This CREDIT AGREEMENT is entered into as of June 27, 2011 among IDEX CORPORATION, a Delaware
corporation (the “Company”), FLUID MANAGEMENT EUROPE B.V., an entity organized under the
laws of the Netherlands (“FME”), IDEX UK LTD., a company registered in England and Wales
(“IDEX UK”) and certain other Subsidiaries of the Company from time to time party hereto
pursuant to Section 2.18 (each, including FME and IDEX UK, a “Designated Borrower”
and, collectively with the Company, the “Borrowers” and, each a “Borrower”), each
lender from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an L/C
Issuer.



     WHEREAS, the Company is a party to that certain Amended and Restated Credit Agreement, dated
as of December 21, 2006 (as heretofore amended, amended and restated, supplemented or otherwise
modified, the “Existing Credit Agreement”), with the financial institutions party thereto
as lenders (the “Existing Lenders”) and the Administrative Agent; and



     NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, as
follows:



     The Borrowers have requested that the Lenders provide a revolving credit facility and the
Lenders are willing to do so on the terms and conditions set forth herein.



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



I.

DEFINITIONS and accounting terms




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



     “Accounts Receivable” means presently existing and hereafter arising or acquired
accounts receivable, general intangibles, choses in action and other forms of obligations and
receivables relating in any way to Inventory or arising from the sale of Inventory or the rendering
of services or howsoever otherwise arising, and, with respect to any of the foregoing receivables
or obligations, (a) all of the interest of the Company or any of its Subsidiaries in the goods
(including returned goods) the sale of which gave rise to such receivable or obligation after the
passage of title thereto to any obligor, (b) all other Liens and property subject thereto from time
to time purporting to secure payment of such receivables or obligations, (c) all guarantees,
insurance, letters of credit and other agreements or arrangements of whatever character from time
to time supporting or securing payment of any such receivables or obligations, (d) all interests of
the Receivables Subsidiary under the documents evidencing a Permitted Receivables Purchase Facility
and any permitted performance guaranty given in connection therewith, and (e) all records relating
to any of the foregoing and all proceeds and products of any of the foregoing.



     “Acquisition” means any transaction or series of related transactions for the purpose
of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the
assets of a Person, or of any business or division of a Person or (b) the acquisition of in excess
of fifty percent (50%) of the capital stock, partnership interests, membership interests or equity
of any Person, or otherwise causing any Person to become a Subsidiary.



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



     “Administrative Agent’s Office” means, with respect to any currency, the
Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02
with respect to such currency, or such other address or account with respect to such currency as
the Administrative Agent may from time to time notify to the Company and the Lenders.



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



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



     “Aggregate Commitments” means, at any time, the Commitments of all the Lenders in
effect at such time.



Page 1









 





     “Agreement” means this Credit Agreement as the same may be amended, supplemented,
amended and restated or otherwise modified from time to time.



     “Alternative Currency” means each of Euro, Sterling, Yen, Swiss Francs, Canadian
Dollars and each other currency (other than Dollars) that is approved in accordance with
Section 1.05.



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



     “Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $350,000,000. The Alternative Currency Sublimit is part of, and not in addition
to, the Aggregate Commitments.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to adjustment as provided in Section 2.20. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuers to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments
have expired, then the Applicable Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.



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



Applicable Rate




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Eurocurrency	 	 
	 	 	 	 	 	 	Rate +	 	 
	Pricing	 	Debt Ratings	 	 	 	Letters of	 	Base Rate
	Level	 	S&P/Moody’s/Fitch	 	Facility Fee	 	Credit	 	+
	1
	 	A-/A3/A- or higher
	 	0.125%
	 	0.875%
	 	0.000%
	2
	 	BBB+/Baa1/BBB+
	 	0.175%
	 	0.950%
	 	0.000%
	3
	 	BBB/Baa2/BBB
	 	0.200%
	 	1.050%
	 	0.050%
	4
	 	BBB-/Baa3/BBB-
	 	0.250%
	 	1.375%
	 	0.375%
	5
	 	BB+/Ba1/BB+or lower
	 	0.300%
	 	1.700%
	 	0.700%







     “Debt Rating” means, as of any date of determination, the rating as determined
by S&P, Moody’s and Fitch (collectively, the “Debt Ratings”) of the Company’s
non-credit-enhanced, senior unsecured long-term debt; provided, that, if the Debt Ratings
fall within different levels: (a) if only two Rating Agencies provide a rating, (i) if one
rating is one level higher than the other rating, the Applicable Rate will be based on the
higher Debt Rating (with the Debt Rating for Pricing Level 1 being the highest and the Debt
Rating for Pricing Level 5 being the lowest) and (ii) otherwise, the Applicable Rate will be
based on the rating that is one level lower than the higher rating; (b) otherwise, (i) if
two of the Debt Ratings are at the same level, the Applicable Rate will be based on such
level and (ii) if each of the three ratings fall within different levels, then the
Applicable Rate will be based on the Debt Rating that is in between the highest and lowest
rating; (c) if only one Debt Rating is provided, the Pricing Level that is one level lower
than that of such Debt Rating shall apply; and (d) if no Debt Ratings exist, Pricing Level 5
shall apply.


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




Page 2









 








     “Applicable Designee” means any Affiliate of a Lender designated in writing from time
to time to the Administrative Agent with the consent of the Administrative Agent (which such
consent shall not be unreasonably withheld or delayed) to fund all or any portion of such Lender’s
share of a Committed Borrowing under this Agreement.



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



     “Applicant Borrower” has the meaning specified in Section 2.18.



     “Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan
Securities LLC and Wells Fargo Securities, LLC, in their respective capacities as joint lead
arrangers.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit E or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, without duplication, on any date, (a) in respect of
any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Off
Balance Sheet Obligation which is a lease, the capitalized amount of the remaining lease payments
under the relevant lease that would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP if such lease were accounted for as a capital lease, (c) in respect of
any Permitted Receivables Purchase Facility, the amount of Receivables Facility Attributed
Indebtedness and (d) in respect of any other Off Balance Sheet Obligation, the amount of such
Obligations which would reasonably be expected to be characterized as indebtedness upon the
insolvency or bankruptcy of such Person.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.07, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to
Section 8.02.



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



     “Bank of America Fee Letter” means the letter agreement, dated as of May 26, 2011,
among the Company, the Administrative Agent and Merrill Lynch, Pierce, Fenner & Smith Incorporated.



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



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



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base
Rate Loans shall be denominated in Dollars and shall only be available to the Company.



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



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



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



Page 3









 






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




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




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




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



     “Canadian Dollar” means the lawful currency of Canada.



     “Capital Lease” has the meaning specified in the definition of “Capital Lease
Obligations”.



     “Capital Lease Obligations” means the principal component of all monetary obligations
of the Company or any of its Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, is classified as a capital lease (“Capital Lease”).



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, the applicable L/C Issuer or the Swing Line
Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect
of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof
(as the context may require), cash or deposit account balances or, if the applicable L/C Issuer or
the Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other
credit support, in each case pursuant to documentation in form and substance reasonably
satisfactory to (a) the Administrative Agent and (b) the applicable L/C Issuer or the Swing Line
Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the
foregoing and shall include the proceeds of such cash collateral and other credit support.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any Governmental Authority;
provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall
Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives
promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States regulatory authorities, in each case
pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date
enacted, adopted or issued.



     “Change of Control” means any of the following: (a) any person or group of persons
(within the meaning of the Exchange Act) shall have acquired beneficial ownership (within the
meaning of Rule 13d promulgated by the SEC under the Exchange Act) of thirty percent (30%) or more
of the issued and outstanding shares of the Company’s capital stock having the right to vote for
the election of directors of the Company under ordinary circumstances; (b) during any period of
twelve consecutive calendar months, individuals who at the beginning of such period constituted the
Company’s board of directors (together with any new directors whose election by the Company’s board
of directors or whose nomination for election by the Company’s stockholders was approved by a vote
of a majority of the directors then still in office who either were directors at the beginning of
such period or whose election or nomination for election was previously so approved) cease for any
reason other than death or disability to constitute a majority of the directors then in office; or
(c) the Company shall cease to own directly or indirectly, all of the issued and outstanding shares
(exclusive of nominal director qualifying shares, to the extent applicable) of each Designated
Borrower’s capital stock having the right to vote for the election of the applicable Designated
Borrower’s board of directors (or equivalent governing body).



Page 4









 





     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 11.01.



     “Code” means the Internal Revenue Code of 1986, and all rules and regulations
promulgated thereunder.



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



     “Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type, in the same currency and, in the case of Eurocurrency Rate Loans, having the same
Interest Period made by each of the Lenders pursuant to Section 2.01.



     “Committed Loan” has the meaning specified in Section 2.01.



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



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



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



     “Consolidated Debt” means, as of any date of determination, for the Company and its
Subsidiaries, the sum, without duplication, of (a) all Indebtedness of the Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP, (b) Attributable
Indebtedness of the Company and its Subsidiaries in respect of Capital Leases, Off Balance Sheet
Obligations and a Permitted Receivables Purchase Facility, and (c) all Guaranty Obligations with
respect to debt of the types specified in subsections (a) and (b) above of Persons other than the
Company or any Subsidiary.



     “Consolidated Interest Expense” means, for any period, the sum, without duplication,
of total interest expense (including that attributable to Capital Leases in accordance with GAAP)
of the Company and its Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of the Company 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, but excluding, however, any amortization of deferred financing costs, all as determined
on a consolidated basis for the Company and its consolidated Subsidiaries in accordance with GAAP
plus the interest component of Off Balance Sheet Obligations. Any calculation of pro forma
Consolidated Interest Expense with respect to an Acquisition shall be done on the basis that (A)
any Indebtedness incurred or assumed in connection with such Acquisition was incurred or assumed at
the beginning of the pro forma period, (B) such Indebtedness was repaid from operating cash flow
over the pro forma period at the intervals and in the amounts reasonably projected to be paid in
respect of such Indebtedness over the twelve-month (12-month) period immediately following the
Acquisition and (C) if such Indebtedness bears a floating interest rate, such interest shall be
paid over the pro forma period at the rate in effect on the date of such Acquisition.



     “Consolidated Net Income” and “Consolidated Net Loss” mean, respectively, with respect
to any period for any Person, the aggregate of the net income (loss) of such Person for such
period, determined in accordance with GAAP on a consolidated basis; provided that the net
income (loss) of any other Person which is not a Subsidiary shall be included in the Consolidated
Net Income of such Person only to the extent of the amount of cash dividends or distributions paid
to such Person or to a consolidated Subsidiary of such Person. There shall be excluded from
Consolidated Net Income (a) non-cash extraordinary losses as long as no reserve is required to be
established in accordance with GAAP and (b) the excess (but not the deficit), if any, of (i) any
gain which must be treated as an extraordinary item under GAAP or any gain realized upon the sale
or other disposition of any real property or equipment that is not sold in the ordinary course of
business or of any capital stock of a Subsidiary of such Person over (ii) any loss which is not
excluded pursuant to subsection (a) above.



     “Consolidated Net Worth” means, as of any date of determination, for the Company and
its Subsidiaries on a consolidated basis, shareholders’ equity as of that date determined in
accordance with GAAP.



     “Consolidated Total Assets” means the total assets of the Company and its Subsidiaries
determined in accordance with GAAP.



Page 5









 





     “Contingent Obligation” means, as to any Person, any direct or indirect liability of
that Person, whether or not contingent, with or without recourse, (a) with respect to any
Indebtedness, lease, dividend, letter of credit or other obligation (the “primary obligations”) of
another Person (the “primary obligor”), including any obligation of that Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any security therefor, (ii) to advance
or provide funds for the payment or discharge of any such primary obligation, or to maintain
working capital or equity capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of the primary obligor,
(iii) 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 (iv) otherwise to assure or hold harmless the holder of any such primary
obligation against loss in respect thereof (each, a “Guaranty Obligation”); (b) with
respect to any Surety Instrument issued for the account of that Person or as to which that Person
is otherwise liable for reimbursement of drawings or payments; (c) to purchase any materials,
supplies or other property from, or to obtain the services of, another Person if the relevant
contract or other related document or obligation requires that payment for such materials, supplies
or other property, or for such services, shall be made regardless of whether delivery of such
materials, supplies or other property is ever made or tendered, or such services are ever performed
or tendered, or (d) in respect of any Swap Contract. The amount of any Contingent Obligation shall
(a) in the case of Guaranty Obligations, be deemed equal to the stated or determinable amount of
the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof provided, that if
any Guaranty Obligation (i) is limited to an amount less than the obligations guaranteed or
supported the amount of the corresponding Contingent Obligation shall be equal to the lesser of the
amount determined pursuant to the initial clause of this sentence and the amount to which such
guaranty is so limited or (ii) is limited to recourse against a particular asset or assets of such
Person the amount of the corresponding Contingent Obligation shall be equal to the lesser of the
amount determined pursuant to the initial clause of this sentence and the fair market value of such
asset or assets at the date for determination of the amount of the Contingent Obligation, (b) in
the case of other Contingent Obligations other than in respect of Swap Contracts, be equal to the
maximum reasonably anticipated liability in respect thereof, and (c) in the case of Contingent
Obligations in respect of Swap Contracts, be equal to the Swap Termination Value.



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



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



     “Cost of Funds Rate” means, as of any day, the rate of interest determined by the
Administrative Agent to be representative of its or the applicable Lenders’ cost of funds, as
applicable, to extend or maintain credit under this Agreement on such day.



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



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



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



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



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



     “Defaulting Lender” means, subject to Section 2.20(b), any Lender as to which
any of the following has occurred (as determined by the Administrative Agent): (a) such Lender has
failed to perform any of its funding obligations hereunder, including in respect of its Loans or
participations in respect of Letters of Credit or Swing Line Loans, within three Business Days of
the date required to be funded by it hereunder (unless such Lender has notified the Administrative
Agent and the Company in writing that such failure is the result of such Lender’s good faith
determination that one or more conditions precedent to funding



Page 6









 




has not been satisfied (which conditions precedent will be specifically identified in such
writing), (b) such Lender has notified the Company or the Administrative Agent that it does not
intend to comply with its funding obligations or has made a public statement to that effect with
respect to its funding obligations hereunder or generally under other agreements in which it
commits to extend credit (unless such Lender has notified the Administrative Agent and the Company
in writing that such failure is the result of such Lender’s good faith determination that one or
more conditions precedent to funding has not been satisfied (which conditions precedent will be
specifically identified in such writing), (c) such Lender has failed, within three Business Days
after request by the Administrative Agent, to confirm in a manner satisfactory to the
Administrative Agent that it will comply with its funding obligations, or (d) such Lender has, or
has a direct or indirect parent company that has, (i) become the subject of a proceeding under any
Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person charged with reorganization or liquidation of its business
or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its
consent to, approval of or acquiescence in any such proceeding or appointment; provided
that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of
any equity interest in that Lender or any direct or indirect parent company thereof by a
Governmental Authority.




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



     “Designated Borrower Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $350,000,000. The Designated Borrower Sublimit is part of, and not in addition to,
the Aggregate Commitments.



     “Designated Borrower Notice” has the meaning specified in Section 2.18.



     “Designated Borrower Request and Assumption Agreement” has the meaning specified in
Section 2.18.



     “Disposition” has the meaning specified in Section 7.02.



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



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



     “Domestic Subsidiary” means any Subsidiary of the Company that is not a Foreign
Subsidiary.



     “EBIT” means, for any period, for the Company and its Subsidiaries on a consolidated
basis, determined in accordance with GAAP, the sum of (a) Consolidated Net Income for such period
plus (b) each of the following (without duplication): (i) all amounts treated as expenses
for interest plus (ii) all accrued taxes plus (iii) the interest component with
respect to Off Balance Sheet Obligations, in each case to the extent included in the determination
of such Consolidated Net Income.



     “EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated
basis, determined in accordance with GAAP, the sum, without duplication, of (a) EBIT plus
(b) all amounts treated as expenses for depreciation or the amortization of intangibles of any kind
to the extent included in the determination of Consolidated Net Income; provided that in
the event of the occurrence of any Acquisition or Disposition during such period, EBITDA shall be
calculated on a pro forma basis as if such Acquisition or Disposition occurred on the first day of
the relevant period such that, in the case of an Acquisition, all income and expense associated
with the assets or entity acquired in connection with such Acquisition for the most recently ended
four fiscal quarter period for which such income and expense amounts are available shall be treated
as earned or incurred by the Company over the applicable period and, in the case of a Disposition,
all income and expense associated with the assets or entity sold or transferred during such period
shall be eliminated over the applicable period.



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; and (c) any
other Person (other than a natural person) approved by (i) the Administrative Agent, each L/C
Issuer and the Swing Line Lender, and (ii) unless an Event of Default under Section 8.01(f)
or 8.01(g) has occurred and is continuing, or an Event of Default under Section
8.01(a) has occurred and is continuing for 20 days or more, the Company (each such approval not
to be unreasonably withheld or delayed, and the Company shall be deemed to have consented to any
assignment to a Person requiring the consent of the Company unless the Company shall object thereto
by written notice to the Administrative Agent within five Business Days after having received
notice thereof); provided that, notwithstanding the foregoing, (x) any assignment to a
Person that is not a commercial bank shall not become effective without the consent of the Company
if, after giving effect thereto, such Person and its Affiliates would collectively hold more than
20% of the Total Outstandings, (y) “Eligible Assignee” shall not include (A) the Company, (B) any
of the Company’s Affiliates or Subsidiaries or (C) a Defaulting Lender, and (z) prior to
termination of the Commitments, an Eligible Assignee shall include only a Lender, an Affiliate of a
Lender or another Person, which, through its Lending Offices, is



Page 7









 




capable of lending the applicable Alternative Currencies to the Borrowers without the
imposition of any Taxes or additional Taxes, as the case may be. The Company’s withholding of
consent to an assignment, to the extent its consent is required above, shall not be deemed
unreasonable if the assignee is not a commercial bank, savings and loan association or savings bank
having a combined capital and surplus of $200,000,000.




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



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



     “Environmental Claims” means all claims, however asserted, by any Governmental
Authority or other Person alleging potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the environment.



     “Environmental Laws” means all federal, state or local laws, statutes, common law
duties, rules, regulations, ordinances and codes, together with all administrative orders, directed
duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, health, safety and land use matters.



     “ERISA” means the Employee Retirement Income Security Act of 1974, and all rules and
regulations promulgated thereunder.



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity was a “substantial employer” as defined in Section
4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination
under Section 4041 or 4041A of ERISA; (e) the institution by PBGC to terminate a Pension Plan or
Multiemployer Plan; (f) any event or condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; (g) the determination that any Pension Plan is
considered an at-risk plan or a Multiemployer Plan is considered a plan in endangered or critical
status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of
ERISA, as applicable; or (h) the imposition of any liability under Title IV of ERISA, other than
for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.



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



     “Eurocurrency Base Rate” has the meaning specified in the definition of “Eurocurrency
Rate”.



     “Eurocurrency Rate” means for any Interest Period with respect to a Eurocurrency Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 
	Eurocurrency Rate =

	 	Eurocurrency Base Rate	 
	 	 	 
	 	1.00 - Eurocurrency Reserve Percentage	 





Where,




          “Eurocurrency Base Rate” means, for such Interest Period:





     (a) the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of
such Interest Period, for deposits in the relevant currency (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period; or



Page 8









 






     (b) if such rate is not available at such time for any reason, then the “Eurocurrency
Base Rate” for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in the relevant currency for delivery
on the first day of such Interest Period in Same Day Funds in the approximate amount of the
Eurocurrency Rate Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London Branch (or
other Bank of America branch or Affiliate) to major banks in the London or other offshore
interbank market for such currency at their request at approximately 11:00 a.m. (London
time) two (2) Business Days prior to (or, in the case of Eurocurrency Rate Loans denominated
in Sterling, the same Business Day as) the commencement of such Interest Period; or




     (c) [Reserved]; or




     (d) additionally, the Eurocurrency Base Rate for the initial Interest Period with
respect to the initial Committed Borrowing in Dollars shall be the rate per annum determined
by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the
first day of such Interest Period in Same Day Funds in the approximate amount of the
Eurocurrency Rate Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s Grand Cayman
Banking Center, Grand Cayman, British West Indies, to major banks in the offshore interbank
market for Dollars on the first Business Day of such Interest Period; or




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




     “Eurocurrency Reserve Percentage” means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five decimal places)
in effect on such day, whether or not applicable to any Lender, under regulations issued
from time to time by the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as “Eurocurrency liabilities”). The Eurocurrency Rate for
each outstanding Eurocurrency Rate Loan shall be adjusted automatically as of the effective
date of any change in the Eurocurrency Reserve Percentage.



     “Eurocurrency Rate Loan” means a Committed Loan that bears interest at a rate based on
the Eurocurrency Rate (excluding part (e) of such definition). Eurocurrency Rate Loans may be
denominated in Dollars or in an Alternative Currency. All Committed Loans denominated in an
Alternative Currency and all Committed Loans made to a Foreign Obligor must be Eurocurrency Rate
Loans.



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



     “Exchange Act” means the Securities Exchange Act of 1934, and regulations promulgated
thereunder, in each case, as amended from time to time.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of any
Borrower hereunder, except as otherwise provided herein, (a) taxes imposed on or measured by its
net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes),
by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient
is organized or in which its principal office is located or, in the case of any Lender, in which
such Lender maintains a lending office, (b) any branch profits taxes imposed by the United States
or any similar tax imposed by any other jurisdiction in which such Borrower is located, (c) in the
case of a Lender (other than an assignee pursuant to a request by the Company under Section
11.13), any withholding tax that is imposed on amounts payable to such Lender at the time such
Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such
Lender’s failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment), to receive additional
amounts from such Borrower with respect to such withholding tax pursuant to Section 3.01(a)
and (d) any taxes imposed under FATCA. Notwithstanding anything to the contrary contained in this
definition, “Excluded Taxes” shall not include any withholding taxes imposed at any time on
payments made by or on behalf of a Foreign Obligor to any Lender hereunder or under any other Loan
Document, provided that such Lender shall have complied with Section 3.01(e).



Page 9









 





     “Existing Credit Agreement” has the meaning specified in the recitals hereto.



     “Existing Lenders” shall have the meaning assigned to such term in the preamble
hereto.



     “Existing Letters of Credit” has the meaning specified in Section 2.04(a)(i).



     “Exiting Lenders” shall mean each of the Existing Lenders which is not a Lender under
this Agreement.



     “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this
Agreement, and any current or future regulations or official interpretations thereof (or any
amended or successor version thereof that is substantially comparable and not materially more
onerous to comply with).



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



     “Fee Letters” means each of (a) Bank of America Fee Letter, (b) the letter agreement,
dated as of May 26, 2011, among the Company, JPMorgan Chase Bank, N.A. and J.P. Morgan Securities
LLC and (c) the letter agreement, dated as of May 26, 2011, between the Company, Wells Fargo Bank,
National Association and Wells Fargo Securities, LLC.



     “Fitch” means Fitch, Inc. or any successor thereto.



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



     “Foreign Lender” means any Lender that is not a U.S. person within the meaning of
Section 7701(a)(30) of the Code.



     “Foreign Obligor” means a Borrower that is incorporated under the laws of a
jurisdiction other than any State of the U.S., the District of Columbia or any territory,
commonwealth or possession of the U.S.



     “Foreign Subsidiary” means any Subsidiary of the Company that (a) is incorporated
under the laws of a jurisdiction other than any State of the U.S., the District of Columbia or any
territory, commonwealth or possession of the U.S. and (b) maintains the major portion of its assets
outside the U.S.



     “FRB” means the Board of Governors of the Federal Reserve System of the United States,
and any Governmental Authority succeeding to any of its principal functions.



     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to each L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations with respect to the Letters of Credit issued by such L/C Issuer, other than L/C
Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to
other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to
the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other
than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been
reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.



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



     “GAAP” means generally accepted accounting principles in the United States set forth
from time to time in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to the circumstances as of
(a) in the case of any computation pursuant to Section 7.15, the date of this Agreement and
(b) in all other cases, the applicable date.



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



Page 10









 




other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).




     “Granting Lender” has the meaning specified in Section 11.06(h).



     “Guaranty” means the guaranty made by the Company under Article X in favor of
the Administrative Agent and the Lenders.



     “Guaranty Obligation” has the meaning specified in the definition of “Contingent
Obligation.”



     “IDEX UK” has the meaning specified in the introductory paragraph hereto.



     “Indebtedness” of any Person means, without duplication, (a) all indebtedness for
borrowed money; (b) all obligations issued, undertaken or assumed as the deferred purchase price of
property or services (other than trade payables entered into in the ordinary course of business on
ordinary terms); (c) all non-contingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition of property, assets
or businesses; (e) all indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to property acquired by
the Person (even though the rights and remedies of the seller or bank under such agreement in the
event of default are limited to repossession or sale of such property); (f) all Capital Lease
Obligations and Off Balance Sheet Obligations including all Receivables Facility Attributed
Indebtedness; (g) all indebtedness referred to in subsections (a) through (f) above secured by (or
for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and contracts rights) owned by such
Person, even though such Person has not assumed or become liable for the payment of such
Indebtedness; and (h) all Guaranty Obligations in respect of indebtedness or obligations of others
of the kinds referred to in subsections (a) through (g) above. In the event any of the foregoing
Indebtedness is limited to recourse against a particular asset or assets of such Person, the amount
of the corresponding Indebtedness shall be equal to the lesser of the amount of such Indebtedness
and the fair market value of such asset or assets at the date for determination of the amount of
such Indebtedness. In addition, the amount of any Indebtedness which is also a Contingent
Obligation shall be determined as provided in the definition of “Contingent Obligation.”



     For all purposes of this Agreement, the Indebtedness of any Person shall include all
Indebtedness of any partnership or Joint Venture or limited liability company in which such Person
is a general partner or a joint venturer or a member, but in any such case, only to the extent any
such Indebtedness is recourse to such Person. The amount of any Capital Lease or Off Balance Sheet
Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.



     “Indemnification Side Letter” means a letter, in form and substance reasonably
satisfactory to the Administrative Agent, from the Company addressed to the Administrative Agent
indemnifying the Lenders in the manner set forth in Section 3.05 with respect to
Eurocurrency Rate Loans in Alternative Currencies to be made on the Closing Date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnified Person” has the meaning specified in Section 11.04(b).



     “Independent Auditor” has the meaning specified in Section 6.01(a).



     “Insolvency Proceeding” means, with respect to any Person, (a) any case, action or
proceeding with respect to such Person before any court or other Governmental Authority relating to
Debtor Relief Laws or (b) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors, undertaken under Debtor Relief Laws.



     “Intercompany Indebtedness” means Indebtedness of the Company or any of its
Subsidiaries which, in the case of the Company, is owing to any Subsidiary of the Company and
which, in the case of any Subsidiary, is owing to the Company or any of the Company’s other
Subsidiaries.



     “Interest Coverage Ratio” means, as of any date of determination, the ratio of EBITDA
for the period of the four prior fiscal quarters ending on or immediately prior to such date to
Consolidated Interest Expense for such period.



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



Page 11









 




Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the
last Business Day of each March, June, September and December and the Maturity Date.




     “Interest Period” means as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the
Company in its Committed Loan Notice, as the case may be, or nine or twelve months if requested by
the Company and consented to by all the Lenders; provided that:




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




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




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



     “Inventory” means, inclusively, all inventory as defined in the Uniform Commercial
Code in effect in the State of Illinois from time to time and all goods, merchandise and other
personal property wherever located, now owned or hereafter acquired by the Company or any of its
Subsidiaries of every kind or description which are held for sale or lease or are furnished or to
be furnished under a contract of service or are raw materials, work-in-process or materials used or
consumed or to be used or consumed in the Company’s or any of its Subsidiaries’ business.



     “Investments” has the meaning specified in Section 7.04.



     “IRS” means the United States Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.



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



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



     “Joint Venture” means a single-purpose corporation, partnership, limited liability
company, joint venture or other similar legal arrangement (whether created by contract or conducted
through a separate legal entity) now or hereafter formed by the Company or any of its Subsidiaries
with another Person in order to conduct a common venture or enterprise with such Person.



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



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



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



     “L/C Issuer” means each of Bank of America and Wells Fargo Bank, National Association,
each in its respective capacity as issuer of Letters of Credit hereunder, or any successor issuer
of Letters of Credit hereunder, but excluding any Lender that resigns or is removed as an L/C
Issuer pursuant to the terms hereof (except to the extent such Person has continuing rights and/or
obligations with respect to Letters of Credit after such resignation or removal). References to
the L/C Issuer herein shall, as the context may indicate (including with respect to any particular
Letter of Credit, L/C Credit Extension, L/C Borrowing or L/C Obligations), mean the applicable L/C
Issuer, each L/C Issuer, any L/C Issuer, or all L/C Issuers.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined



Page 12









 




in accordance with Section 1.09. For all purposes of this Agreement, if on any date
of determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.




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



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender; provided that solely for purposes of
funding a Committed Borrowing to a Designated Borrower each reference to a Lender shall be deemed
to include such Lender’s Applicable Designee. Notwithstanding the designation by any Lender of an
Applicable Designee, the Borrowers and the Administrative Agent shall be permitted to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement.



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



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



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



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



     “Letter of Credit Fee” has the meaning specified in Section 2.04(i).



     “Letter of Credit Sublimit” means an amount equal to the lesser of (a) $75,000,000 and
(b) the Aggregate Commitments. The Letter of Credit Sublimit is part of, and not in addition to,
the Aggregate Commitments.



     “Leverage Ratio” means, as of any date of determination, for the Company and its
Subsidiaries, the ratio of (a) Consolidated Debt as of such date to (b) EBITDA for the period of
the four fiscal quarters ending on or immediately prior to such date.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing), but, in any such case, not including the interest of a
lessor under an operating lease which does not constitute Off Balance Sheet Obligations or the
interest of a purchaser of Accounts Receivable under any Permitted Receivables Purchase Facility.



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



     “Loan Documents” means this Agreement, each Designated Borrower Request and Assumption
Agreement, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash
Collateral pursuant to the provisions of Section 2.19 of this Agreement, and each Fee
Letter.



     “Loan Parties” means, collectively, the Borrowers and, in its capacity as guarantor of
the Designated Borrower Obligations under Article X hereof, the Company.



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



Page 13









 





     “Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of
the FRB.



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



     “Material Subsidiary” means, at any time, any Subsidiary having at such time total
assets, as of the last day of the preceding fiscal quarter, having a net book value in excess of
10% of Consolidated Total Assets, based upon the Company’s most recent annual or quarterly
financial statements delivered to the Administrative Agent under Section 6.01.



     “Maturity Date” means June 27, 2016, provided that, if such date is not a Business
Day, the Maturity Date shall be the next preceding Business Day, subject to extension (in the case
of each Lender consenting thereto) as provided in Section 2.16.



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



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



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



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



     “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.



     “Off Balance Sheet Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment), or (c) Attributable
Indebtedness and other obligations in respect of a Permitted Receivables Purchase Facility. The
interest component of Off Balance Sheet Obligations shall mean in the case of a lease, those
monetary obligations which would, in accordance with GAAP, be treated as interest if such lease was
a Capital Lease, and in all other cases shall be the amount which would be characterized as
interest upon the insolvency or bankruptcy of such Person (assuming, for purposes of any Permitted
Receivables Purchase Facility, that such sale does not constitute a true sale).



     “Organization Documents” means, (a) for any corporation, the certificate or articles
of incorporation, the bylaws, any certificate of determination or instrument relating to the rights
of preferred shareholders of such corporation, any shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee thereof) of such corporation (or the
equivalents thereof in the case of a Designated Borrower); (b) with respect to any limited
liability company, the certificate or articles of formation or organization and operating agreement
(or the equivalents thereof in the case of a Designated Borrower); and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the partnership, joint venture
or other applicable agreement of formation or organization and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity (or the
equivalents thereof in the case of a Designated Borrower).



     “Other Taxes” means any present or future stamp, court or documentary taxes,
intangible, recording, filing or any other excise or property taxes, charges or similar levies
which arise from any payment made under, or from the execution, delivery, performance, enforcement
or registration of, or from the receipt or perfection of a security interest under, or otherwise
with respect to, this Agreement or any other Loan Documents.



     “Outstanding Amount” means (i) with respect to Committed Loans on any date, the Dollar
Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such



Page 14









 




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




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



     “Participant” has the meaning specified in Section 11.06(d).



     “Participant Register” has the meaning specified in Section 11.06(d).



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



     “Participating Subsidiary” means any Subsidiary of the Company that is a participant
in any Permitted Receivables Purchase Facility.



     “PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental Authority
succeeding to any of its principal functions under ERISA.



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



     “Permitted Acquisition” means any Acquisition by the Company or a Subsidiary of the
Company if all of the following conditions are met:




     (a) no Default or Event of Default has occurred and is continuing or would result
therefrom; and




     (b) the prior, effective written consent or approval of such Acquisition by the board
of directors or equivalent governing body of the acquiree is obtained.



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



     “Permitted Receivables Purchase Facility” means any receivables financing program
providing for the sale or contribution of Accounts Receivable by the Company and its Participating
Subsidiaries directly or indirectly to the Receivables Subsidiary in transactions purporting to be
sales (and treated as sales for GAAP purposes), which Receivables Subsidiary shall finance the
purchase of such Accounts Receivable by the sale, transfer, conveyance, lien or pledge of such
Accounts Receivable to one or more limited purpose financing companies, special purpose entities
and/or other financial institutions, in each case, on a basis that does not provide, directly or
indirectly, for recourse against the seller of such Accounts Receivable (or against any of such
seller’s Affiliates other than the Receivables Subsidiary) by way of a guaranty or any other
support arrangement, with respect to the amount of such Accounts Receivable (based on the financial
condition or circumstances of the obligor thereunder), other than such limited recourse as is
reasonable given market standards for transactions of a similar type, taking into account such
factors as historical bad debt loss experience and obligor concentration levels; provided that any
such transaction described in the foregoing clause shall be consummated pursuant to documentation
in form and substance reasonably satisfactory to Agent, as evidenced by its written approval
thereof.



     “Permitted Swap Obligations” means all obligations (contingent or otherwise) of the
Company or any Subsidiary existing or arising under Swap Contracts; provided that each of
the following criteria is satisfied: (a) such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly mitigating risks associated
with liabilities, commitments or assets held or reasonably anticipated by such Person, or changes
in the value of securities issued by



Page 15









 




such Person in conjunction with a securities repurchase program not otherwise prohibited
hereunder, and not for purposes of speculation or taking a “market view;” and (b) such Swap
Contracts do not contain any provision (“walk-away” provision) exonerating the non-defaulting party
from its obligation to make payments on outstanding transactions to the defaulting party.




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



     “Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which the
Company or an ERISA Affiliate sponsors or maintains or to which the Company or an ERISA Affiliate
makes, is making, or is obligated to make contributions and includes any Pension Plan.



     “Rating Agency” shall mean Moody’s, S& P’s or Fitch, as applicable.



     “Receivables Facility Attributed Indebtedness” at any time shall mean the aggregate
net outstanding amount theretofore paid to the Receivables Subsidiary in respect of the Accounts
Receivable sold or transferred by it in connection with a Permitted Receivables Purchase Facility
(it being the intent of the parties that the amount of Receivables Facility Attributed Indebtedness
at any time outstanding approximate as closely as possible the principal amount of Indebtedness
which would be outstanding at such time under such Permitted Receivables Purchase Facility if the
same were structured as a secured lending agreement rather than a purchase agreement).



     “Receivables Subsidiary” means IDEX Receivables Corporation and any other special
purpose, bankruptcy remote Wholly-Owned Subsidiary of the Company which may be formed for the sole
and exclusive purpose of engaging in activities in connection with the purchase, sale and financing
of Accounts Receivable in connection with and pursuant to a Permitted Receivables Purchase
Facility.



     “Refinancing Indebtedness” means Indebtedness incurred to refinance other Indebtedness
as long as such refinancing does not (i) result in an increase in the total principal amount
thereof by an amount in excess of accrued interest, call premiums and expenses incurred in
connection with such refinancing or (ii) create Indebtedness with a weighted average life to
maturity that is less than the weighted average life to maturity of the Indebtedness being
refinanced or shorten the final maturity of the Indebtedness being refinanced, provided that if
such Indebtedness being refinanced is Indebtedness of the Company, then such Refinancing
Indebtedness shall be Indebtedness solely of the Company.



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



     “Reportable Event” means, any of the events set forth in Section 4043(c) of ERISA or
the regulations thereunder, other than any such event for which the 30-day notice requirement under
ERISA has been waived in regulations issued by the PBGC.



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



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



     “Requirement of Law” means, as to any Person, any law (statutory or common), treaty,
rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case
applicable to or binding upon the Person or any of its property or to which the Person or any of
its property is subject.



     “Responsible Officer” means the chief executive officer, the chief operating officer,
the president, the chief financial officer, the controller or the treasurer of the Company or the
applicable Designated Borrower, as applicable, or any other officer having substantially the same
authority and responsibility, including any management board member in the case of any Designated
Borrower organized under the laws of the Netherlands.



     “Restricted Payment” has the meaning specified in Section 7.08.



Page 16









 





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



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



     “Sale and Leaseback Transaction” means any arrangement, directly or indirectly,
whereby a seller or transferor shall sell or otherwise transfer any real or personal property and
then or thereafter lease, or repurchase under an extended purchase contract, conditional sales or
other title retention agreement, the same or similar property.



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



     “Sanctioned Country” shall mean a country that is subject to a sanctions program
identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/programs, or as otherwise published from time
to time.



     “Sanctioned Person” shall mean (a) a person named on the list of “Specially Designated
Nationals” or “Blocked Persons” maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/sdn/index.html, or as otherwise published from time to time or (b)(i)
an agency of the government of a Sanctioned Country; (ii) an organization directly or indirectly
controlled by a Sanctioned Country; or (iii) a person resident in a Sanctioned Country, in each
case to the extent subject to a sanctions program administered by OFAC.



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



     “Second Anniversary Date” has the meaning specified in Section 2.16(a).



     “SPC” has the meaning specified in Section 11.06(h).



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



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



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



     “Subordinated Debt” shall mean all unsecured Indebtedness of a Borrower for money
borrowed which is subordinated in form and substance to the Obligations, and which has terms of
payment, covenants and remedies, all satisfactory to the Required Lenders as evidenced by their
written approval thereof.



     “Subsidiary” of a Person means any corporation, association, partnership, limited
liability company, joint venture or other business entity of which more than 50% of the securities,
membership interests or other equity interests having ordinary voting power for the election of
directors or other governing body are at the time beneficially owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or a combination
thereof. Unless the context otherwise



Page 17









 




clearly requires, references herein to a “Subsidiary” refer to a Subsidiary of the Company and
shall include each Borrower other than the Company.




     “Surety Instruments” means all letters of credit (including standby and commercial),
banker’s acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.



     “Swap Contract” means any agreement, whether or not in writing, relating to any
transaction that is a rate swap, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap or option, bond, note or bill option, interest rate option,
forward foreign exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar transaction (including
any option to enter into any of the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or governing any or all of the
foregoing.



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



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



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



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



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



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



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



     “Swiss Franc” means the lawful currency of Switzerland.



     “TARGET2” means the Trans-European Automated Real-time Gross Settlement Express
Transfer payment system which utilizes a single shared platform and which was launched on November
19, 2007.



     “TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be
operative, such other payment system, if any, determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other similar charges imposed by
any Governmental Authority, including any interest, additions to tax or penalties applicable
thereto not attributable to the gross negligence or willful misconduct of the Lender or
Administrative Agent, as applicable.



     “Term Loan Credit Agreement” means that certain Credit Agreement dated as of April 18,
2008 by and among the Company, each lender from time to time party thereto and Bank of America,
N.A., as administrative agent (as amended, restated, supplemented or otherwise modified).



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



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



Page 18









 





     “Unfunded Pension Liability” means the excess of a Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 430 of the
Code for the applicable plan year.



     “United States” and “U.S.” each means the United States of America.



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



     “Wholly-Owned Subsidiary” means any corporation in which (other than directors’
qualifying shares required by law) 100% of the capital stock of each class having ordinary voting
power, and 100% of the capital stock of every other class, in each case, at the time as of which
any determination is being made, is owned, beneficially and of record, by the Company, or by one or
more of the other Wholly-Owned Subsidiaries, or both.



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



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



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



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



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



     4. In this Agreement, where it relates to a Dutch entity, or Dutch security, a
reference to: (i) a necessary action to authorize where applicable, includes without limitation:
(A) any action required to comply with the Works Councils Act of the Netherlands (Wet op de
ondernemingsraden); and (B) obtaining an unconditional positive advice (advies) from the competent
works council(s) if a positive advice is required pursuant to the Dutch Works Councils Act (Wet op
de ondernemingsraden); (ii) gross negligence means grove schuld; (iii) a security interest includes
any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud),
privilege (voorrecht), right of retention (recht van retentie), right to reclaim goods (recht van
reclame), and, in general, any right in rem (beperkt recht), created for the purpose of granting
security (goederenrechtelijk zekerheidsrecht); (iv) willful misconduct means opzet; (v) a
moratorium includes surseance van betaling and a moratorium is declared or occurs includes
surseance verleend; (vi) any step or procedure taken in connection with insolvency proceedings
includes a Dutch entity having filed a notice under Section 36 of the Dutch Tax Collection Act
(Invorderingswet 1990); (vii) a receiver includes a curator; (viii) an administrator includes a
bewindvoerder; (ix) an attachment includes a beslag; and (x) a merger includes a juridische
fusie.



Page 19









 





     C. Accounting Terms.



     1. Generally. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to this Agreement shall
be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time,
applied in a manner consistent with that used in preparing the Company’s audited financial
statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for
purposes of determining compliance with any covenant (including the computation of any financial
covenant) contained herein, Indebtedness of the Company and its Subsidiaries shall be deemed to be
carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on
financial liabilities shall be disregarded.



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



     D. Exchange Rates; Currency Equivalents.



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



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



     E. Additional Alternative Currencies.



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



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



Page 20









 




Issuer (in the case of a request pertaining to Letters of Credit) shall notify the
Administrative Agent, not later than 11:00 a.m., ten Business Days after receipt of such request
whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or the
issuance of Letters of Credit, as the case may be, in such requested currency.




     3. Any failure by a Lender or the applicable L/C Issuer, as the case may be, to
respond to such request within the time period specified in the preceding sentence shall be deemed
to be a refusal by such Lender or such L/C Issuer, as the case may be, to permit Eurocurrency Rate
Loans to be made or Letters of Credit to be issued in such requested currency. If the
Administrative Agent and all the Lenders consent to making Eurocurrency Rate Loans in such
requested currency, the Administrative Agent shall so notify the Company and such currency shall
thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any
Committed Borrowings of Eurocurrency Rate Loans; and if the Administrative Agent and any L/C Issuer
consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent
shall so notify the Company and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Letter of Credit issuances to be issued by each
such approving L/C Issuer. If the Administrative Agent shall fail to obtain consent to any request
for an additional currency under this Section 1.05, the Administrative Agent shall promptly
so notify the Company.



     F. Change of Currency.



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



     2. Each provision of this Agreement shall be subject to such reasonable changes
of construction as the Administrative Agent, with the consent of the Borrowers (which consent shall
not be unreasonably withheld), may from time to time specify to be appropriate to reflect the
adoption of the Euro by any member state of the European Union and any relevant market conventions
or practices relating to the Euro.



     3. Each provision of this Agreement also shall be subject to such reasonable
changes of construction as the Administrative Agent, with the consent of the Borrowers (which
consent shall not be unreasonably withheld), may from time to time specify to be appropriate to
reflect a change in currency of any other country and any relevant market conventions or practices
relating to the change in currency.



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



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



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




Page 21











 





II.

THE CREDITS




     A. Committed Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrowers
in Dollars or in one or more Alternative Currencies from time to time, on any Business Day during
the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of
such Lender’s Commitment; provided, however, that after giving effect to any
Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, (ii)
the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Commitment, (iii) the aggregate Outstanding Amount of all Committed Loans denominated in
Alternative Currencies plus the aggregate Outstanding Amount of all L/C Obligations
denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit, and (iv)
the aggregate Outstanding Amount of all Committed Loans made to the Designated Borrowers shall not
exceed the Designated Borrower Sublimit. Within the limits of each Lender’s Commitment, and
subject to the other terms and conditions hereof, the Borrowers may borrow under this Section
2.01, prepay under Section 2.06, and reborrow under this Section 2.01.
Committed Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.



     B. Borrowings, Conversions and Continuations of Committed Loans.



     1. Each Committed Borrowing, each conversion of Committed Loans from one Type to
the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Company’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars
to Base Rate Committed Loans, (ii) four Business Days (or five Business Days in the case of a
Special Notice Currency) prior to the requested date of any Borrowing or continuation of
Eurocurrency Rate Loans denominated in Alternative Currencies (including any Committed Borrowing in
an Alternative Currency to be made on the Closing Date, it being understood that no Committed
Borrowing in an Alternative Currency shall be available on the Closing Date unless the Company has
delivered the Indemnification Side Letter to the Administrative Agent on or prior to such date of
notice of such Committed Borrowing), (iii) on the requested date of any Borrowing of Base Rate
Committed Loans, and (iv) on the Closing Date with respect to the initial Borrowing of Committed
Loans in Dollars to the extent the interest rate on such Committed Loans is determined with
reference to clause (d) of the definition of Eurocurrency Base Rate for a one month Interest
Period; provided, however, that if the Company wishes to request Eurocurrency Rate
Loans having an Interest Period other than one, two, three or six months in duration as provided in
the definition of “Interest Period,” the applicable notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) four Business Days prior to the requested date of such
Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii)
five Business Days (or six Business Days in the case of a Special Notice Currency) prior to the
requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated
in Alternative Currencies, whereupon the Administrative Agent shall give prompt notice to the
Lenders of such request and determine whether the requested Interest Period is acceptable to all of
them. Not later than 11:00 a.m., (i) three Business Days before the requested date of such
Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii)
four Business Days (or five Business Days in the case of a Special Notice Currency) prior to the
requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated
in Alternative Currencies, the Administrative Agent shall notify the Company (which notice may be
by telephone) whether or not the requested Interest Period has been consented to by all the
Lenders. Each telephonic notice by the Company pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Company. Each Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Sections
2.04(c) and 2.05(c), each Borrowing of or conversion to Base Rate Committed Loans shall
be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Each
Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Company is
requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a
continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of
Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be
borrowed or to which existing Committed Loans are to be converted, (v) if applicable, the duration
of the Interest 



Page 22









 




Period with respect thereto, (vi) the currency of the Committed Loans to be borrowed, and
(vii) if applicable, the applicable Designated Borrower. If the Company fails to specify a
currency in a Committed Loan Notice requesting a Borrowing, then the Committed Loans so requested
shall be made in Dollars. If the Company fails to specify a particular Borrower in a Committed
Loan Notice requesting a Borrowing, then the Committed Loans so requested shall be made to the
Company. If the Company fails to specify a Type of Committed Loan in a Committed Loan Notice or if
the Company fails to give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to, Base Rate Loans; provided,
however, that in the case of a failure to timely request a continuation of Committed Loans
denominated in an Alternative Currency, such Loans shall be continued as Eurocurrency Rate Loans in
their original currency with an Interest Period of one month. Any such automatic conversion to
Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurocurrency Rate Loans. If the Company requests a Borrowing of,
conversion to, or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one
month. No Committed Loan may be converted into or continued as a Committed Loan denominated in a
different currency, but instead must be prepaid in the original currency of such Committed Loan and
reborrowed in the other currency. 




     2. Following receipt of a Committed Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount (and currency) of its Applicable Percentage of the
applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by
the Company, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans or continuation of Committed Loans denominated in a currency other
than Dollars, in each case as described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative
Agent in Same Day Funds at the Administrative Agent’s Office for the applicable currency not later
than 12:00 noon, in the case of any Committed Loan denominated in Dollars, and not later than the
Applicable Time specified by the Administrative Agent in the case of any Committed Loan in an
Alternative Currency, in each case on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the Company or other applicable Borrower in like
funds as received by the Administrative Agent either by (i) crediting the account of such Borrower
on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds,
in each case in accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Company; provided, however, that if, on the date the
Committed Loan Notice with respect to such Borrowing denominated in Dollars is given by the
Company, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first,
shall be applied to the payment in full of any such L/C Borrowings, and second, shall be
made available to the applicable Borrower as provided above.



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



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



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



     C. [Reserved].



Page 23









 





     D. Letters of Credit.



     1. The Letter of Credit Commitment.




     Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees,
in reliance upon the agreements of the Lenders set forth in this Section 2.04, (1)
from time to time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in
one or more Alternative Currencies applicable to such L/C Issuer for the account of the
Company or its Subsidiaries, and to amend or extend Letters of Credit previously issued by
it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of
Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for
the account of the Company or its Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any Letter of Credit,
(w) the Total Outstandings shall not exceed the Aggregate Commitments, (x) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Commitment, (y) the aggregate Outstanding Amount of all Committed Loans
denominated in Alternative Currencies plus the aggregate Outstanding Amount of all
L/C Obligations denominated in Alternative Currencies shall not exceed the Alternative
Currency Sublimit and (z) the Outstanding Amount of the L/C Obligations shall not exceed the
Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit
Extension so requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Company may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
Each of the letters of credit outstanding on the date hereof and listed on Schedule
2.04 (the “Existing Letters of Credit”) shall be deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.




     No L/C Issuer shall issue any Letter of Credit, if the expiry date of such
requested Letter of Credit would occur after the date that is seven days prior to the
Maturity Date, unless all the Lenders have approved such expiry date.




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




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




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




     (3) except as otherwise agreed by the Administrative Agent and
such L/C Issuer, such Letter of Credit is in an initial stated amount less than
$100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of
a standby Letter of Credit;




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



Page 24









 






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




     (6) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder; or




     (7) any Lender is at that time a Defaulting Lender, unless such
L/C Issuer has entered into arrangements, including the delivery of Cash Collateral,
satisfactory to such L/C Issuer (in its sole discretion) with the Company or such
Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after
giving effect to Section 2.20(a)(iv)) with respect to the Defaulting Lender
arising from either the Letter of Credit then proposed to be issued or that Letter
of Credit and all other L/C Obligations as to which such L/C Issuer has actual or
potential Fronting Exposure, as it may elect in its sole discretion.




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




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




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



     2. Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension
Letters of Credit.




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



Page 25









 






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




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




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



     3. Drawings and Reimbursements; Funding of Participations.




     Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Company and
the Administrative Agent thereof. In the case of a Letter of Credit denominated in an
Alternative Currency, the Company shall reimburse the applicable L/C Issuer in such
Alternative Currency, unless (A) such L/C Issuer (at its option) shall have specified in
such notice that it will require reimbursement in Dollars, or (B) in the absence of any such
requirement for reimbursement in Dollars, the Company shall have notified the applicable L/C
Issuer promptly following receipt of the notice of drawing that the Company will reimburse
the applicable L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a
drawing under a Letter of Credit denominated in an Alternative Currency, the applicable L/C
Issuer shall notify the Company of the Dollar Equivalent of the amount of the drawing
promptly following the determination thereof. Not later than 11:00 a.m. on the date of any
payment by the applicable L/C Issuer under a Letter of Credit to be reimbursed in Dollars,
or the Applicable Time on the date of any payment by the applicable L/C Issuer under a
Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor
Date”), the Company shall reimburse such L/C Issuer through the Administrative Agent in
an amount equal to the amount of such drawing and in the applicable currency. If the
Company fails to so reimburse the applicable L/C Issuer by such time, such L/C Issuer shall
promptly notify the Administrative Agent of the Honor Date and the amount of the
unreimbursed drawing (expressed in Dollars in the amount of 



Page 26









 







the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (the “Unreimbursed Amount”), and the Administrative Agent
shall promptly notify each Lender of the amount of such Lender’s Applicable Percentage
thereof. In such event, the Company shall be deemed to have requested a Committed Borrowing
of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion
of the Aggregate Commitments and the conditions set forth in Section 4.02 (other
than the delivery of a Committed Loan Notice). Any notice given by any L/C Issuer or the
Administrative Agent pursuant to this Section 2.04(c)(i) may be given by telephone
if immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.




     Each Lender shall upon any notice pursuant to Section 2.04(c)(i) make funds
available (and the Administrative Agent may apply Cash Collateral provided for this purpose)
for the account of the applicable L/C Issuer, in Dollars, at the Administrative Agent’s
Office for Dollar-denominated payments in an amount equal to its Applicable Percentage of
the Unreimbursed Amount not later than 12:00 noon on the Business Day specified in such
notice by the Administrative Agent, whereupon, subject to the provisions of Section
2.04(c)(iii), each Lender that so makes funds available shall be deemed to have made a
Base Rate Committed Loan to the Company in such amount. The Administrative Agent shall
remit the funds so received to the applicable L/C Issuer in Dollars.




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




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




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




     If any Lender fails to make available to the Administrative Agent for the account
of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(ii), then, without limiting the other provisions of this Agreement, the
applicable L/C Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the period from the
date such payment is required to the date on which such payment is immediately available to
such L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time
in effect, plus any administrative, processing or similar fees customarily charged by such
L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid (net of such interest and fees) shall constitute
such Lender’s Committed Loan included in the relevant Committed Borrowing or L/C Advance in
respect of the relevant L/C Borrowing, as the case may be. A certificate of the applicable
L/C Issuer submitted to any Lender 



Page 27









 







(through the Administrative Agent) with respect to any amounts owing under this
subsection (vi) shall be conclusive absent manifest error.



     4. Repayment of Participations.




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




     If any payment received by the Administrative Agent for the account of the
applicable L/C Issuer pursuant to Section 2.04(c)(i) is required to be returned
under any of the circumstances described in Section 11.05 (including pursuant to any
settlement entered into by such L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of such L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. The obligations of the Lenders under
this subsection shall survive the payment in full of the Obligations and the termination of
this Agreement.



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




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




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




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




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




     any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Company or in the relevant currency markets generally;
or




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



Page 28









 





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



     6. Role of L/C Issuer. Each Lender and the Company agree that, in paying
any drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuers, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Company hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Company’s pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of any L/C Issuer shall be liable or responsible for any of the matters described in
Section 2.04(e)(i) through (vi); provided, however, that anything
in such clauses to the contrary notwithstanding, the Company may have a claim against the
applicable L/C Issuer, and the applicable L/C Issuer may be liable to the Company, to the extent,
but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered
by the Company which the Company proves were caused by the applicable L/C Issuer’s willful
misconduct or gross negligence or the applicable L/C Issuer’s willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, each L/C Issuer may accept documents that
appear on their face to be in order, without responsibility for further investigation, regardless
of any notice or information to the contrary, and no L/C Issuer shall be responsible for the
validity or sufficiency of any instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason.



     7. [Reserved].



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



     9. Letter of Credit Fees. The Company shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable Percentage a Letter of
Credit fee (the “Letter of Credit Fee”) (i) for each commercial Letter of Credit equal to
50% times the Applicable Rate times the Dollar Equivalent of the daily amount
available to be drawn under such Letter of Credit, and (ii) for each standby Letter of Credit equal
to the Applicable Rate times the Dollar Equivalent of the daily amount available to be
drawn under such Letter of Credit; provided that any Letter of Credit Fees otherwise
payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which
such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable L/C Issuer
pursuant to this Section 2.04 shall be payable, to the maximum extent permitted by
applicable Law, to the other Lenders in accordance with the upward adjustments in their respective
Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.20(a)(iv),
with the balance of such fee, if any, payable to the applicable L/C Issuer for its own account.
For purposes of computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.09.
Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and
payable on the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate or 50% of such Applicable Rate, as
the case may be, separately for each period during such quarter that such Applicable Rate was in
effect. 



Page 29









 





     10. Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuers. The Company shall pay directly to the applicable L/C Issuer for its own account, in
Dollars, a fronting fee (i) with respect to each commercial Letter of Credit, at the rate specified
in the Bank of America Fee Letter (with respect to Letters of Credit issued by Bank of America) or
at the rate separately agreed from time to time between the Company and any other L/C Issuer,
computed on the Dollar Equivalent of the amount of such Letter of Credit, and payable upon the
issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing
the amount of such Letter of Credit, at a rate separately agreed between the Company and the
applicable L/C Issuer, computed on the Dollar Equivalent of the amount of such increase, and
payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of
Credit, at the rate per annum specified in the Bank of America Fee Letter (with respect to Letters
of Credit issued by Bank of America) or at the rate separately agreed from time to time between the
Company and any other L/C Issuer, computed on the Dollar Equivalent of the daily amount available
to be drawn under such Letter of Credit on a quarterly basis in arrears, and due and payable on the
first Business Day after the end of each March, June, September and December, commencing with the
first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. For purposes of computing the daily amount available to
be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.09. In addition, the Company shall pay directly to the
applicable L/C Issuer for its own account, in Dollars, the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of such L/C Issuer
relating to letters of credit as from time to time in effect. Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.



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



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



     13. Reporting of Letter of Credit Information. At any time any Person is
an L/C Issuer and is not the Administrative Agent or an Affiliate thereof, then (i) on the last
Business Day of each calendar month, (ii) on each date that a Letter of Credit is amended,
terminated or otherwise expires, (iii) on each date that an L/C Credit Extension occurs with
respect to any Letter of Credit, and (iv) upon the request of the Administrative Agent, each L/C
Issuer (or, in the case of part (ii), (iii) or (iv), the applicable L/C Issuer) shall deliver to
the Administrative Agent a report setting forth in form and detail reasonably satisfactory to the
Administrative Agent information (including, without limitation, any reimbursement, Cash
Collateral, or termination in respect of Letters of Credit issued by such L/C Issuer) with respect
to each Letter of Credit issued by such L/C Issuer that is outstanding hereunder. No failure on
the part of any L/C Issuer to provide such information pursuant to this Section 2.04(m)
shall limit the obligation of the Company or any Lender hereunder with respect to its reimbursement
and participation obligations, respectively, pursuant to this Section 2.04.



     E. Swing Line Loans.



     1. The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in
this Section 2.05, to make loans (each such loan, a “Swing Line Loan”) to the
Company from time to time on any Business Day during the Availability Period in an aggregate amount
not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the
fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding
Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed
the amount of such Lender’s Commitment; provided, however, that after giving effect
to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and
(ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Commitment, and provided, further, that the Company shall not use the
proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing
limits, and subject to the other terms and conditions hereof, the Company may borrow under this
Section 2.05, prepay under Section 2.06, and reborrow under this Section
2.05. 



Page 30









 




Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing
Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal
to the product of such Lender’s Applicable Percentage times the amount of such Swing Line
Loan. Notwithstanding the foregoing, the Swing Line Lender shall not be required to make a Swing
Line Loan at any time that any Lender is a Defaulting Lender, unless the Swing Line Lender has
entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Swing
Line Lender (in its sole discretion) with the Company or such Lender to eliminate the Swing Line
Lender’s actual or potential Fronting Exposure (after giving effect to Section 2.20(a)(iv))
with respect to the Defaulting Lender arising from either the Swing Line Loan then proposed to be
issued or that Swing Line Loan and all other Swing Line Loans as to which the Swing Line Lender has
actual or potential Fronting Exposure, as it may elect in its sole discretion.




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



     3. Refinancing of Swing Line Loans.




     The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Committed Loan in an amount equal
to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Company with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Lender shall make an amount equal
to its Applicable Percentage of the amount specified in such Committed Loan Notice available
to the Administrative Agent in Same Day Funds (and the Administrative Agent may apply Cash
Collateral available with respect to the applicable Swing Line Loan) for the account of the
Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not
later than 12:00 noon on the day specified in such Committed Loan Notice, whereupon, subject
to Section 2.05(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Committed Loan to the Company in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.




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



Page 31









 






     If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.05(c) by the time specified in Section
2.05(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, plus any administrative, processing or similar
fees customarily charged by the Swing Line Lender in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the amount so paid (net of
such interest and fees) shall constitute such Lender’s Committed Loan included in the
relevant Committed Borrowing or funded participation in the relevant Swing Line Loan, as the
case may be. A certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this subsection (iii) shall be
conclusive absent manifest error.




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



     4. Repayment of Participations.




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




     If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 11.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative
Agent will make such demand upon the request of the Swing Line Lender. The obligations of
the Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



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



     6. Payments Directly to Swing Line Lender. The Company shall make all
payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line
Lender.



     F. Prepayments.



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



Page 32









 




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




     2. [Reserved].



     3. The Company may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in
whole or in part without premium or penalty; provided that (i) such notice must be received
by the Swing Line Lender and the Administrative Agent not later than 12:00 noon on the date of the
prepayment, and (ii) any such prepayment shall be (A) in a minimum principal amount of $1,000,000
or a whole multiple of $1,000,000 in excess thereof or (B) for the entire amount thereof
outstanding. Each such notice shall specify the date and amount of such prepayment. If such
notice is given by the Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.



     4. If the Administrative Agent notifies the Company at any time that the Total
Outstandings at such time exceed an amount equal to 105% of the Aggregate Commitments then in
effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay
Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount
sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed
100% of the Aggregate Commitments then in effect; provided, however, that, subject
to the provisions of Section 2.19(a)(ii), the Company shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.06(d) unless after the
prepayment in full of the Loans, the Total Outstandings exceed the Aggregate Commitments then in
effect. The Administrative Agent may, at any time and from time to time after the initial deposit
of such Cash Collateral, request that additional Cash Collateral be provided in order to protect
against the results of further exchange rate fluctuations.



     5. If the Administrative Agent notifies the Company at any time that the
Outstanding Amount of all Loans denominated in Alternative Currencies plus the Outstanding
Amount of all L/C Obligations denominated in Alternative Currencies at such time exceeds an amount
equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days
after receipt of such notice, the Borrowers shall prepay Loans in an aggregate amount sufficient to
reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the
Alternative Currency Sublimit then in effect.



     6. If the Administrative Agent notifies the Company at any time that the
Outstanding Amount of all Loans made to the Designated Borrowers at such time exceeds an amount
equal to 105% of the Designated Borrower Sublimit then in effect, then, within two Business Days
after receipt of such notice, one or more Designated Borrowers shall prepay Loans in an aggregate
amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to
exceed 100% of the Designated Borrower Sublimit then in effect.



     G. Termination or Reduction of Commitments. The Company may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. three Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or reduce the
Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to
any reduction of the Aggregate Commitments, the Alternative Currency Sublimit, the Letter of Credit
Sublimit, the Swing Line Sublimit or the Designated Borrower Sublimit exceeds the amount of the
Aggregate Commitments, the applicable Sublimit shall be automatically reduced by the amount of such
excess. The Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. The amount of any 



Page 33









 




such Aggregate Commitment reduction shall not be applied to the Alternative Currency
Sublimit, the Letter of Credit Sublimit or the Designated Borrower Sublimit unless otherwise
specified by the Company. The Company may from time to time, upon not less than three Business
Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed
by the Administrative Agent in its sole discretion), reduce the Designated Borrower Sublimit by
$50,000,000 or any whole multiple thereof, without any corresponding reduction in the Aggregate
Commitments; provided that such reduction shall only be permitted if, after giving effect
thereto, the outstanding Loans payable by the Designated Borrowers do not exceed the Designated
Borrower Sublimit as so reduced. Any reduction of the Aggregate Commitments shall be applied to
the Commitment of each Lender according to its Applicable Percentage. All fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on the effective date
of such termination.




     H. Repayment of Loans.



     1. Each Borrower shall repay to the Lenders on the Maturity Date applicable to
each such Lender the aggregate principal amount of Committed Loans made to such Borrower and
outstanding on such date.



     2. Reserved.



     3. The Company shall repay each Swing Line Loan on the earlier to occur of (i)
the date ten Business Days after such Loan is made and (ii) the Maturity Date.



     I. Interest.



     1. Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate
Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a
rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable
Rate plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent from a
Lending Office in the United Kingdom or a Participating Member State) the Mandatory Cost; (ii) each
Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to, at the Company’s option,
(x) the Base Rate plus the Applicable Rate or (y) such other rate mutually agreed to by the
Company and the Swing Line Lender at the time of the borrowing of such Swing Line Loan.



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




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




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



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



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



     1. Facility Fee. The Company shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage, a facility fee in Dollars
equal to the Applicable Rate times the actual daily amount of the Aggregate Commitments
(or, if the Aggregate Commitments have 



Page 34









 




terminated, on the Outstanding Amount of all Committed Loans, Swing Line Loans and L/C
Obligations), regardless of usage, subject to adjustment as provided in Section 2.20. The
facility fee shall accrue at all times during the Availability Period (and thereafter so long as
any Committed Loans, Swing Line Loans or L/C Obligations remain outstanding), including at any time
during which one or more of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the last day of the
Availability Period (and, if applicable, thereafter on demand). The facility fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable Rate during any
quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately
for each period during such quarter that such Applicable Rate was in effect.




     2. Other Fees. The Company shall pay to the Arrangers and the
Administrative Agent, in Dollars, fees in the amounts and at the times specified in the respective
Fee Letters, which fees shall be for the respective accounts of the Administrative Agent, Arrangers
and the Lenders as specified in the respective Fee Letters. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.



     K. Computation of Interest and Fees. All computations of interest for Base Rate
Loans (including Base Rate Loans determined by reference to the Eurocurrency Rate) shall be made
on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more fees or interest, as applicable, being paid than if computed on the
basis of a 365-day year), or, in the case of interest in respect of Committed Loans denominated in
Alternative Currencies as to which market practice differs from the foregoing, in accordance with
such market practice. Interest shall accrue on each Loan for the day on which the Loan is made,
and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day on which it is made shall,
subject to Section 2.13(a), bear interest for one day. Each determination by the Administrative
Agent (or, if applicable, the Swing Line Lender or applicable L/C Issuer) of an interest rate or
fee hereunder shall be conclusive and binding for all purposes, absent manifest error.



     L. Evidence of Debt.



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



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



     M. Payments Generally; Administrative Agent’s Clawback.



     1. General. All payments to be made by any Borrower shall be made
without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein and except with respect to principal of and interest on Loans
denominated in an Alternative Currency, all payments by the Borrowers hereunder shall be made to
the Administrative Agent, for the account of the respective Lenders to which such payment is owed,
at the applicable Administrative Agent’s Office in Dollars 



Page 35









 




and in Same Day Funds not later than 1:00 p.m. on the date specified herein. Except as
otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to
principal and interest on Loans denominated in an Alternative Currency shall be made to the
Administrative Agent, for the account of the respective Lenders to which such payment is owed, at
the applicable Administrative Agent’s Office in such Alternative Currency and in Same Day Funds not
later than the Applicable Time specified by the Administrative Agent on the dates specified herein.
Without limiting the generality of the foregoing, the Administrative Agent may require that any
payments due under this Agreement be made in the United States. If, for any reason, any Borrower
is prohibited by any Law from making any required payment hereunder in an Alternative Currency,
such Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative
Currency payment amount. The Administrative Agent will promptly distribute to each Lender its
Applicable Percentage (or other applicable share as provided herein) of such payment in like funds
as received by wire transfer to such Lender’s Lending Office. All payments received by the
Administrative Agent (i) after 1:00 p.m., in the case of payments in Dollars, or (ii) after the
Applicable Time specified by the Administrative Agent in the case of payments in an Alternative
Currency, shall in each case be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by any Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be.




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




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



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



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



Page 36









 





     4. Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans
and to make payments pursuant to Section 11.04(c) are several and not joint. The failure
of any Lender to make any Committed Loan, to fund any such participation or to make any payment
under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of
its corresponding obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Committed Loan, to purchase its participation or to make
its payment under Section 11.04(c).



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



     N. Sharing of Payments by Lenders. If any Lender shall, by exercising any right
of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest
on any of the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line
Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate
amount of such Committed Loans or participations and accrued interest thereon greater than its
pro rata share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at
face value) participations in the Committed Loans and subparticipations in L/C Obligations and
Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so
that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Committed Loans and other
amounts owing them, provided that:




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




     the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of a Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender and including any payment made to a Non-Extending Lender on its Maturity
Date), (y) the application of Cash Collateral provided for in Section 2.19, or (z)
any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing
Line Loans to any assignee or participant, other than to a Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).



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



     O. Increase in Commitments.



     1. Request for Increase. Provided there exists no Default, upon notice
to the Administrative Agent (which shall promptly notify the Lenders), the Company may from time to
time request an increase in the Aggregate Commitments by an amount (for all such requests) not
exceeding $250,000,000; provided that any such request for an increase shall be in a
minimum amount of $50,000,000. At the time of sending such notice, the Company (in consultation
with the Administrative Agent) shall specify the time period within which each Lender is requested
to respond (which shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders).



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



     3. Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall notify the Company and each Lender of the Lenders’ responses to each
request made hereunder. If the Lenders do not agree to the full amount of a requested increase,
subject to the approval of the Administrative Agent, the Swing Line Lender and each L/C Issuer
(which approvals shall not be unreasonably 



Page 37









 




withheld), the Company may also invite additional Eligible Assignees to become Lenders
pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and
its counsel.




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



     5. Conditions to Effectiveness of Increase. As a condition precedent to
such increase, the Company shall deliver to the Administrative Agent a certificate dated as of the
Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of
the Company (i) certifying and attaching the resolutions adopted by the Company approving or
consenting to such increase, and (ii) certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Article V and the other Loan
Documents are true and correct on and as of the Increase Effective Date, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case they are
true and correct as of such earlier date, and except that for purposes of this Section
2.15, the representations and warranties contained in Section 5.11(a) shall be deemed
to refer to the most recent statements furnished pursuant to Sections 6.01(a) and
6.01(b), (B) the Company is in pro forma compliance with the financial covenants contained
in Section 7.15 and (C) no Default or Event of Default exists. The Borrowers shall prepay
any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts
required pursuant to Section 3.05) to the extent necessary to keep the outstanding
Committed Loans ratable with any revised Applicable Percentages arising from any nonratable
increase in the Commitments under this Section.



     6. Conflicting Provisions. This Section shall supersede any provisions
in Sections 2.14 or 11.01 to the contrary.



     P. Extension of Maturity Date. 



     1. Requests for Extension. The Company may, by notice to the
Administrative Agent (who shall promptly notify the Lenders) not earlier than 60 days prior to the
second anniversary of the Closing Date (the “Second Anniversary Date”) and not later than
50 days prior to the Second Anniversary Date, request that each Lender extend such Lender’s
Maturity Date for one year.



     2. Lender Elections to Extend. Each Lender, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent given not earlier than 30 days
prior to the Second Anniversary Date and not later than the date (the “Notice Date”) that
is 20 days prior to the Second Anniversary Date, advise the Administrative Agent whether or not
such Lender agrees to such extension (and each Lender that determines not to so extend its Maturity
Date (a “Non-Extending Lender”) shall notify the Administrative Agent of such fact promptly
after such determination (but in any event no later than the Notice Date) and any Lender that does
not so advise the Administrative Agent on or before the Notice Date shall be deemed to be a
Non-Extending Lender. The election of any Lender to agree to such extension shall not obligate any
other Lender to so agree.



     3. Notification by Administrative Agent. The Administrative Agent shall
notify the Company of each Lender’s determination under this Section no later than the date 15 days
prior to the Second Anniversary Date (or, if such date is not a Business Day, on the next preceding
Business Day).



     4. Additional Commitment Lenders. The Company shall have the right on or
before the Second Anniversary Date to replace each Non-Extending Lender with, and add as “Lenders”
under this Agreement in place thereof, one or more Eligible Assignees (each, an “Additional
Commitment Lender”) in accordance with the procedures provided in Section 11.13, each
of which Additional Commitment Lenders shall have entered into an Assignment and Assumption
pursuant to which such Additional Commitment Lender shall, effective as of the Second Anniversary
Date, undertake a Commitment (and, if any such Additional Commitment Lender is already a Lender,
its Commitment shall be in addition to such Lender’s Commitment hereunder on such date).



     5. Minimum Extension Requirement. If (and only if) the total of the
Commitments of the Lenders that have agreed so to extend their Maturity Date and the additional
Commitments of the Additional Commitment Lenders shall be more than 50% of the aggregate amount of
the Commitments in effect immediately prior to the Notice Date, then, effective as of the Second
Anniversary Date, the Maturity 



Page 38









 




Date of each Extending Lender and of each Additional Commitment Lender shall be extended
to the date falling one year after the Maturity Date (except that, if such date is not a Business
Day, such Maturity Date as so extended shall be the next preceding Business Day) and each
Additional Commitment Lender shall thereupon become a “Lender” for all purposes of this
Agreement.




     6. Conditions to Effectiveness of Extensions. Notwithstanding the
foregoing, the extension of the Maturity Date pursuant to this Section shall not be effective with
respect to any Lender unless:




     no Default shall have occurred and be continuing on the date of such extension and
after giving effect thereto;




     the representations and warranties contained in this Agreement are true and correct
on and as of the date of such extension and after giving effect thereto, as though made on
and as of such date (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date); and




     the Administrative Agent shall have received a certificate from the Company signed
by a Responsible Officer on behalf of the Company certifying the accuracy of the foregoing
clauses (i) and (ii).



     7. Maturity Date for Non-Extending Lenders. On the Maturity Date of each
Non-Extending Lender, the Borrowers shall repay such Non-Extending Lender in accordance with
Section 2.08 and after giving effect thereto shall prepay any Committed Loans outstanding
on such date (and pay any additional amounts required pursuant to Section 3.05) to the
extent necessary to keep outstanding Committed Loans ratable with any revised Applicable
Percentages of the respective Lenders effective as of such date.



     8. Conflicting Provisions. This Section shall supersede any provisions
in Section 2.14 or 11.01 to the contrary.



     Q. No Advisory or Fiduciary Responsibility. In connection with all
aspects of each transaction contemplated hereby (including in connection with any amendment, waiver
or other modification hereof or of any other Loan Document), each Borrower acknowledges and agrees
that: (i) (A) the arranging and other services regarding this Agreement provided by the
Administrative Agent and the Arrangers, are arm’s-length commercial transactions between the
Borrowers and their affiliates, on the one hand, and the Administrative Agent and the Arrangers, on
the other hand, (B) the Borrowers have consulted their own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate, and (C) the Borrowers are capable of evaluating,
and understand and accept, the terms, risks and conditions of the transactions contemplated hereby
and by the other Loan Documents; (ii) (A) the Administrative Agent and the Arrangers each is and
has been acting solely as a principal and, except as expressly agreed in writing by the relevant
parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the
Borrowers or any of their Affiliates, or any other Person and (B) neither the Administrative Agent
nor any Arranger has any obligation to the Borrowers or any of their Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (iii) the Administrative Agent and the Arrangers and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Borrowers and their Affiliates, and neither the Administrative Agent nor any Arranger
has any obligation to disclose any of such interests to the Borrowers or their Affiliates. To the
fullest extent permitted by law, each Borrower hereby waives and releases any claims that it may
have against the Administrative Agent and the Arrangers with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby, provided that the foregoing shall not be construed as a release of any obligations that are
expressly stated to be duties hereunder.



     R. Designated Borrowers. 



     1. The Company may at any time, upon not less than 15 Business Days’ notice from
the Company to the Administrative Agent (or such shorter period as may be agreed by the
Administrative Agent in its sole discretion), designate any Subsidiary of the Company that is a
Foreign Subsidiary (an “Applicant Borrower”) as a Designated Borrower to receive Loans
hereunder by delivering to the Administrative Agent (which shall promptly deliver counterparts
thereof to each Lender) a duly executed notice and agreement in substantially the form of
Exhibit F (a “Designated Borrower Request and Assumption Agreement”);
provided that such Applicant Borrower is incorporated (or similarly organized) in a
jurisdiction as to which all 



Page 39









 




Lenders have confirmed to the Administrative Agent their ability and willingness to make
Committed Loans into such jurisdiction; provided, however, that each Lender hereby
confirms its ability and willingness to make Committed Loans to a Designated Borrower into the
following jurisdictions: (i) the Netherlands, (ii) the Federal Republic of Germany, (iii) the
Republic of Ireland and (iv) England.




     2. The parties hereto acknowledge and agree that prior to any Applicant Borrower
becoming entitled to utilize the credit facilities provided for herein the Administrative Agent and
the Lenders shall have received such supporting resolutions, incumbency certificates, opinions of
counsel (including, without limitation, opinions of appropriate counsel to such Applicant Borrower)
and other documents or information, in form, content and scope reasonably satisfactory to the
Administrative Agent, as may be requested by the Administrative Agent or the Required Lenders in
their sole discretion (including, without limitation, all documentation and other information
requested to comply with Section 11.16), and Notes signed by such new Borrowers to the
extent any Lenders so require.



     3. Upon receipt of an executed and completed Designated Borrower Request and
Assumption Agreement, the Administrative Agent shall promptly forward such Designated Borrower
Request and Assumption Agreement to the Lenders. Any Lender not objecting to an Applicant Borrower
within 5 Business Days of its receipt of such Designated Borrower Request and Assumption Agreement
shall be deemed to have agreed that such Applicant Borrower shall be entitled to receive Loans
hereunder. If the Administrative Agent and the Required Lenders agree that an Applicant Borrower
shall be entitled to receive Loans hereunder, then promptly following receipt of all such requested
resolutions, incumbency certificates, opinions of counsel and other documents or information, the
Administrative Agent shall send a notice in substantially the form of Exhibit G (a
“Designated Borrower Notice”) to the Company and the Lenders specifying the effective date
upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof,
whereupon each of the Lenders agrees to permit such Designated Borrower to receive Loans hereunder,
on the terms and conditions set forth herein, and each of the parties agrees that such Designated
Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no
Committed Loan Notice may be submitted by or on behalf of such Designated Borrower until the date
five Business Days after such effective date. In addition, each of the Required Lenders approving
the addition of such Designated Borrower hereunder further agrees that such approval shall also
constitute its consent to the Administrative Agent (on behalf of such Required Lenders) entering
into an amendment to this Agreement and any other Loan Document with the Borrowers in connection
with the addition of such Designated Borrower to the extent such amendment (i) is reasonably
necessary either to permit, or to reduce or eliminate any Taxes that might otherwise be payable in
connection with, the making of Loans to such Designated Borrower as a result of the jurisdiction of
formation thereof and (ii) is not materially adverse to the interests of the Lenders.



     4. The Obligations of each Designated Borrower shall be guaranteed by the Company
pursuant to the Guaranty. The Obligations of all Designated Borrowers shall be several in
nature.



     5. Each Subsidiary of the Company that is or becomes a “Designated Borrower”
pursuant to this Section 2.18 hereby irrevocably appoints the Company as its agent for all
purposes relevant to this Agreement and each of the other Loan Documents, including (i) the giving
and receipt of notices, (ii) the execution and delivery of all documents, instruments and
certificates contemplated herein and all modifications hereto, and (iii) the receipt of the
proceeds of any Loans made by the Lenders to any such Designated Borrower hereunder. Any
acknowledgment, consent, direction, certification or other action which might otherwise be valid or
effective only if given or taken by all Borrowers, or by each Borrower acting singly, shall be
valid and effective if given or taken only by the Company, whether or not any such other Borrower
joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other
communication delivered to the Company in accordance with the terms of this Agreement shall be
deemed to have been delivered to each Designated Borrower.



     6. In connection with each additional Applicant Borrower, the Company may,
subject to the written approval of the Administrative Agent and the Required Lenders, request an
increase in the Designated Borrower Sublimit (which, for the avoidance of doubt, shall in no event
increase the Aggregate Commitments) by an amount for all such requests not exceeding $100,000,000;
provided that (i) no Default shall exist, (ii) any such request for an increase shall be in
a minimum amount of $50,000,000, and (iii) the Company may make a maximum of two such requests
hereunder.



     7. The Company may from time to time, upon not less than 15 Business Days’ notice
from the Company to the Administrative Agent (or such shorter period as may be agreed by the
Administrative Agent in 



Page 40









 




its sole discretion), terminate a Designated Borrower’s status as such, provided
that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable
by such Designated Borrower on account of any Loans made to it, as of the effective date of such
termination. The Administrative Agent will promptly notify the Lenders of any such termination of
a Designated Borrower’s status.




     S. Cash Collateral.



     1. Certain Credit Support Events. Upon the request of the Administrative
Agent or the applicable L/C Issuer (i) if such L/C Issuer has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding,
the Company shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all
L/C Obligations. At any time that there shall exist a Defaulting Lender, immediately upon the
request of the Administrative Agent, any L/C Issuer or the Swing Line Lender, the Company shall
deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting
Exposure (after giving effect to Section 2.20(a)(iv) and any Cash Collateral provided by
the Defaulting Lender).



     2. Grant of Security Interest. All Cash Collateral (other than credit
support not constituting funds subject to deposit) shall be maintained in blocked, non-interest
bearing deposit accounts at Bank of America. The Company, and to the extent provided by any
Lender, such Lender, hereby grants to (and subjects to the control of) the Administrative Agent,
for the benefit of the Administrative Agent, the L/C Issuers and the Lenders (including the Swing
Line Lender), and agrees to maintain, a first priority security interest in all such cash, deposit
accounts and all balances therein, and all other property so provided as collateral pursuant
hereto, and in all proceeds of the foregoing, all as security for the obligations to which such
Cash Collateral may be applied pursuant to Section 2.19(c). If at any time the
Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person
other than the Administrative Agent as herein provided, or that the total amount of such Cash
Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the
Company or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent,
pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to
eliminate such deficiency.



     3. Application. Notwithstanding anything to the contrary contained in
this Agreement, Cash Collateral provided under any of this Section 2.19 or Sections
2.04, 2.05, 2.06, 2.20 or 8.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations,
Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for
which the Cash Collateral was so provided, prior to any other application of such property as may
be provided for herein. 



     4. Release. Cash Collateral (or the appropriate portion thereof)
provided to reduce Fronting Exposure or other obligations shall be released promptly following (i)
the elimination of the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable Lender (or, as
appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the
Administrative Agent’s good faith determination that there exists excess Cash Collateral;
provided that (x) Cash Collateral furnished by or on behalf of a Borrower shall not be
released during the continuance of a Default or Event of Default (and following application as
provided in this Section 2.19 may be otherwise applied in accordance with Section
8.03), and (y) the Person providing Cash Collateral and the applicable L/C Issuer or Swing Line
Lender, as applicable, may agree that Cash Collateral shall not be released but instead held to
support future anticipated Fronting Exposure or other obligations.



     T. Defaulting Lenders.



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




     Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 11.01.



Page 41









 






     Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 11.08), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by that Defaulting Lender to an L/C Issuer
or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or
requested by the applicable L/C Issuer, the Swing Line Lender or the Company, to be held as
Cash Collateral for future funding obligations of that Defaulting Lender of any
participation in any Swing Line Loan or Letter of Credit; fourth, as the Company may request
(so long as no Default or Event of Default exists), to the funding of any Loan in respect of
which that Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Company, to be held in a non-interest bearing deposit account
and released in order to satisfy obligations of that Defaulting Lender to fund Loans under
this Agreement; sixth, to the payment of any amounts owing to the Lenders, any L/C Issuer or
Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained
by any Lender, any L/C Issuer or Swing Line Lender against that Defaulting Lender as a
result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh,
so long as no Default or Event of Default exists, to the payment of any amounts owing to the
Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the
Borrowers against that Defaulting Lender as a result of that Defaulting Lender’s breach of
its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise
directed by a court of competent jurisdiction; provided that if (x) such payment is
a payment of the principal amount of any Loans or L/C Borrowings in respect of which that
Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C
Borrowings were made at a time when the conditions set forth in Section 4.02 were
satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C
Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to
the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
pursuant to this Section 2.20(a)(ii) shall be deemed paid to and redirected by that
Defaulting Lender, and each Lender irrevocably consents hereto. 




     Certain Fees. That Defaulting Lender (x) shall be entitled to receive any
facility fee pursuant to Section 2.10(a) for any period during which that Lender is
a Defaulting Lender only to extent allocable to the sum of (1) the Outstanding Amount of the
Committed Loans funded by it and (2) its Applicable Percentage of the stated amount of
Letters of Credit and Swing Line Loans for which it has provided Cash Collateral pursuant to
Section 2.04, Section 2.05, Section 2.19, or Section
2.20(a)(ii), as applicable (and the Company shall (A) be required to pay to each of the
applicable L/C Issuer and the Swing Line Lender, as applicable, the amount of such fee
allocable to its Fronting Exposure arising from that Defaulting Lender and (B) not be
required to pay the remaining amount of such fee that otherwise would have been required to
have been paid to that Defaulting Lender) and (y) shall be limited in its right to receive
Letter of Credit Fees as provided in Section 2.04(i).




     Reallocation of Applicable Percentages to Reduce Fronting Exposure. During
any period in which there is a Defaulting Lender, for purposes of computing the amount of
the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in
Letters of Credit or Swing Line Loans pursuant to Sections 2.04 and 2.05,
the “Applicable Percentage” of each non-Defaulting Lender shall be computed without giving
effect to the Commitment of that Defaulting Lender; provided that (i) each such
reallocation shall be given effect only if, at the date the applicable Lender becomes a
Defaulting Lender, no Default or Event of Default exists; and (ii) the aggregate obligation
of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of
Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1) the
Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding Amount
of the Committed Loans of that Lender. No reallocation hereunder shall constitute a waiver
or release of any claim of any party hereunder against a Defaulting Lender arising from that
Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as
a result of such non-Defaulting Lender’s increased exposure following such
reallocation.



     2. Defaulting Lender Cure. If the Company, the Administrative Agent,
Swing Line Lender and each L/C Issuer agree in writing in their sole discretion that a Defaulting
Lender should no longer be deemed 



Page 42









 




to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto,
whereupon as of the effective date specified in such notice and subject to any conditions set forth
therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to
the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such
other actions as the Administrative Agent may determine to be necessary to cause the Committed
Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held
on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving
effect to Section 2.20(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender;
provided that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and
provided, further, that except to the extent otherwise expressly agreed by the
affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender.




III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     A. Taxes.



     1. Payments Free of Taxes. Any and all payments by or on account of any
obligation of any Borrower hereunder or under any other Loan Document shall be made free and clear
of and without reduction or withholding for any Taxes, except as required by applicable Law,
provided that if any Borrower shall be required by applicable law to deduct or withhold any
Taxes from such payments, then (i) if such Taxes are Indemnified Taxes or Other Taxes, the sum
payable shall be increased as necessary so that after any required withholding or the making of all
required deductions (including withholding and deductions applicable to additional sums payable
under this Section), the Administrative Agent, Lender or L/C Issuer, as the case may be, receives
an amount equal to the sum it would have received had no such withholding or deductions been made,
(ii) such Borrower shall make such withholdings or deductions and (iii) such Borrower shall timely
pay the full amount so withheld or deducted by it to the relevant Governmental Authority in
accordance with applicable law.



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



     3. Tax Indemnification. (i) Each applicable Borrower shall indemnify the
Administrative Agent, each applicable Lender and each applicable L/C Issuer, within 30 days after
written demand (accompanied by appropriate documentation) therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section but only to the extent necessary to preserve
the after-tax yield the Lender would have received if such Indemnified Taxes or Other Taxes or
Taxes imposed thereon had not been imposed) withheld or deducted on payments to, or paid by, the
Administrative Agent, such Lender or such L/C Issuer, as the case may be, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority.




     (ii) Each Lender and each L/C Issuer shall severally indemnify the Administrative
Agent, within 10 days after demand therefor, for (A) any Taxes (but, with respect to
Indemnified Taxes, only to the extent that the Borrowers have not already indemnified the
Administrative Agent for such Indemnified Taxes and without limiting the obligation of any
Borrower to do so) attributable to such Lender or such L/C Issuer that are payable or paid
by the Administrative Agent in connection with any Loan Document and (B) any Taxes
attributable to the Lender’s failure to comply with Section 11.06(d), and in each
case, any reasonable expenses arising therefrom or with respect thereto, whether or not such
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the nature and amount of such payment or liability delivered to any
Lender or any L/C Issuer by the Administrative Agent shall be conclusive absent manifest
error. Each Lender and each L/C Issuer hereby authorizes the Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender or such L/C Issuer, as
the case may be, under this Agreement or any other Loan Document against any amount due to
the Administrative Agent under this clause (ii). The agreements in this clause (ii) shall
survive the resignation and/or replacement of the Administrative Agent, any assignment of
rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.



     4. Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower shall
deliver to the 



Page 43









 




Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.




     5. Status of Lenders. (i) Each Foreign Lender shall deliver to the
Company and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Company (on behalf of such
Borrower) or the Administrative Agent), but only if such Foreign Lender is legally entitled to do
so, whichever of the following is applicable:




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




     (2) duly completed copies of Internal Revenue Service Form
W-8ECI,




     (3) duly completed copies of Internal Revenue Service Form W-8IMY
and all required supporting documentation. 




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




     (5) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
applicable law to permit the Company to determine the withholding or deduction
required to be made.




     (ii) Each Lender that is not a Foreign Lender shall on or before the date such Lender
becomes a Lender under this Agreement provide to the Company (with a copy to the
Administrative Agent) a duly completed copy of Internal Revenue Service Form W-9 or such
other documentation or information prescribed by applicable Laws or reasonably requested by
the Company (on behalf of a Borrower) or the Administrative Agent as will enable such
Borrower or the Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements.




     (iii) If any Foreign Lender sells, assigns, grants a participation in, or otherwise
ceases to be the beneficial owner of any portion of its Loans, such Foreign Lender shall
deliver to the Administrative Agent a revised duly executed IRS Form W-8BEN or IRS Form
W-8ECI (or successor or replacement forms) reflecting the portion of the Loans the Foreign
Lender has retained and a duly executed W-8IMY (or successor or replacement form), including
required attachments, reflecting the portion of its Loans sold. If such Person fails to
deliver the above forms or other documentation, then the Administrative Agent may withhold
from any interest payment to such Person an amount equivalent to the applicable withholding
tax imposed by Sections 1441 and 1442 of the Code, without reduction, and such Person may
not collect any such payments from the Company. If any Governmental Authority asserts that
the Administrative Agent did not properly withhold any tax or other amount from payments
made in respect of such Person, such Person shall indemnify the Administrative Agent
therefor, including all penalties and interest, any taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent under this Section, and costs and expenses
(including all reasonable out-of-pocket fees and disbursements of any law firm or other
external counsel, the allocated costs of internal legal services and all disbursements of
internal counsel) of the Administrative Agent. The obligation of the Lenders under this
paragraph shall survive the termination of this Agreement, repayment of all Loans and the
resignation or replacement of the Administrative Agent.




     (iv) Without limiting the obligations of the Lenders set forth above regarding delivery
of certain forms and documents to establish each Lender’s status for U.S. withholding tax
purposes, each Lender agrees promptly to deliver to the Administrative Agent or the Company,
as the Administrative Agent or the Company shall reasonably request, on or prior to the
Closing Date, and in a timely fashion thereafter, such other documents and forms required by
any relevant taxing authorities under the Laws of any other jurisdiction, duly executed and
completed by such Lender, as are required under such Laws to confirm such Lender’s
entitlement to any available exemption from, or reduction of, applicable withholding taxes
in respect of all payments to be made to such Lender by any Borrower pursuant to this
Agreement or otherwise to establish such Lender’s status for withholding tax purposes in
such other jurisdiction. Each



Page 44









 







Lender shall promptly (A) notify the Administrative Agent and the Company of any change
in circumstances which would modify or render invalid any such claimed exemption or
reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any
such jurisdiction that such Borrower make any deduction or withholding for taxes from
amounts payable to such Lender. Additionally, such Borrower shall promptly deliver to the
Administrative Agent or any Lender, as the Administrative Agent or such Lender shall
reasonably request, on or prior to the Closing Date in the case of the Company or the date
such Designated Borrower becomes a Borrower hereunder, and in a timely fashion thereafter,
such documents and forms required by any relevant taxing authorities under the Laws of any
jurisdiction, duly executed and completed by such Borrower, as are required to be furnished
by such Lender or the Administrative Agent under such Laws in connection with any payment by
the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in connection
with the Loan Documents, with respect to such jurisdiction.




     (v) If a payment made to a Lender under any Loan Document would be subject to U.S.
federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Lender shall deliver to the applicable Borrower
and the Administrative Agent at the time or times prescribed by law and at such time or
times reasonably requested by the applicable Borrower or the Administrative Agent such
documentation prescribed by applicable law (including as prescribed by Section
1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the
applicable Borrower or the Administrative Agent as may be necessary for the applicable
Borrower and the Administrative Agent to comply with their obligations under FATCA and to
determine that such Lender has complied with such Lender’s obligations under FATCA or to
determine the amount to deduct and withhold from such payment. Solely for purposes of this
clause (v), “FATCA” shall include any amendments made to FATCA after the date of this
Agreement.



     6. Treatment of Certain Refunds. If the Administrative Agent, any Lender
or any L/C Issuer determines, in its sole discretion, that it has received a refund of any
Indemnified Taxes or Other Taxes as to which it has been indemnified by any Borrower or with
respect to which any Borrower has paid additional amounts pursuant to this Section, it shall pay to
such Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by such Borrower under this Section with respect to the Indemnified Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent, such Lender or such L/C Issuer, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund), provided
that each Borrower, upon the request of the Administrative Agent, such Lender or such L/C Issuer,
agrees to repay the amount paid over to such Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such
Lender or such L/C Issuer in the event the Administrative Agent, such Lender or such L/C Issuer is
required to repay such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent, any Lender or any L/C Issuer to make available its
tax returns (or any other information relating to its taxes that it deems confidential) to any
Borrower or any other Person.



     B. Illegality. If any Lender determines that any Law has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Loans (whether denominated in Dollars or an Alternative
Currency) whose interest is determined by reference to the Eurocurrency Rate, or to determine or
charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars or any Alternative Currency in the applicable interbank market, then, on notice thereof by
such Lender to the Company through the Administrative Agent, (i) any obligation of such Lender to
make or continue Eurocurrency Rate Loans in the affected currency or currencies or, in the case of
Eurocurrency Rate Loans in Dollars, to convert Base Rate Committed Loans to Eurocurrency Rate Loans
shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or
maintaining Base Rate Loans the interest rate on which is determined by reference to the
Eurocurrency Rate component of the Base Rate, the interest rate on Base Rate Loans of such Lender
shall, if necessary to avoid such illegality, be determined by the Administrative Agent without
reference to the Eurocurrency Rate component of the Base Rate, in each case until such Lender
notifies the Administrative Agent and the Company that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or convert all such Eurocurrency
Rate Loans (in the case of Loans made to the Company in Dollars) of such Lender to Base Rate Loans
(the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such
illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate
component of the Base Rate) or to Loans bearing interest at the Cost of Funds Rate plus the
Applicable Rate for Eurocurrency Rate Loans (in the case of any other Loan), either on 



Page 45









 




the last day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurocurrency Rate Loans and (y) if such notice asserts the illegality of
such Lender determining or charging interest rates based upon the Eurocurrency Rate, the
Administrative Agent shall during the period of such suspension compute the Base Rate applicable to
such Lender without reference to the Eurocurrency Rate component thereof until the Administrative
Agent is advised in writing by such Lender that it is no longer illegal for such Lender to
determine or charge interest rates based upon the Eurocurrency Rate. Upon any such prepayment or
conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or
converted.




     C. Inability to Determine Rates. If the Required Lenders determine that for any
reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or
continuation thereof that (a) deposits (whether in Dollars or an Alternative Currency) are not
being offered to banks in the applicable offshore interbank market for such currency for the
applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable
means do not exist for determining the Eurocurrency Base Rate for any requested Interest Period
with respect to a proposed Eurocurrency Rate Loan (whether in Dollars or an Alternative Currency)
or in connection with an existing or proposed Base Rate Loan, or (c) the Eurocurrency Base Rate for
any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately
and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Company and each Lender. Thereafter, (x) the obligation of the Lenders to
make or maintain Eurocurrency Rate Loans shall be suspended, and (y) in the event of a
determination described in the preceding sentence with respect to the Eurocurrency Rate component
of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate
shall be suspended, in each case until the Administrative Agent (upon the instruction of the
Required Lenders) revokes such notice. Upon receipt of such notice, the Company may revoke any
pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or,
failing that, will be deemed to have converted such request into a request (a) for a Committed
Borrowing of (or conversion to) Base Rate Loans in the amount specified therein, in the case of
Eurocurrency Rate Loans to the Company denominated in Dollars, or (b) for a Committed Borrowing of
(or conversion to) a Loan bearing interest at the Cost of Funds Rate plus the Applicable
Rate for Eurocurrency Rate Loans, in the case of any other Loan.



     D. Increased Costs.



     1. Increased Costs Generally. If any Change in Law shall:




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




     subject any Lender or any L/C Issuer to any tax of any kind whatsoever on or with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurocurrency Rate Loan made by it or change the basis of taxation of payments to such
Lender or such L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded
Tax payable by such Lender or such L/C Issuer); or




     cause the Mandatory Cost, as calculated hereunder, not to represent the cost to any
Lender of complying with the requirements of the Bank of England and/or the Financial
Services Authority or the European Central Bank in relation to its making, funding or
maintaining Eurocurrency Rate Loans; or




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


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Loan the interest on which is determined by reference to the Eurocurrency Rate (or
of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or
such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of





Page 46









 







maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the
amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of
principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the
Company will pay (or cause the applicable Designated Borrower to pay) on demand to such Lender or
such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such
Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction
suffered.




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



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



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



     5. Additional Reserve Requirements. The Company shall pay (or cause the
applicable Designated Borrower to pay) to each Lender, as long as such Lender shall be required to
comply with any reserve ratio requirement or analogous requirement (other than those compensated
through Mandatory Costs) of any central banking or financial regulatory authority imposed in
respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such
additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the
nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such
Lender (as determined by such Lender in good faith, which determination shall be conclusive), which
shall be due and payable on each date on which interest is payable on such Loan, provided
the Company shall have received at least 15 days’ prior notice (with a copy to the Administrative
Agent) of such additional costs from such Lender. If a Lender fails to give notice 15 days prior
to the relevant Interest Payment Date, such additional costs shall be due and payable 15 days from
receipt of such notice.



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



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




Page 47











 





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



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



     4. any assignment of a Eurocurrency Rate Loan on a day other than the last day of
the Interest Period therefor as a result of a request by the Company pursuant to Section
11.13;


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




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



     F. Mitigation Obligations; Replacement of Lenders.



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



     2. Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if any Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01, the
Company may replace such Lender in accordance with Section 11.13.



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



IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     A. Conditions of Initial Credit Extensions. The Closing Date shall occur on the
date that the Administrative Agent shall have received all of the following, in form and substance
satisfactory to the Administrative Agent and each Lender, and in sufficient copies for each
Lender:



     1. Loan Documents. This Agreement and any Notes executed by each party
thereto shall have been delivered to Administrative Agent, sufficient in number for distribution to
the Administrative Agent, each Lender and the Company.



     2. Resolutions; Incumbency.




     Copies of the resolutions or other actions of each Borrower authorizing the
transactions contemplated hereby (including, to the extent applicable, positive advice from
any works council) 



Page 48









 







certified as of the Closing Date by the Secretary or an Assistant Secretary of such
Borrower (or if no Secretary or Assistant Secretary exists, a Responsible Officer of such
Borrower); and




     A certificate of the Secretary or Assistant Secretary of each Borrower (or if no
Secretary or Assistant Secretary exists, a Responsible Officer of such Borrower) certifying
the names and true signatures of the officers of such Borrower authorized to execute,
deliver and perform, as applicable, this Agreement, and all other Loan Documents to be
delivered by it hereunder.



     3. Organization Documents; Good Standing. Each of the following
documents:




     the certificate of incorporation (or equivalent document) and the bylaws (or
equivalent document) of each Borrower as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of such Borrower (or if no Secretary or Assistant Secretary
exists, a Responsible Officer of such Borrower) as of the Closing Date; and




     if available and where customary in such jurisdiction, a good standing certificate
(or equivalent document) for each Borrower from the Secretary of State (or similar,
applicable Governmental Authority) of its state of incorporation, organization or formation
and the state of its principal place of business as of a recent date.



     4. Legal Opinions. An opinion of (i) Latham and Watkins, special counsel
to the Borrowers and (ii) appropriate local counsel for each of the Designated Borrowers, in each
case, addressed to the Administrative Agent and the Lenders, in form and substance satisfactory to
the Administrative Agent.



     5. Payment of Fees. Evidence of payment by the Company of all accrued
and unpaid fees, to the extent then due and payable on the Closing Date, including without
limitation all accrued interest and fees due and owing under the Existing Credit Agreement.



     6. Certificate. A certificate signed by a Responsible Officer of the
Company on behalf of each of the Borrowers, dated as of the Closing Date, stating:




     that the representations and warranties contained in Article V are true and correct
on and as of such date, as though made on and as of such date;




     that no Default or Event of Default exists or would result from the initial
Borrowing; 




     that there has occurred since December 31, 2010, no event or circumstance that has
resulted or could reasonably be expected to result in a Material Adverse Effect; and




     the current Debt Ratings.



     7. Existing Credit Agreement. Evidence that any revolving loans or other
monetary obligations under the Existing Credit Agreement as in effect immediately prior to the
effectiveness of this Agreement have been paid in full or refinanced on the Closing Date with Loans
hereunder.



     8. Other Documents. Such other approvals, opinions, documents or
materials as the Administrative Agent or any Lender may reasonably request.



     Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



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



Page 49









 





     1. The representations and warranties of the Borrowers contained in Article
V shall be true and correct on and as of the date of such Credit Extension, except to the
extent that such representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date, and except that for purposes of this
Section 4.02, the representations and warranties contained in Section 5.11(a) shall
be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and
6.01(b).



     2. No Default or Event of Default shall exist or shall result from such Credit
Extension.



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



     4. If the applicable Borrower is a Designated Borrower, then the conditions of
Section 2.18 to the designation of such Borrower as a Designated Borrower shall have been
met to the satisfaction of the Administrative Agent. 



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



V.

REPRESENTATIONS AND WARRANTIES




     Each Borrower represents and warrants to the Administrative Agent and each Lender that:



     A. Corporate Existence and Power. The Company and each of its Subsidiaries:



     1. is duly organized or formed, validly existing and, as applicable, in good
standing under the laws of the jurisdiction of its incorporation or organization;



     2. has all the requisite power and authority and all the requisite governmental
licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its
business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it
is a party;



     3. is duly qualified and is licensed and, as applicable, in good standing under
the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of
its business requires such qualification or license; and



     4. is in compliance with all Requirements of Law;


except, in each case referred to in subsection (c) or (d), to the extent that the failure to do so
could not reasonably be expected to have a Material Adverse Effect.




     B. Corporate Authorization; No Contravention. The execution, delivery and
performance by each Borrower of this Agreement and each other Loan Document to which such Borrower
is party, have been duly authorized by all necessary corporate or other organizational action, and
do not and will not:



     1. contravene the terms of any of such Borrower’s Organization Documents;



     2. conflict with or result in any breach or contravention of, or the creation of
any Lien under, any document evidencing any material Contractual Obligation to which such Borrower
is a party or any order, injunction, writ or decree of any Governmental Authority to which such
Borrower or its property is subject; or



     3. violate any Requirement of Law applicable to such Borrower.



     C. Governmental Authorization. No approval, consent, exemption, authorization,
or other action by, or notice to, or filing with, any Governmental Authority is necessary or
required in connection 



Page 50









 




with the execution, delivery or performance by, or enforcement against, the Company or any
of its Subsidiaries of this Agreement or any other Loan Document other than those which have
already been obtained or made.




     D. Binding Effect. This Agreement and each other Loan Document to which the
Company or any of its Subsidiaries is a party constitute the legal, valid and binding obligations
of the Company and its Subsidiaries to the extent it is a party thereto, enforceable against such
Person in accordance with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights
generally or by equitable principles relating to enforceability.



     E. Litigation. Except as specifically disclosed in Schedule 5.05, there
are no actions, suits, proceedings, claims or disputes pending, or to the best knowledge of the
Company, threatened or contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against the Company or its Subsidiaries or any of their respective properties
which:



     1. purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby or thereby; or



     2. may reasonably be expected to have a Material Adverse Effect. No injunction,
writ, temporary restraining order or any order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of
this Agreement or any other Loan Document, or directing that the transactions provided for herein
or therein not be consummated as herein or therein provided.



     F. No Default. No Default or Event of Default exists or would result from the
incurring of any Obligations by any Borrower. As of the Closing Date, neither any Borrower nor any
Subsidiary of the Company is in default under or with respect to any Contractual Obligation in any
respect which, individually or together with all such defaults, could reasonably be expected to
have a Material Adverse Effect.



     G. ERISA Compliance. Except as specifically disclosed in Schedule
5.07:



     1. Each Plan sponsored or maintained by the Company or an ERISA Affiliate is in
compliance in all respects with the applicable provisions of ERISA, the Code and other federal or
state law except where the failure to so comply, together with all other such failures to comply,
could not reasonably be expected to result in liability to the Company in an aggregate amount in
excess of $25,000,000. Each Plan sponsored or maintained by the Company or an ERISA Affiliate
which is intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS and to the best knowledge of the Company, nothing has occurred
which would cause the loss of such qualification. The Company and each ERISA Affiliate have made
all required contributions to any Plan subject to Section 412 of the Code sponsored, maintained or
required to be contributed to by the Company or an ERISA Affiliate, and no application for a
funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan sponsored or maintained by the Company or an ERISA Affiliate,
except where the failure to make such required contribution, together with all such other failures
to make required contributions, could not reasonably be expected to result in liability of the
Company in an aggregate amount in excess of $25,000,000.



     2. There are no pending or, to the best knowledge of Company, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan sponsored or
maintained by the Company or an ERISA Affiliate which has resulted or could reasonably be expected
to result in a liability of the Company in an aggregate amount in excess of $25,000,000. There has
been no prohibited transaction or violation of the fiduciary responsibility rules with respect to
any Plan, other than a Multiemployer Plan or, to the knowledge of the Company and each ERISA
Affiliate, with respect to any Multiemployer Plan, which has resulted or could reasonably be
expected to result in a Material Adverse Effect.



     3. (i) No ERISA Event or Events have occurred which could reasonably be expected
to result in liability of the Company in an aggregate amount in excess of $25,000,000; (ii) the
aggregate amount of Unfunded Pension Liability among all Pension Plans does not exceed $25,000,000;
(iii) neither the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur,
liability under Title IV of ERISA with respect to all Pension Plans (other than premiums due and
not delinquent under Section 4007 of ERISA) in an aggregate amount in excess of $25,000,000; (iv)
neither the Company nor any ERISA Affiliate has incurred, or 



Page 51









 




reasonably expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to all Plans in an aggregate amount in excess of $25,000,000; and (v)
neither the Company nor any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA and which could reasonably be expected to result in liability of
the Company in an amount in excess of $25,000,000.




     H. Use of Proceeds; Margin Regulations. The proceeds of the Loans are to be used
solely for the purposes set forth in and permitted by Section 6.12. Neither any Borrower
nor any Subsidiary of the Company is generally engaged in the business of purchasing or selling
Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock.



     I. Title to Properties. The Company and each Subsidiary have good record and
marketable title in fee simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of their respective businesses, except for such defects in title as
could not, individually or in the aggregate, have a Material Adverse Effect. As of the Closing
Date, the property of the Company and its Subsidiaries is subject to no Liens, other than Permitted
Liens.



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



     K. Financial Condition.



     1. The (i) audited consolidated financial statements of the Company and its
Subsidiaries dated December 31, 2010, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for the fiscal year ended on that date, and (ii)
unaudited consolidated financial statements of the Company and its Subsidiaries dated March 31,
2011, and the related consolidated statements of income or operations, shareholders’ equity and
cash flows for the fiscal quarter ended on that date:




     were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, subject to ordinary, good
faith year end audit adjustments and the absence of footnotes;




     fairly present the financial condition of the Company and its Subsidiaries as of
the date thereof and results of operations for the period covered thereby; and




     except as specifically disclosed in Schedule 5.11, show all material
indebtedness and other liabilities, direct or contingent, of the Company and its
consolidated Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments and Contingent Obligations.



     2. Since December 31, 2010, there has been no Material Adverse Effect.



     L. Environmental Matters. Except as specifically disclosed in Schedule
5.12, no Borrower is in violation of any Environmental Laws and there are no pending
Environmental Claims against any Borrower or the Borrowers collectively that, individually or in
the aggregate, would reasonably be expected to have a Material Adverse Effect.



     M. Regulated Entities. None of the Company, any Person controlling the Company,
any Borrower, or any Subsidiary, is an “Investment Company” within the meaning of the Investment
Company Act of 1940. 



     N. Subsidiaries. As of the date of this Agreement, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule 5.14 hereto
and has no equity investments in any other corporation or entity other than those specifically
disclosed in part (b) of Schedule 5.14. Unless otherwise indicated on Schedule
5.14, as of the date of this Agreement, all of the issued and outstanding shares of capital
stock of each of the Subsidiaries listed on Schedule 5.14 are owned directly or indirectly
through Wholly-Owned Subsidiaries by the Company and all of such shares have been duly and validly
authorized and 



Page 52









 




issued and are fully paid and non-assessable and no party has a right to acquire any such
capital stock and there are no outstanding subscription options, warrants, commitments, convertible
securities, preemptive rights or other rights exercisable or exchangeable for or convertible into
such capital stock. 




     O. Insurance. Except as specifically disclosed in Schedule 5.15, the
properties of the Company and its Subsidiaries are insured as required by Section
6.06.



     P. Swap Obligations. Neither the Company nor any of its Subsidiaries has
incurred any outstanding obligations under any Swap Contracts, other than Permitted Swap
Obligations.



     Q. OFAC. None of the Company, any Subsidiary of the Company or any Affiliate of
the Company: (a) is a Sanctioned Person, (b) has more than fifteen percent (15%) of its assets in
Sanctioned Countries, or (c) derives more than fifteen percent (15%) of its operating income from
investments in, or transactions with Sanctioned Persons or Sanctioned Countries. The proceeds of
any Loan will not be used and have not been used to fund any operations in, finance any investments
or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Country.



     R. Full Disclosure. None of the representations or warranties made by the
Company or any Subsidiary in the Loan Documents as of the date such representations and warranties
are made or deemed made, and none of the statements contained in any exhibit, report, statement or
certificate furnished by or on behalf of the Company or any Subsidiary in connection with the Loan
Documents (including the offering and disclosure materials delivered by or on behalf of the Company
to the Lenders prior to the Closing Date) taken as a whole, contains any untrue statement of a
material fact or omits any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are made, not misleading as
of the time when made or delivered. All projections and pro forma financial information contained
in any materials furnished by or on behalf of the Company or any of its Subsidiaries to any Lender
are based on good faith estimates and assumptions by the management of the Company or the
applicable Subsidiary, it being recognized by the Lenders, however, that projections as to future
events are not to be viewed as fact and that actual results during the period or periods covered by
any such projections may differ from the projected results and that the differences may be
material.



VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation
shall remain unpaid, unless the Required Lenders waive compliance in writing:



     A. Financial Statements. The Company shall deliver to the Administrative Agent,
and upon receipt thereof the Administrative Agent shall furnish to each Lender:



     1. as soon as available, but not later than 90 days after the end of each fiscal
year, commencing with the fiscal year ending December 31, 2011, a copy of the audited consolidated
balance sheet of the Company and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such year,
setting forth in each case in comparative form the figures for the previous fiscal year, and
accompanied by the opinion of Deloitte & Touche LLP or another nationally recognized independent
public accounting firm (“Independent Auditor”) which opinion shall state that such
consolidated financial statements present fairly the financial position for the periods indicated
in conformity with GAAP applied on a consistent basis. Such opinion shall not be qualified or
limited, in either case, because of a restricted or limited examination by the Independent Auditor
of any material portion of the Company’s or any Subsidiary’s records and shall be delivered to the
Administrative Agent pursuant to a reliance letter between the Administrative Agent and Lenders and
such Independent Auditor in form and substance satisfactory to the Administrative Agent;



     2. as soon as available, but not later than 45 days after the end of each of the
first three fiscal quarters of each fiscal year, commencing with the fiscal quarter ending June 30,
2011, a copy of the unaudited consolidated balance sheet of the Company and its Subsidiaries as of
the end of such quarter and the related consolidated statements of income for such quarter and the
year to date period then ended, shareholders’ equity and cash flows for the period commencing on
the first day of the fiscal year and ending on the last day of such quarter, and certified by a
Responsible Officer as fairly presenting, in accordance with GAAP (subject to ordinary, good faith
year-end audit adjustments), the financial position and the results of operations of the Company
and the Subsidiaries;



Page 53









 





     3. promptly when available and in any event within 45 days after the close of
each fiscal year commencing with the fiscal year ending December 31, 2011, a business and financial
plan, including projections of consolidated cash flows and statements of income, for the Company
and its Subsidiaries for the then current fiscal year, setting forth such consolidated projections
on a quarter-by-quarter basis and including a projected year-end consolidated balance sheet;
and



     4. promptly upon receipt thereof, copies of all statements as to the material
weaknesses of accounting controls submitted to the Company by independent public accountants in
connection with each annual or interim audit made by such accountants of the financial statements
of the Company or any of its Subsidiaries.



     To the extent included therein, the information required to be delivered pursuant to this
Section 6.01 may be delivered by delivery of the financial statements and reports required
to be delivered pursuant to Section 6.02(c).



     B. Certificates; Other Information. The Company shall furnish to the
Administrative Agent, and upon receipt thereof the Administrative Agent shall furnish to each
Lender:



     1. concurrently with the delivery of the financial statements referred to in
Section 6.01(a), a certificate of the Independent Auditor stating that in making the
examination necessary therefor no knowledge was obtained of any Default or Event of Default under
Section 7.15, except as specified in such certificate;



     2. concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), a Compliance Certificate executed by a Responsible
Officer;



     3. promptly, copies (which may be in electronic format) of all financial
statements and reports that the Company sends to its shareholders, and copies of all financial
statements and regular, periodical or special reports (including Forms 10-K, 10-Q and 8-K but not
including Forms 3, 4 or 5) that the Company or any Subsidiary may make to, or file with, the SEC;
and



     4. promptly, such additional information regarding the business, financial or
corporate affairs of the Company or any Subsidiary as the Administrative Agent, at the request of
any Lender, may from time to time reasonably request.



     C. Notices. The Company shall promptly notify the Administrative Agent and each
Lender:



     1. of the occurrence of any Default or Event of Default, upon a Responsible
Officer becoming aware thereof;



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



     3. of the occurrence of any of the following events affecting the Company or any
ERISA Affiliate (but in no event more than 30 days after such event), and deliver to the
Administrative Agent and each Lender a copy of any notice with respect to such event that is filed
with a Governmental Authority and any notice delivered by a Governmental Authority to the Company
or any ERISA Affiliate with respect to such event:




     an ERISA Event or Events which could reasonably be expected to result in liability
of any Borrower in an aggregate amount in excess of $25,000,000; or




     the Unfunded Pension Liability among all Pension Plans is reasonably expected to
exceed $25,000,000.



     4. of any material change in accounting policies or financial reporting practices
by the Company or any of its consolidated Subsidiaries; and



Page 54









 





     5. of any announcement by Moody’s, S&P or Fitch of any change in a Debt
Rating.



     Each notice under this Section shall be accompanied by a written statement by a Responsible
Officer setting forth details of the occurrence referred to therein, and stating what action the
Company or any affected Subsidiary proposes to take with respect thereto and at what time (although
the failure to take any such action shall not constitute a Default or Event of Default under this
Agreement). Each notice under Section 6.03(a) shall describe each Default or Event of
Default which has occurred or which is expected to occur.



     D. Preservation of Corporate Existence, Etc. Each Borrower shall, and shall
cause each Material Subsidiary to:



     1. preserve and maintain in full force and effect its corporate existence and
good standing under the laws of its state or jurisdiction of incorporation, except as otherwise
permitted by this Agreement;



     2. preserve and maintain in full force and effect all governmental rights,
privileges, qualifications, permits, licenses and franchises necessary or desirable in the normal
conduct of its business except in connection with transactions permitted by Section 7.03
and sales of assets permitted by Section 7.02 and except for any of the foregoing the
expiration or termination of which could not reasonably be expected to have a Material Adverse
Effect;



     3. use reasonable efforts, in the ordinary course of business, to preserve its
business organization; and



     4. preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to have a Material
Adverse Effect.



     E. Maintenance of Property. Each Borrower shall maintain, and shall cause each
Material Subsidiary to maintain, and preserve all its property which is used in its business in
good working order and condition, ordinary wear and tear excepted except where the failure to so
maintain or preserve could not reasonably be expected to have a Material Adverse Effect and except
as permitted by Section 7.02.



     F. Insurance. The Company shall maintain, and shall cause each Subsidiary to
maintain, with financially sound and reputable independent insurers, insurance with respect to its
properties and business against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons, provided that the Company and its
Subsidiaries may self-insure against such risks and in such amounts as is usually self-insured by
companies engaged in similar businesses and owning similar properties in the same general areas in
which the Company or such Subsidiary operates.



     G. Payment of Tax Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable, all tax liabilities,
assessments and governmental charges or levies upon it or its properties or assets, unless the same
are being contested in good faith by appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company or such Subsidiary.



     H. Compliance with Laws. The Company shall comply, and shall cause each
Subsidiary to comply, in all material respects with all Requirements of Law of any Governmental
Authority having jurisdiction over it or its business (including the Federal Fair Labor Standards
Act), except where the failure to so comply could not reasonably be expected to have a Material
Adverse Effect.



     I. Compliance with ERISA. Each Borrower shall, and shall cause each of its ERISA
Affiliates to: (a) maintain each Plan in compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state law; (b) cause each Plan which is
qualified under Section 401(a) of the Code to maintain such qualification; and (c) make all
required contributions to any Plan subject to Section 412 of the Code except, in the case of (a),
(b) and (c) above where such failure to maintain or contribute could not reasonably be expected to
result in liability of any Borrower in excess of $25,000,000 in the aggregate.



     J. Inspection of Property and Books and Records. The Company shall maintain and
shall cause each Subsidiary to maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters 



Page 55









 




involving the assets and business of the Company and such Subsidiary. The Company shall
permit, and shall cause each Subsidiary to permit, representatives and independent contractors of
the Administrative Agent or representatives of any Lender to visit and inspect any of their
respective properties, to examine their respective corporate, financial and operating records, and
make copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and, in the presence of the Company if the
Company shall so request, the Independent Auditor, all such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice to the
Company.




     K. Environmental Laws. The Company shall, and shall cause each Subsidiary to,
conduct its operations and keep and maintain its property in compliance with all Environmental
Laws, except where the failure to so comply could not reasonably be expected to have a Material
Adverse Effect.



     L. Use of Proceeds. Each Borrower shall use the proceeds of the Loans (i) to
refinance existing debt of the Company and its Subsidiaries and (ii) for working capital and other
general corporate purposes (including Acquisitions) not in contravention of any Requirement of Law
(including Regulations T, U and X of the FRB) or of any Loan Document.



VII.

NEGATIVE AND FINANCIAL COVENANTS




     So long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation
shall remain unpaid, unless the Required Lenders waive compliance in writing:



     A. Limitation on Liens. The Company shall not, and shall not suffer or permit
any Subsidiary to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien
upon or with respect to any part of its property, whether now owned or hereafter acquired, other
than the following (“Permitted Liens”):



     1. any Lien existing on property of the Company or any Subsidiary on the Closing
Date and set forth in Schedule 7.01 securing Indebtedness outstanding on such date;



     2. any Lien created under any Loan Document;



     3. Liens for taxes, fees, assessments or other governmental charges which are not
delinquent or remain payable without penalty, or to the extent that non-payment thereof is
permitted by Section 6.07, provided that no notice of lien has been filed or recorded under
the Code;



     4. carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s
or other similar Liens arising in the ordinary course of business which are not delinquent for more
than 90 days or remain payable without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of
the property subject thereto;



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



     6. Liens on the property of the Company or its Subsidiary securing (i) the
non-delinquent performance of bids, trade contracts (other than for borrowed money), leases,
statutory obligations, (ii) contingent obligations on surety and appeal bonds, and (iii) other
non-delinquent obligations of a like nature; in each case, incurred in the ordinary course of
business and treating as non-delinquent any delinquency which is being contested in good faith and
by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale
of the property subject thereto;



     7. Liens consisting of judgment or judicial attachment liens with respect to
judgments which do not constitute an Event of Default and in the aggregate do not exceed
$25,000,000;



     8. easements, rights-of-way, restrictions and other similar encumbrances which,
in the aggregate, are not substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or interfere with the ordinary conduct of the
businesses of the Company and its Subsidiaries;



Page 56









 





     9. Liens on assets of Persons which become Subsidiaries after the date of this
Agreement, provided, however, that such Liens existed at the time the respective
Persons became Subsidiaries and were not created in anticipation thereof and such liens do not
extend to any other property of any Borrower (except proceeds of such property, and in the case of
Liens on real estate or equipment, items which become fixtures on such real estate or are
accessions to such equipment pursuant to the terms of the original agreement governing such
Lien);



     10. purchase money security interests on any property acquired or held by the
Company or its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of acquiring such property;
provided that (i) any such Lien attaches to such property concurrently with or
within 90 days after the acquisition thereof, (ii) such Lien attaches solely to the property so
acquired in such transaction and the proceeds thereof, (iii) the principal amount of the debt
secured thereby does not exceed 100% of the cost of such property, and (iv) the principal amount of
the Indebtedness secured by any and all such purchase money security interests, together with
Indebtedness permitted under Section 7.05(d) and Attributable Indebtedness in respect of
Sale and Leaseback Transactions outstanding and permitted by Section 7.13(a), shall not at
any time exceed $50,000,000;



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



     12. Liens consisting of pledges of cash collateral or government securities, to
secure on a mark-to-market basis Permitted Swap Obligations (including customary netting
arrangements therein) only, provided that (i) the counterparty to any Swap Contract relating to
such Permitted Swap Obligations is under a similar requirement to deliver similar collateral from
time to time to the Company or the Subsidiary party thereto on a mark-to-market basis; and (ii) the
aggregate value of such collateral so pledged by the Company and the Subsidiaries together in favor
of any counterparty does not at any time exceed $15,000,000;



     13. Liens securing reimbursement obligations for letters of credit which encumber
only goods and rights related thereto, or documents of title covering goods, which are purchased in
transactions for which such letters of credit are issued; 



     14. any extension, renewal or substitution of or for any of the foregoing Liens;
provided that (i) the Indebtedness or other obligation or liability secured by the applicable Lien
shall not exceed the Indebtedness or other obligation or liability existing immediately prior to
such extension, renewal or substitution and (ii) the Lien securing such Indebtedness or other
obligation or liability shall be limited to the property which, immediately prior to such
extension, renewal or substitution, secured such Indebtedness or other obligation or liability;
and



     15. other Liens securing obligations which, together with the amount of
Attributable Indebtedness in respect of Sale and Leaseback Transactions outstanding and permitted
by Section 7.13(b), do not exceed $50,000,000 in the aggregate at any one time
outstanding.



     B. Disposition of Assets. The Company shall not, and shall not suffer or permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise
dispose of (collectively, a “Disposition”) (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or without recourse) or enter into any
agreement to do any of the foregoing, except:



     1. Dispositions of inventory, or used, worn-out, obsolete or surplus equipment or
intellectual property, all in the ordinary course of business;



     2. Dispositions of equipment and other fixed assets to the extent that such
equipment or other fixed assets is exchanged for credit against the purchase price of similar
replacement equipment or other fixed assets, or the proceeds of such sale are reasonably promptly
applied to the purchase price of such replacement equipment or other fixed assets; 



     3. Dispositions of Accounts Receivable pursuant to a Permitted Receivables
Purchase Facility;



Page 57









 





     4. Disposition of assets 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 in the ordinary course of business; 



     5. Dispositions of assets between and among the Company and its Wholly-Owned
Subsidiaries that are Domestic Subsidiaries, and Dispositions of assets between and among
Wholly-Owned Subsidiaries of the Company that are Foreign Subsidiaries; provided that no
Designated Borrower may make a Disposition of assets to a Foreign Subsidiary unless such Foreign
Subsidiary (i) is organized in the jurisdiction of organization of such Designated Borrower or (ii)
is either a Wholly-Owned Subsidiary of such Designated Borrower or such Designated Borrower is a
Wholly-Owned Subsidiary of such Foreign Subsidiary; 



     6. sales of Accounts Receivable by Foreign Subsidiaries which do not provide
directly or indirectly for recourse for credit losses against the seller of such Accounts
Receivable or against any of such seller’s Affiliates and which are done on customary market terms
or on other terms satisfactory to the Administrative Agent; and



     7. Dispositions not otherwise permitted hereunder which are made for fair market
value; provided, that (i) at the time of any disposition, no Event of Default shall exist
or shall result from such disposition, (ii) the aggregate sales price from such disposition shall
be paid in cash (provided, that the Company may accept promissory notes in an aggregate principal
amount outstanding at any time not to exceed $15,000,000), and (iii) the aggregate value of all
assets so sold by the Company and its Subsidiaries pursuant to this subsection (g), together, shall
not exceed in any fiscal year, 10% of Consolidated Total Assets as of the end of the most recent
fiscal year (but excluding, for purposes of calculation of such 10% amount, the assets of any
operating business sold as a whole in compliance with the proviso at the end of this subsection),
provided further that the sale by the Company or any Subsidiary of one or more
operating business in one year which, in the aggregate, accounts for more than 10% of EBITDA of the
Company as of the most recently ended fiscal year shall require the consent of the Required Lenders
and the Company, on a pro forma basis calculated as of the last day of the most recently completed
fiscal quarter, shall be in compliance with the Leverage Ratio as of the date of such
Disposition.



     C. Consolidations and Mergers. The Company shall not, and shall not suffer or
permit any Subsidiary to, merge or consolidate with or into any Person, except:



     1. any Subsidiary may merge (i) with the Company, provided that the Company shall
be the continuing or surviving corporation, (ii) with any one or more Subsidiaries (other than a
Subsidiary that is a Borrower), provided that if any transaction shall be between a Subsidiary and
a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the continuing or surviving
corporation, or (iii) with a Subsidiary that is a Borrower, provided that a Borrower shall be the
continuing or surviving corporation; and 



     2. any Subsidiary (other than a Subsidiary that is a Borrower) may sell all or
substantially all of its assets (upon voluntary liquidation or otherwise), to the Company or
another Wholly-Owned Subsidiary or as otherwise permitted by Section 7.02; provided
that no Designated Borrower may engage in any such transaction other than to the Company or another
Designated Borrower.


Any Disposition of assets which would be permitted by Section 7.02 or any Investment
permitted by Section 7.04 may also be done via merger or consolidation and such merger or
consolidation (which results solely in a Disposition otherwise permitted by Section 7.02 or
Investment otherwise permitted by Section 7.04, as the case may be) shall be permitted
pursuant to this Section 7.03.




     D. Loans and Investments. The Company shall not purchase or acquire, or suffer
or permit any Subsidiary to purchase or acquire, or make any commitment therefor, any capital
stock, equity interest, or any obligations or other securities of, or any interest in, any Person,
or make or commit to make (unless contingent upon a waiver or amendment of the terms hereof) any
Acquisitions, or make or commit to make any advance, loan, extension of credit or capital
contribution to or any other investment in, any Person including any Affiliate of the Company
(together, “Investments”), except for:



     1. Investments held by the Company or Subsidiary in the form of cash or cash
equivalents;



     2. extensions of credit in the nature of accounts receivable or notes receivable
arising from the sale or lease of goods or services in the ordinary course of business;



Page 58









 





     3. extensions of credit by the Company or its Subsidiaries to their employees in
the ordinary course of business for travel, relocation and related expenses;



     4. existing Investments in Subsidiaries and the other Investments identified on
Schedule 7.04 (in each case, as such Investments may be adjusted due to appreciation,
repayment of principal, payment of interest, return of capital and similar circumstances);



     5. additional Investments in any Subsidiary (other than an Investment
constituting an Acquisition which shall be governed by subsection (f) below);



     6. Investments constituting a Permitted Acquisition;



     7. Investments constituting Permitted Swap Obligations or payments or advances
under Swap Contracts relating to Permitted Swap Obligations;



     8. Investments held by any Subsidiary of the Company in any of its customers or
suppliers which are received as distributions in bankruptcy proceedings or as negotiated
settlements for obligations incurred to it by such customer for the purchase of goods manufactured
or services provided by it;



     9. Investments by way of stock or similar ownership interests of 50% or less in
any Person in an aggregate amount not to exceed $75,000,000 at any one time outstanding;



     10. Investments by way of promissory notes received in connection with a
Disposition permitted by Section 7.02(g);



     11. Investments in a Receivables Subsidiary prior to the occurrence and
continuation of an Event of Default which in the judgment of the Company are reasonably necessary
in connection with any Permitted Receivables Purchase Facility; and



     12. additional investments of a nature not contemplated by the foregoing
subsections (a) through (k) not to exceed $75,000,000 in the aggregate at any time outstanding,
provided, however, that this clause shall not be construed to permit additional investments in
ownership interests of 50% or less in any Person which would not be permitted by subsection (i)
above.



     E. Limitation on Indebtedness. The Company shall not, and shall not suffer or
permit any Subsidiary to, create, incur, assume, suffer to exist, or otherwise become or remain
directly or indirectly liable with respect to, any Indebtedness, except:



     1. Indebtedness incurred pursuant to this Agreement;



     2. Indebtedness consisting of Contingent Obligations permitted pursuant to
Section 7.07;



     3. Indebtedness existing on the Closing Date and set forth in Schedule
7.05, and any Refinancing Indebtedness with respect thereto;



     4. Indebtedness secured by Liens permitted by Section 7.01(j) in an
aggregate amount outstanding at any time not to exceed $50,000,000;



     5. Intercompany Indebtedness to the extent permitted by Section 7.04;
provided, however, that in the event of any subsequent issuance or transfer of any
capital stock which results in the holder of such Indebtedness ceasing to be a Subsidiary of the
Company or any subsequent transfer of such Indebtedness (other than to the Company or any of its
Subsidiaries) such Indebtedness shall be required to be permitted under another clause of this
Section 7.05; provided, further, however, that in the case of
Intercompany Indebtedness consisting of a loan or advance to the Company, each such loan or advance
shall be subordinated to the indefeasible payment in full of all of the Company’s obligations
pursuant to this Agreement and the other Loan Documents;



     6. Subordinated Debt of the Company;



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     7. Indebtedness of any Subsidiary and unsecured guarantees thereof by the
Company, provided that the aggregate amount of such Indebtedness under this subsection (g),
together with Indebtedness consisting of Contingent Obligations of any Subsidiary which are
outstanding and permitted solely by Section 7.07(h), does not exceed at any time
outstanding, 15% of Consolidated Total Assets;



     8. Unsecured Indebtedness of the Company, as long as the Company would remain in
compliance with Section 7.15 after giving pro forma effect to the incurrence of such
Indebtedness; and



     9. Receivables Facility Attributed Indebtedness. 



     F. Transactions with Affiliates. The Company will not, and will not permit any
of its Subsidiaries to, enter into, or cause, suffer or permit to exist:



     1. any arrangement or contract with any of its other Affiliates of a nature
customarily entered into by Persons which are Affiliates of each other for tax or financial
reporting purposes (including, without limitation, management or similar contracts or arrangements
relating to the allocation of revenues, taxes and expenses or otherwise) unless such arrangement or
contract is fair and equitable to the Company or such Subsidiary; or



     2. any other transaction, arrangement or contract with any of its other
Affiliates which would not be entered into by a prudent Person in the position of the Company or
such Subsidiary with, or which is on terms which are less favorable than are obtainable from, any
Person which is not one of its Affiliates;


provided, however, that nothing in this Section shall be construed to restrict the
Company from paying reasonable and customary regular fees to directors of the Company who are not
employees of the Company.




     G. Contingent Obligations. The Company shall not, and shall not suffer or permit
any Subsidiary to, create, incur, assume or suffer to exist any Contingent Obligations except:



     1. endorsements for collection or deposit in the ordinary course of
business;



     2. Permitted Swap Obligations;



     3. Contingent Obligations of the Company and its Subsidiaries existing as of the
Closing Date and listed in Schedule 7.07;



     4. Contingent Obligations with respect to Surety Instruments incurred in the
ordinary course of business;



     5. Guaranty Obligations of the Company with respect to any Indebtedness permitted
pursuant to this Agreement;



     6. Guaranty Obligations of the Company and its Subsidiaries consisting of payment
obligations incurred in connection with a Permitted Acquisition;



     7. Guaranty Obligations of the Company consisting of a guarantee by the Company
of obligations of a Subsidiary or by a Subsidiary of obligations of its Subsidiary under any lease
or other agreement otherwise permitted hereunder (including customary performance guarantees under
a Permitted Receivables Purchase Facility) or entered into in the ordinary course of business and,
in each case, not constituting Indebtedness; and



     8. in addition to other Contingent Obligations permitted hereunder, Contingent
Obligations which do not exceed $25,000,000 in the aggregate at any one time outstanding, provided
that to the extent such Contingent Obligations constitute Indebtedness of a Subsidiary, such
Contingent Obligations, together with Indebtedness of all Subsidiaries of the Company outstanding
and permitted solely under Section 7.05(g), shall not exceed 15% of Consolidated Net
Worth.



     H. Restricted Payments. The Company shall not, and shall not suffer or permit
any Subsidiary to, (i) declare or make any dividend payment or other distribution of assets,
properties, cash, rights, 



Page 60









 




obligations or securities on account of any shares of any class of its capital stock, or
purchase, redeem or otherwise acquire for value any shares of its capital stock or any warrants,
rights or options to acquire such shares, now or hereafter outstanding, (ii) prepay or repay any
principal of or make any payment of interest on, or redeem, or set aside any funds for the payment,
prepayment or redemption of, or purchase or otherwise acquire any interest in, any Subordinated
Debt or (iii) make any deposit for any of the foregoing purposes (each of (i), (ii) or (iii), a
“Restricted Payment”) if a Default or Event of Default exists or would exist after giving
effect thereto.




     I. ERISA. The Company shall not, and shall not suffer or permit any of its ERISA
Affiliates to: (a) engage in a prohibited transaction , violate the fiduciary responsibility rules
or violate any other ERISA rules with respect to any Plan which has resulted or could reasonably be
expected to result in liability of the Company in an aggregate amount in excess of $25,000,000; or
(b) engage in a transaction that could be subject to Section 4069 or 4212(c) of ERISA and which
could reasonably be expected to result in liability of the Company in excess of $25,000,000.



     J. Change in Business. The Company shall not, and shall not suffer or permit any
Subsidiary to, engage in any material line of business substantially different from those lines of
business carried on by the Company and its Subsidiaries on the date hereof.



     K. Accounting Changes. The Company shall not, and shall not suffer or permit any
Subsidiary to, make any significant change in accounting treatment or reporting practices, except
as required by GAAP, or change the fiscal year of the Company.



     L. Modifications, etc. of Subordinated Debt and Related Documents. No Borrower
will consent to any amendment of any subordination or sinking fund provisions or terms of required
repayment or redemption contained in or applicable to any Subordinated Debt or any guaranty thereof
(except any extension in time of any such sinking fund provision or term of required prepayment or
redemption).



     M. Sale-Leasebacks. The Company shall not, nor shall it permit any of its
Subsidiaries to, directly or indirectly, lease any property as lessee in connection with a Sale and
Leaseback Transaction entered into after the Closing Date, except for (a) Sale and Leaseback
Transactions entered into within 90 days after acquiring the applicable property where the
Attributable Indebtedness with respect to such Sale and Leaseback Transaction and all other
outstanding Sale and Leaseback Transactions permitted pursuant to this subsection (a) does not,
together with Indebtedness permitted under Section 7.05(d), exceed $50,000,000, and (b)
other Sale and Leaseback Transactions where the Attributable Indebtedness, together with
Indebtedness secured by Liens permitted by Section 7.01(o), does not exceed
$50,000,000.



     N. No Negative Pledges; Subsidiary Payments. The Company will not, and will not
permit any of its Subsidiaries (other than Foreign Subsidiaries in connection with the financings
permitted by Section 7.05(g)) to enter into or suffer to exist any agreement (excepting
this Agreement and any instrument or other Loan Document executed pursuant hereto, the Term Loan
Credit Agreement and any instrument or other loan document executed pursuant thereto, and any
agreement governing Indebtedness permitted to be incurred under Section 7.05(i)) (a)
prohibiting the creation or assumption of any security interest upon its properties or assets,
whether now owned or hereafter acquired or (b) which would restrict the ability of any Subsidiary
to pay or make dividends or distributions, in cash or kind, or to make loans, advances or other
payments of whatsoever nature, or to make transfers or dispositions of all or part of its assets,
in each case to the Company; provided, however, in the case of a consensual Lien on
assets or property that is permitted pursuant to Section 7.01, the Lien holder may, solely
with respect of the assets or property to which such Lien attaches, contract for and receive a
negative pledge with respect thereto and the proceeds and products thereof.



     O. Financial Covenants. The Company shall not:



     1. Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the
end of any fiscal quarter of the Company to be less than 3.00.



     2. Leverage Ratio. Permit the Leverage Ratio as of the end of any fiscal
quarter of the Company to be greater than 3.25.



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VIII.

EVENTS OF DEFAULT




     A. Event of Default. Any of the following shall constitute an “Event of
Default”:



     1. Non-Payment. Any Borrower fails to pay, (i) when and as required to
be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within five (5)
days after the same becomes due, any other interest, fee or any other amount payable hereunder or
under any other Loan Document; or



     2. Representation or Warranty. Any representation or warranty by any
Borrower made or deemed made herein, in any other Loan Document, or which is contained in any
certificate, document or financial or other statement by the Company, any Subsidiary, or any
Responsible Officer, furnished at any time under this Agreement, or in or under any other Loan
Document, is incorrect in any material respect on or as of the date made or deemed made; or



     3. Specific Defaults. The Company or any other applicable Borrower fails
to perform or observe any term, covenant or agreement (i) contained in Section 7.01,
7.04, 7.05 or 7.07 and such failure continues unremedied for ten Business
Days or (ii) contained in any of Section 6.03(a) or 6.12 or in any other provision
of Article VII; or



     4. Other Defaults. The Company or any Subsidiary party thereto fails to
perform or observe any other term or covenant contained in this Agreement or any other Loan
Document, and such default shall continue unremedied for a period of 20 days after the date upon
which written notice thereof is given to the Company by the Administrative Agent or any Lender;
or



     5. Cross-Default. 




     The Company or any Subsidiary (A) fails to make any payment in respect of any
Indebtedness or Contingent Obligation (other than in respect of Swap Contracts), having an
aggregate principal amount (including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated credit arrangement) of more
than $25,000,000 when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the applicable grace or notice
period, if any, specified in the relevant document on the date of such failure; or (B) fails
to perform or observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such Indebtedness or
Contingent Obligation, and such failure continues after the applicable grace or notice
period, if any, specified in the relevant document on the date of such failure if the effect
of such failure, event or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness
to be declared to be due and payable prior to its stated maturity, or such Contingent
Obligation to become payable or cash collateral in respect thereof to be demanded; 




     There occurs under any Swap Contract an Early Termination Date (as defined in such
Swap Contract) or similar event resulting from (A) any event of default under such Swap
Contract as to which the Company or any Subsidiary is the Defaulting Party (as defined in
such Swap Contract) or (B) any Termination Event (as so defined) as to which the Company or
any Subsidiary is an Affected Party (as so defined), and, in either event, the Swap
Termination Value owed by the Company or such Subsidiary as a result thereof is greater than
$25,000,000 in the aggregate; 




     There occurs an “Event of Default” under the Term Loan Credit Agreement (as defined
therein); or



     6. Insolvency; Voluntary Proceedings. Any Borrower or any Material
Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable grace periods, if any,
whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its business in the
ordinary course; (iii) commences any Insolvency Proceeding with respect to itself; or (iv) takes
any action to effectuate or authorize any of the foregoing; or



Page 62









 





     7. Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is
commenced or filed against any Borrower or any Material Subsidiary, or any writ, judgment, warrant
of attachment, execution or similar process, is issued or levied against a substantial part of any
Borrower’s or any Material Subsidiary’s properties, and any such proceeding or petition shall not
be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not
be released, vacated or fully bonded within 60 days after commencement, filing or levy; (ii) any
Borrower or any Material Subsidiary admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is ordered in
any Insolvency Proceeding; or (iii) any Borrower or any Material Subsidiary acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or
agent therefor), or other similar Person for itself or a substantial portion of its property or
business; or



     8. ERISA. (i) An ERISA Event or Events shall occur with respect to one
or more Pension Plans or Multiemployer Plans which has resulted in liability of any Borrower under
Title IV of ERISA to such plans or the PBGC in an aggregate amount in excess of $25,000,000; or
(ii) the Company or any ERISA Affiliate shall fail to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $25,000,000;
or



     9. Monetary Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against any Borrower or any
Subsidiary of the Company involving in the aggregate a liability (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute coverage) as to any
single or related series of transactions, incidents or conditions, of $25,000,000 or more, and the
same shall remain unsatisfied, unvacated and unstayed pending appeal for a period of 10 days after
the entry thereof; or



     10. Change of Control. There occurs any Change of Control; or



     11. Invalidity of Subordination Provisions. The subordination provisions
of any agreement or instrument governing any Subordinated Debt is for any reason revoked or
invalidated, or otherwise cease to be in full force and effect, any Person contests in any manner
the validity or enforceability thereof or denies that it has any further liability or obligation
thereunder, or the Indebtedness hereunder is for any reason subordinated or does not have the
priority contemplated by this Agreement or such subordination provisions; or



     12. Invalidity of Loan Documents. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect in
any material respect which impairs the Administrative Agent’s rights and remedies hereunder or
releases any Borrower from any of its material obligations hereunder; or any Borrower or any other
Person contests in any manner the validity or enforceability of any Loan Document; or any Borrower
denies that it has any or further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any Loan Document.



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



     1. declare the commitment of each Lender to make Loans and any obligation of the
L/C Issuers to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;



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



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



     4. exercise on behalf of itself, the Lenders and the L/C Issuers all rights and
remedies available to it, the Lenders and the L/C Issuers under the Loan Documents;



Page 63









 




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




     C. Application of Funds. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and payable and
the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the Obligations shall, subject
to the provisions of Sections 2.19 and 2.20, be applied by the Administrative Agent
in the following order:



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



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders and the L/C Issuers
(including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuers
(including fees and time charges for attorneys who may be employees of any Lender or L/C Issuer)
and amounts payable under Article III), ratably among them in proportion to the amounts
described in this clause Second payable to them;



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



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



     Fifth, to the Administrative Agent for the account of the L/C Issuers, to Cash
Collateralize that portion of L/C Obligations composed of the aggregate undrawn amount of Letters
of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections
2.04 and 2.19; and



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


Subject to Sections 2.04(c) and 2.19, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth
above.




IX.

THE AGENT




     A. Appointment and Authority. Each of the Lenders and each L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuers, and no Borrower shall have rights as a third party beneficiary of any of such
provisions except as specifically provided in this Article.



     B. Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from, lend money to, 



Page 64









 




act as the financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Company or any Subsidiary or other Affiliate thereof as if such
Person were not the Administrative Agent hereunder and without any duty to account therefor to the
Lenders.




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



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



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



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



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by a Borrower, a Lender or an L/C Issuer.



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



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



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



Page 65









 




connection with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.




     F. Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders, the L/C Issuers and the Company. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuers, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Company and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender and each L/C Issuer directly, until such time as the Required Lenders appoint
a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the retiring Administrative Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this Article and Section
11.04 shall continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as Administrative
Agent.



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



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



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



X.

CONTINUING GUARANTY




     A. Guaranty. The Company hereby absolutely and unconditionally guarantees, as a
guaranty of payment and performance and not merely as a guaranty of collection, prompt payment in
full when due, whether at stated maturity, by required prepayment, upon acceleration, demand or
otherwise, and at all times thereafter, of any and all of the Obligations, whether for principal,
interest, premiums, fees, indemnities, damages, costs, expenses or otherwise, of the Designated
Borrowers to the Administrative Agent 



Page 66









 




and the Lenders, and whether arising hereunder or under any other Loan Document, including
all renewals, extensions, amendments, refinancings and other modifications thereof and all costs,
attorneys’ fees and expenses incurred by the Administrative Agent and the Lenders in connection
with the collection or enforcement thereof (the “Designated Borrower Obligations”). The
Administrative Agent’s books and records showing the amount of the Designated Borrower Obligations
shall be admissible in evidence in any action or proceeding, and shall be binding upon the Company,
and conclusive for the purpose of establishing the amount of the Designated Borrower Obligations.
This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of
the Designated Borrower Obligations or any instrument or agreement evidencing any Designated
Borrower Obligations, or by the existence, validity, enforceability, perfection, non-perfection or
extent of any collateral therefor, or by any fact or circumstance relating to the Designated
Borrower Obligations which might otherwise constitute a defense to the obligations of the Company
under this Guaranty, and the Company hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to any or all of the foregoing.




     B. Rights of Lenders. The Company consents and agrees that the Administrative
Agent and the Lenders may, at any time and from time to time, without notice or demand, and without
affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew,
compromise, discharge, accelerate or otherwise change the time for payment or the terms of the
Designated Borrower Obligations or any part thereof; and (b) release or substitute one or more of
any endorsers or other guarantors of any of the Designated Borrower Obligations. Without limiting
the generality of the foregoing, the Company consents to the taking of, or failure to take, any
action which might in any manner or to any extent vary the risks of the Company under this Guaranty
or which, but for this provision, might operate as a discharge of the Company.



     C. Certain Waivers. The Company waives (a) any defense arising by reason of any
disability or other defense of any Designated Borrower or any other guarantor, or the cessation
from any cause whatsoever (including any act or omission of the Administrative Agent or any Lender)
of the liability of any Designated Borrower; (b) any defense based on any claim that the Company’s
obligations exceed or are more burdensome than those of the Designated Borrowers; (c) the benefit
of any statute of limitations affecting any Designated Borrower’s liability hereunder; (d) any
right to proceed against any Designated Borrower, proceed against or exhaust any security for the
Designated Borrower Obligations, or pursue any other remedy in the power of the Administrative
Agent or any Lender whatsoever; (e) any benefit of and any right to participate in any security now
or hereafter held by the Administrative Agent or any Lender; and (f) to the fullest extent
permitted by law, any and all other defenses or benefits that may be derived from or afforded by
applicable law limiting the liability of or exonerating guarantors or sureties. The Company
expressly waives all setoffs, deductions and counterclaims and all presentments, demands for
payment or performance, notices of acceleration, notice of intent to accelerate, notices of
nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the Designated Borrower
Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or
incurrence of new or additional Designated Borrower Obligations. 



     D. Obligations Independent. The obligations of the Company hereunder are those
of primary obligor, and not merely as surety, and are independent of the Designated Borrower
Obligations and the obligations of any other guarantor, and a separate action may be brought
against the Company to enforce this Guaranty whether or not any Designated Borrower or any other
person or entity is joined as a party.



     E. Subrogation. The Company shall not exercise any right of subrogation,
contribution, indemnity, reimbursement or similar rights with respect to any payments it makes
under this Guaranty until all of the Designated Borrower Obligations and any amounts payable under
this Guaranty have been indefeasibly paid and performed in full and the Aggregate Commitments are
terminated. If any amounts are paid to the Company in violation of the foregoing limitation, then
such amounts shall be held in trust for the benefit of the Administrative Agent and the Lenders and
shall forthwith be paid to the Administrative Agent for the benefit of itself and the Lenders to
reduce the amount of the Designated Borrower Obligations, whether matured or unmatured.



     F. Termination; Reinstatement. This Guaranty is a continuing and irrevocable
guaranty of all Designated Borrower Obligations now or hereafter existing and shall remain in full
force and effect until all Designated Borrower Obligations and any other amounts payable under this
Guaranty are indefeasibly paid in full in cash and the Commitments with respect to the Designated
Borrower Obligations are terminated. Notwithstanding the foregoing, this Guaranty shall continue
in full force and effect or be revived, as the case may be, if any payment by or on behalf of any
Designated Borrower or the Company is 



Page 67









 




made, or the Administrative Agent or any of the Lenders exercises its right of setoff, in
respect of the Designated Borrower Obligations and such payment or the proceeds of such setoff or
any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the Administrative Agent or any
of the Lenders in their discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment
had not been made or such setoff had not occurred and whether or not the Administrative Agent or
the Lenders are in possession of or have released this Guaranty and regardless of any prior
revocation, rescission, termination or reduction. The obligations of the Company under this
paragraph shall survive termination of this Guaranty.




     G. Subordination. The Company hereby subordinates the payment of all obligations
and indebtedness of any Designated Borrower owing to the Company, whether now existing or hereafter
arising, including but not limited to any obligation of any Designated Borrower to the Company as
subrogee of the Administrative Agent and the Lenders or resulting from the Company’s performance
under this Guaranty, to the indefeasible payment in full in cash of all Designated Borrower
Obligations; provided that, unless and until an Event of Default under Section 8.01(a),
(f) or (g) has occurred and is continuing, the Company shall be entitled to, and shall not
be prohibited by this Section 10.07 from, collecting and receiving any payment or other
distribution on account of any such obligations and indebtedness owing to the Company. If the
Administrative Agent so requests, any such obligation or indebtedness of any Designated Borrower to
the Company shall be enforced and performance received by the Company as trustee for the
Administrative Agent and the Lenders and the proceeds thereof shall be paid over to the
Administrative Agent for the benefit of itself and the Lenders on account of the Designated
Borrower Obligations, but without reducing or affecting in any manner the liability of the Company
under this Guaranty.



     H. Stay of Acceleration. If acceleration of the time for payment of any of the
Designated Borrower Obligations is stayed, in connection with any case commenced by or against the
Company or any Designated Borrower under any Debtor Relief Laws, or otherwise, all such amounts
shall nonetheless be payable by the Company immediately upon demand by the Administrative
Agent.



     I. Condition of Designated Borrower. The Company acknowledges and agrees that it
has the sole responsibility for, and has adequate means of, obtaining from each Designated Borrower
and any other guarantor such information concerning the financial condition, business and
operations of such Designated Borrower and any such other guarantor as the Company requires, and
that neither the Administrative Agent or any Lender has any duty, and the Company is not relying on
the Administrative Agent or any Lender at any time, to disclose to the Company any information
relating to the business, operations or financial condition of such Designated Borrower or any
other guarantor (the Company hereby waiving any duty on the part of the Administrative Agent and
the Lenders to disclose such information and any defense relating to the failure to provide the
same).



XI.

MISCELLANEOUS




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



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



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



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



     4. reduce the principal of, or the rate of interest specified herein on, any Loan
or L/C Borrowing, or (subject to subsection (v) of the second proviso to this Section
11.01) any fees or other amounts payable hereunder or under any other Loan Document without the
written consent of each Lender directly 



Page 68









 




affected thereby; provided, however, that only the consent of the Required
Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of
the Borrowers to pay interest or Letter of Credit Fees at the Default Rate;




     5. change Section 2.14 or Section 8.03 in a manner that would
alter the pro rata sharing of payments required thereby without the written consent of each
Lender;



     6. amend Section 1.06 or the definition of “Alternative Currency” without
the written consent of each Lender; 



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



     8. release all or substantially all of the value of the Guaranty of the Company,
without the written consent of each Lender; 


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect
the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect
the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; (iv) Section 11.06(h) may not be amended, waived or otherwise modified
without the consent of each Granting Lender all or any part of whose Loans are being funded by an
SPC at the time of such amendment, waiver or other modification; and (v) each Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder(and any amendment, waiver
or consent which by its terms requires the consent of all Lenders or each affected Lender may be
effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x)
the Commitment of any Defaulting Lender may not be increased or extended without the consent of
such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or
each affected Lender that by its terms affects any Defaulting Lender more adversely than other
affected Lenders shall require the consent of such Defaulting Lender.




     If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of such Lender and that has been approved by
the Required Lenders, the Borrower may replace such non-consenting Lender in accordance with
Section 11.13; provided that such amendment, waiver, consent or release can be
effected as a result of the assignment contemplated by such Section (together with all other such
assignments required by the Borrower to be made pursuant to this paragraph).



     B. Notices; Effectiveness; Electronic Communication.



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




     if to a Borrower, the Administrative Agent, an L/C Issuer or the Swing Line Lender,
to the address, telecopier number, electronic mail address or telephone number specified for
such Person on Schedule 11.02; and 




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


Notices and other communications sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices and other
communications sent by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have been given at


Page 69









 






the opening of business on the next business day for the recipient). Notices and other
communications delivered through electronic communications to the extent provided in subsection (b)
below, shall be effective as provided in such subsection (b).




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



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



     3. Change of Address, Etc. Each of the Company, the Administrative
Agent, any L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the other parties hereto. Each
other Lender may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the Company, the Administrative Agent, each L/C Issuer and
the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from
time to time to ensure that the Administrative Agent has on record (i) an effective address,
contact name, telephone number, telecopier number and electronic mail address to which notices and
other communications may be sent and (ii) accurate wire instructions for such Lender.



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



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



     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Borrowers or any of them shall be vested exclusively in, and all actions and proceedings at law in
connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuers; provided that the foregoing shall not prohibit (a) the Administrative
Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely
in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any L/C
Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit
(solely in its capacity as an L/C Issuer or Swing Line Lender, as the case may be) hereunder and
under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with
Section 11.08 (subject to the terms of Section 2.14), or (d) any Lender from filing
proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a
proceeding relative to any Borrower under any Debtor Relief Law; and provided,
further, that if at any time there is no Person acting as Administrative



Page 70









 




Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have
the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii)
in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and
subject to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce
any rights and remedies available to it and as authorized by the Required Lenders.




     D. Expenses; Indemnity; Damage Waiver.



     1. Costs and Expenses. The Borrowers shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection
with the syndication of the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by each L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or any L/C Issuer
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or any L/C Issuer), and shall pay all fees and time charges for attorneys who may be
employees of the Administrative Agent, any Lender or any L/C Issuer, in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of Credit.



     2. Indemnification by the Company. Whether or not the transactions
contemplated hereby are consummated, each Borrower, severally and not jointly, shall indemnify,
defend and hold harmless the Administrative Agent (and any sub-agent thereof), each Lender and each
L/C Issuer, and each Related Party of any of the foregoing Persons (each, an “Indemnified
Person”) from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, charges, expenses and disbursements (including all reasonable
out-of-pocket fees and disbursements of any law firm or other external counsel, the allocated costs
of internal legal services and all disbursements of internal counsel) of any kind or nature
whatsoever, including, without limitation, any civil penalty or fine assessed by OFAC, which may at
any time (including at any time following repayment of the Loans and the termination, resignation
or replacement of the Administrative Agent or replacement of any Lender) be imposed on, incurred by
or asserted against any such Person in any way relating to or arising out of this Agreement or any
Loan Document, or the transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any Insolvency Proceeding or appellate
proceeding) related to or arising out of this Agreement or the Loans or the use of the proceeds
thereof, or related to any Alternative Currency transactions entered into in connection herewith,
whether or not any Indemnified Person is a party thereto (all the foregoing, collectively, the
“Indemnified Liabilities”); provided, that the Borrowers shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities to the extent resulting
from the gross negligence or willful misconduct of such Indemnified Person. The agreements in this
Section shall survive the termination of the Commitments and payment of all other Obligations.



     3. Reimbursement by Lenders. To the extent that any Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), any L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent) or any L/C Issuer in its
capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or such L/C Issuer in connection with such capacity.
The obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.13(d).



     4. Unintended Recipients. Subject to Section 11.07, no
Indemnified Person referred to in subsection (b) above shall be liable for any damages arising from
the use by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the 



Page 71









 




transactions contemplated hereby or thereby, except to the extent such damages result from
the gross negligence or willful misconduct of such Indemnified Person.




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



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



     E. Payments Set Aside. To the extent that any payment by or on behalf of the
Borrowers is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative
Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds
of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect as if such payment
had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer
severally agrees to pay to the Administrative Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made at a rate per annum
equal to the applicable Overnight Rate from time to time in effect in the applicable currency of
such recovery or payment. The obligations of the Lenders and the L/C Issuers under clause (b) of
the preceding sentence shall survive the payment in full of the Obligations and the termination of
this Agreement.



     F. Successors and Assigns.



     1. Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that no Borrower may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (f) of this Section, or (iv) to an SPC in accordance with the
provisions of subsection (h) of this Section (and any other attempted assignment or transfer by any
party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.



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




     except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to
a Lender or an Affiliate of a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect,
the principal outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless
each of the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Company otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided that the Company shall be deemed to have consented to
any such assignment unless it shall object thereto by written notice to the Administrative
Agent within five Business Days after having received notice thereof; 



Page 72









 







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




     any assignment of a Commitment must be approved by the Administrative Agent, each
L/C Issuer and the Swing Line Lender (such approval not to be unreasonably withheld) unless
the Person that is the proposed assignee is itself a Lender (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee, but so long as such Person is not
Defaulting Lender); 




     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 the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire;


Notwithstanding the foregoing, in connection with any assignment of rights and obligations of any
Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to
the other conditions thereto set forth herein, the parties to the assignment shall make such
additional payments to the Administrative Agent in an aggregate amount sufficient, upon
distribution thereof as appropriate (which may be outright payment, purchases by the assignee of
participations or subparticipations, or other compensating actions, including funding, with the
consent of the Company and the Administrative Agent, the applicable pro rata share of Loans
previously requested but not funded by the Defaulting Lender, to each of which the applicable
assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment
liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder
(and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of
all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its
Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights
and obligations of any Defaulting Lender hereunder shall become effective under applicable Law
without compliance with the provisions of this paragraph, then the assignee of such interest shall
be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance
occurs. In addition, the amount transferred to any Eligible Assignee in relation to a Commitment
and Committed Loans made to any Borrower shall be at least EUR 50,000 (or its equivalent in another
currency) or any other amount which becomes applicable at any time (including as per
Wijzigingsbesluit financiële markten 2012) or, if it is less, the Eligible Assignee shall confirm
in writing to the relevant Borrower that it, the Eligible Assignee, is a professional market party
within the meaning of the Dutch Financial Supervision Act.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrowers (at the Company’s expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.




     3. Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrowers, shall maintain at the Administrative Agent’s Office a copy of
each Assignment and Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts of (and interest on) the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on
the Register information regarding the designation, and revocation of designation, of any
Lender as a Defaulting Lender. The Register shall be available for inspection by each of
the Borrowers and the L/C Issuers at any reasonable time and from time to time upon reasonable
prior notice. In addition, at any time that a request for a consent for a material or substantive
change to the Loan Documents is pending, any Lender wishing to consult with other Lenders in
connection therewith may request and receive from the Administrative Agent a copy of the Register.





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



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 11.01 that affects such Participant. Subject to subsection (e) of this Section,
each Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 11.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.14 as
though it were a Lender.



     Each Lender that sells a participation shall, acting solely for this purpose as a
non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address
of each Participant and the principal amounts (and stated interest) of each Participant’s interest
in the Loans or other obligations under the Loan Documents (the “Participant Register”);
provided that no Lender shall have any obligation to disclose all or any portion of the
Participant Register to any Person (including the identity of any Participant or any information
relating to a Participant’s interest in any commitments, loans, letters of credit or its other
obligations under any Loan Document) except to the extent that such disclosure is necessary to
establish that such commitment, loan, letter of credit or other obligation is in registered form
under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary.



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



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



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



     8. Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose
funding vehicle identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Company (an “SPC”) the option to provide all or any part of
any Committed Loan that such Granting Lender would otherwise be obligated to make pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to
fund any Committed Loan, and (ii) if an SPC elects not to exercise such option or



Page 74









 




otherwise fails
to make all or any part of such Committed Loan, the Granting Lender shall be obligated to
make such Committed Loan pursuant to the terms hereof or, if it fails to do so, to make
such payment to the Administrative Agent as is required under Section 2.13(b)(ii). Each
party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of
such option shall increase the costs or expenses or otherwise increase or change the obligations of
the Borrowers under this Agreement (including its obligations under Section 3.04), (ii) no
SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which
a Lender would be liable (it being understood that the Granting Lender shall remain liable for such
amounts), and (iii) the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document, remain the lender of
record hereunder. The making of a Committed Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Committed Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other senior debt of any SPC,
it will not institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of
the United States or any State thereof. Notwithstanding anything to the contrary contained herein,
any SPC may (i) with notice to, but without prior consent of the Company and the Administrative
Agent and without paying any processing fee therefor, assign all or any portion of its right to
receive payment with respect to any Committed Loan to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of Committed Loans to any
rating agency, commercial paper dealer or provider of any surety or guarantee or credit or
liquidity enhancement to such SPC.




     9. Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns
all of its Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30
days’ notice to the Company and the Lenders, resign as an L/C Issuer and/or (ii) upon 30 days’
notice to the Company, resign as Swing Line Lender. In the event of any such resignation as an L/C
Issuer or the Swing Line Lender, the Company shall be entitled to appoint from among the Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no
failure by the Company to appoint any such successor shall affect the resignation of Bank of
America as an L/C Issuer or the Swing Line Lender, as the case may be. If Bank of America resigns
as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.04(c)). If Bank of America resigns as Swing Line Lender, it
shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing
Line Loans made by it and outstanding as of the effective date of such resignation, including the
right to require the Lenders to make Base Rate Committed Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.05(c). Upon the appointment of a
successor L/C Issuer (including another L/C Issuer that agrees to serve as successor to Bank of
America in such capacity) and/or Swing Line Lender, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing
Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.



     G. Treatment of Certain Information; Confidentiality. Each Lender agrees to take
and to cause its Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as “confidential” or “secret” by the
Company and provided to it by the Company or any Subsidiary, or by the Administrative Agent on the
Company’s or such Subsidiary’s behalf, under this Agreement or any other Loan Document, and neither
it nor any of its Affiliates shall use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in connection with other business now
or hereafter existing or contemplated with the Company or any Subsidiary; except to the extent such
information (i) was or becomes generally available to the public other than as a result of
disclosure by the Lender, or (ii) was or becomes available on a non-confidential basis from a
source other than the Company, provided that such source is not bound by a confidentiality
agreement with the Company known to the Lender; provided, however, that any Lender
may disclose such information (A) at the request or pursuant to any requirement of any Governmental
Authority to which the Lender is subject or in connection with an examination of such Lender by any
such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the Administrative Agent, any
Lender or their respective Affiliates may be party; (E) to the extent 



Page 75









 




reasonably required in
connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to
such Lender’s independent auditors and other professional advisors; (G) to any Participant
or Eligible Assignee, actual or potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Lenders hereunder; (H) as to any Lender
or its Affiliate, as expressly permitted under the terms of any other document or agreement
regarding confidentiality to which the Company or any Subsidiary is party or is deemed party with
such Lender or such Affiliate; (I) to its Affiliates, provided such Affiliate agrees to use such
information solely in connection with this Agreement and agrees in writing to keep such information
confidential; and (J) to any actual or proposed counterparty (or its advisors) to any swap or
derivative transaction relating to a Borrower and its obligations (with the consent of the Company,
such consent not to be unreasonably withheld or delayed, if such counterparty is not a commercial
bank), provided that such Person agrees in writing to keep such information confidential to the
same extent required of the Lenders hereunder. Any Person required to maintain the confidentiality
of information as provided in this Section shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to maintain the confidentiality of
such information as such Person would accord to its own confidential information.




     H. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, each L/C Issuer and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final,
in whatever currency) at any time held and other obligations (in whatever currency) at any time
owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of
any Borrower against any and all of the obligations of such Borrower now or hereafter existing
under this Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of
whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or
any other Loan Document and although such obligations of such Borrower may be contingent or
unmatured or are owed to a branch or office of such Lender or such L/C Issuer different from the
branch or office holding such deposit or obligated on such indebtedness; provided that in
the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so
set off shall be paid over immediately to the Administrative Agent for further application in
accordance with the provisions of Section 2.20 and, pending such payment, shall be
segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit
of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly
to the Administrative Agent a statement describing in reasonable detail the Obligations owing to
such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender,
each L/C Issuer and their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their
respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Company and
the Administrative Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and application.



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



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



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



     L. Severability. If any provision of this Agreement or the other Loan Documents
is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of
the remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 11.12, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, any L/C Issuer or the Swing Line Lender, as applicable,
then such provisions shall be deemed to be in effect only to the extent not so limited.



     M. Replacement of Lenders. If any Lender requests compensation under Section
3.04, if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, if any
Lender is a Defaulting Lender or has been a Defaulting Lender more than twice in the last 6 months,
if any Lender exercises its rights under Section 3.02, if any Lender is a non-consenting
Lender pursuant to which the last paragraph of Section 11.01 applies, or if any other
circumstance exists hereunder that gives the Company the right to replace a Lender as a party
hereto, then the Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Section
11.06), all of its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment), provided that:



     1. the Company shall have paid (or caused a Designated Borrower to pay) to the
Administrative Agent the assignment fee specified in Section 11.06(b);



     2. such Lender shall have received payment of an amount equal to one hundred
percent (100%) of the outstanding principal of its Loans and L/C Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 3.05) from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Company or applicable Designated
Borrower (in the case of all other amounts);



     3. in the case of any such assignment resulting from a Lender exercising its
rights under Section 3.02, a claim for compensation under Section 3.04 or payments
required to be made pursuant to Section 3.01, such assignment will result in a reduction in
such compensation or payments thereafter; and



     4. such assignment does not conflict with applicable Laws.



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



     N. GOVERNING LAW; JURISDICTION; ETC.



     1. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.



     2. SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF ILLINOIS SITTING IN COOK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF
THE NORTHERN DISTRICT OF ILLINOIS, AND ANY APPELLATE COURT FROM ANY 



Page 77









 




THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES
HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH ILLINOIS STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY
LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE COMPANY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.




     3. WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.



     4. SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT
WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.



     O. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



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



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



Page 78









 




Agreement Currency so purchased is less than the sum originally due to the Administrative
Agent from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom
such obligation was owing against such loss. If the amount of the Agreement Currency so purchased
is greater than the sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess to such Borrower (or to any other
Person who may be entitled thereto under applicable law).




     R. Entire Agreement. This Agreement and the other Loan Documents represent the
final agreement among the parties and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral
agreements among the parties.



Page 79









 





SCHEDULE 1.01




MANDATORY COST FORMULAE





	1.	 	The Mandatory Cost (to the extent applicable) is an addition to the interest rate to
compensate Lenders for the cost of compliance with:






	 	(a)	 	the requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its functions);
or
	 
	 	(b)	 	the requirements of the European Central Bank.






	2.	 	On the first day of each Interest Period (or as soon as practicable thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost
Rate”) for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Administrative Agent as a weighted average of the Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per annum. The
Administrative Agent will, at the request of the Company or any Lender, deliver to the Company
or such Lender as the case may be, a statement setting forth the calculation of any Mandatory
Cost.






	3.	 	The Additional Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender to the
Administrative Agent. This percentage will be certified by such Lender in its notice to the
Administrative Agent as its reasonable determination of the cost (expressed as a percentage of
such Lender’s participation in all Loans made from such Lending Office) of complying with the
minimum reserve requirements of the European Central Bank in respect of Loans made from that
Lending Office.






	4.	 	The Additional Cost Rate for any Lender lending from a Lending Office in the United
Kingdom will be calculated by the Administrative Agent as follows:






	 	(a)	 	in relation to any Loan in Sterling:





	 	 	 

	AB+C(B-D)+E x 0.01
	 	 
	 


	 	 
	100 - (A+C)

	 	per cent per annum







	 	(b)	 	in relation to any Loan in any currency other than Sterling:





	 	 	 

	E x 0.01
	 	 
	 


	 	 
	300

	 	per cent per annum





Where:





	 	“A”	 	is the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.
	 
	 	“B”	 	is the percentage rate of interest (excluding the Applicable Rate, the
Mandatory Cost and any additional interest charged on overdue amounts pursuant to
Section 2.09(b) and, in the case of interest (other than on overdue amounts)
charged at the Default Rate, without counting any increase in interest rate effected by
the charging of the Default Rate) payable for the relevant Interest Period of such
Loan.
	 
	 	“C”	 	is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England.
	 
	 	“D”	 	is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.




 









 












	 	“E”	 	is designed to compensate Lenders for amounts payable under the Fees Rules and
is calculated by the Administrative Agent as being the average of the most recent rates
of charge supplied by the Lenders to the Administrative Agent pursuant to paragraph
7 below and expressed in pounds per £1,000,000.






	5.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings
given to them from time to time under or pursuant to the Bank of England Act 1998 or
(as may be appropriate) by the Bank of England;
	 
	 	(b)	 	“Fees Rules” means the rules on periodic fees contained in the
Financial Services Authority Fees Manual or such other law or regulation as may be in
force from time to time in respect of the payment of fees for the acceptance of
deposits;
	 
	 	(c)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate); and
	 
	 	(d)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.






	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e., 5% will be included in the formula as 5 and not as 0.05). A negative
result obtained by subtracting D from B shall be taken as zero. The resulting figures shall
be rounded to four decimal places.






	7.	 	If requested by the Administrative Agent or the Company, each Lender with a Lending
Office in the United Kingdom or a Participating Member State shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Administrative Agent and
the Company, the rate of charge payable by such Lender to the Financial Services Authority
pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by such Lender as being the average of the Fee Tariffs
applicable to such Lender for that financial year) and expressed in pounds per £1,000,000 of
the Tariff Base of such Lender.






	8.	 	Each Lender shall supply any information required by the Administrative Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without limitation, each
Lender shall supply the following information in writing on or prior to the date on which it
becomes a Lender:






	 	(a)	 	its jurisdiction of incorporation and the jurisdiction of the Lending Office
out of which it is making available its participation in the relevant Loan; and
	 
	 	(b)	 	any other information that the Administrative Agent may reasonably require for
such purpose.




Each Lender shall promptly notify the Administrative Agent in writing of any change to the
information provided by it pursuant to this paragraph.





	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge
of each Lender for the purpose of E above shall be determined by the Administrative Agent
based upon the information supplied to it pursuant to paragraphs 7 and 8 above
and on the assumption that, unless a Lender notifies the Administrative Agent to the contrary,
each Lender’s obligations in relation to cash ratio deposits and Special Deposits are the same
as those of a typical bank from its jurisdiction of incorporation with a Lending Office in the
same jurisdiction as such Lender’s Lending Office.






	10.	 	The Administrative Agent shall have no liability to any Person if such determination
results in an Additional Cost Rate which over- or under-compensates any Lender and shall be
entitled to assume that the information provided by any Lender pursuant to paragraphs
3, 7 and 8 above is true and correct in all respects.






	11.	 	The Administrative Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender
based on the information provided by each Lender pursuant to paragraphs 3, 7
and 8 above.




 









 












	12.	 	Any determination by the Administrative Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender
shall, in the absence of manifest error, be conclusive and binding on all parties hereto.






	13.	 	The Administrative Agent may from time to time, after consultation with the Company
and the Lenders, determine and notify to all parties any amendments which are required to be
made to this Schedule in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other authority which replaces
all or any of its functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all parties hereto.






 











 





SCHEDULE 2.01




COMMITMENTS AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable
	Lender	 	Commitment	 	Percentage
	Bank of America, N.A.
	 	$	100,000,000	 	 	 	14.29	%
	Wells Fargo Bank, National Association
	 	$	100,000,000	 	 	 	14.29	%
	JPMorgan Chase Bank, N.A.
	 	$	100,000,000	 	 	 	14.29	%
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	70,000,000	 	 	 	10.00	%
	Mizuho Corporate Bank, Ltd.
	 	$	70,000,000	 	 	 	10.00	%
	U.S. Bank National Association
	 	$	70,000,000	 	 	 	10.00	%
	Bank of China, New York Branch
	 	$	40,000,000	 	 	 	5.71	%
	Barclays Bank PLC
	 	$	40,000,000	 	 	 	5.71	%
	PNC Bank, National Association
	 	$	30,000,000	 	 	 	4.29	%
	The Northern Trust Company
	 	$	30,000,000	 	 	 	4.29	%
	Fifth Third Bank
	 	$	25,000,000	 	 	 	3.57	%
	HSBC Bank USA, National Association
	 	$	25,000,000	 	 	 	3.57	%
	 
	 	 	 	 	 	 	 	 
	 
	 	$	700,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 






 









 






SCHEDULE 2.04




EXISTING LETTERS OF CREDIT




     All Letters of Credit issued by Bank of America, N.A.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Expiration	 	 
	LC Number	 	Applicant	 	Beneficiary	 	Date	 	Amount
	 	7319227	 	 	IDEX Corporation
	 	Liberty Mutual Insurance Company

	 	12/31/11
	 	$	5,496,000	 
	 	68001829	 	 	IDEX Corporation
	 	Comerica Bank

	 	12/31/11
	 	$	350,000	 
	 	68035103	 	 	IDEX Corporation
	 	Banco Itau SA

	 	05/31/12
	 	$	71,000	 
	 	68035100	 	 	Pulsafeeder, Inc.
	 	CTCI Corporation

	 	06/30/13
	 	$	18,500	 
	 	68035105	 	 	Pulsafeeder, Inc.
	 	National Societe Generale Bank

	 	07/12/11
	 	$	11,653.32	 
	 	68035106	 	 	Pulsafeeder, Inc.
	 	National Societe Generale Bank

	 	10/12/12
	 	$	5,653.32	 
	 	68035107	 	 	Pulsafeeder, Inc.
	 	National Societe Generale Bank

	 	10/15/12
	 	$	13,150	 
	 	68035868	 	 	Pulsafeeder, Inc.
	 	Korea Hydro and Nuclear Power

	 	08/13/11
	 	$	11,340	 
	 	68036458	 	 	Pulsafeeder, Inc.
	 	SK Engineering and Construction

	 	09/30/11
	 	$	96,000	 
	 	68036459	 	 	Pulsafeeder, Inc.
	 	SK Engineering and Construction

	 	10/31/11
	 	$	96,000	 
	 	68036460	 	 	Pulsafeeder, Inc.
	 	Korea Hydro and Nuclear Power

	 	12/22/11
	 	$	3,400	 
	 	68036464	 	 	Pulsafeeder, Inc.
	 	CTCI Corporation

	 	12/31/11
	 	$	33,000	 
	 	68036465	 	 	Pulsafeeder, Inc.
	 	CTCI Corporation

	 	03/31/12
	 	$	33,000	 
	 	68035869	 	 	Pulsafeeder, Inc.
	 	Jubilant Organosys Ltd

	 	03/31/12
	 	$	4,757.70	 
	 	68035876	 	 	The Fitzpatrick Co.
	 	CSPC Ouyi Pharmaceutical Co. Ltd

	 	07/01/12
	 	$	19,000	 
	 	68036462	 	 	The Fitzpatrick Co
	 	Activis Pharma Mfg (P) Ltd

	 	09/30/11
	 	$	11,800	 
	 	68036463	 	 	The Fitzpatrick Co
	 	Unichem Laboratories Ltd

	 	10/08/11
	 	$	93,750	 
	 	68036968	 	 	The Fitzpatrick Co
	 	Buhler Barth AG

	 	09/18/11
	 	$	58,450	 
	 	68001844	 	 	Viking Pump, Inc.
	 	Bank of America

	 	08/29/11
	 	$	16,650.17	 
	 	68001850	 	 	Viking Pump, Inc.
	 	Jubilant Organaosys Ltd

	 	02/28/13
	 	$	8,001.21	 
	 	68035099	 	 	Viking Pump, Inc.
	 	Bank of Baroda

	 	12/31/11
	 	$	4,400	 
	 	68035101	 	 	Viking Pump, Inc.
	 	Bank of America

	 	06/30/12
	 	$	5,716	 
	 	68035104	 	 	Viking Pump, Inc.
	 	State Bank of India, Main Br.

	 	12/31/11
	 	$	4,400	 
	 	68035873	 	 	Viking Pump, Inc.
	 	Larsen and Toubro Limited

	 	09/30/13
	 	$	10,500	 
	 	68035875	 	 	Viking Pump, Inc.
	 	Beijing Petrochemical Design Institute

	 	03/26/12
	 	$	16,470	 
	 	68001847	 	 	ADS, LLC
	 	Bank of Jordon

	 	08/01/11
	 	$	141,044	 
	 	68036466	 	 	Warren Rupp, Inc.
	 	Barclays Bank

	 	11/01/11
	 	$	20,000	 
	 	68036467	 	 	Warren Rupp, Inc.
	 	Barclays Bank

	 	11/01/11
	 	$	17,000	 
	 	68001840	 	 	IDEX Health & Science LLC
	 	Campanellis Middleborough IV LLC

	 	02/17/12
	 	$	238,965	 
	 	68035870	 	 	Pulsafeeder, Inc.
	 	National Societe Generale Bank

	 	01/31/12
	 	$	780	 
	 	68036970	 	 	The Fitzpatrick Company
	 	MATRIX LABORATORIES LTD

	 	7/15/2011
	 	$	64,000	 
	 	68036971	 	 	The Fitzpatrick Company
	 	MATRIX LABORATORIES LTD

	 	10/15/2012
	 	$	32,000	 
	 	 	 	 	 	 	 
	 	 	 	 	 
	Total
	 	 	 	 

	 	 	 	$	7,006,380.72	 
	 	 	 	 	 	 	 
	 	 	 	 






 









 






Schedule 5.05




Litigation

None




 









 








Schedule 5.07




ERISA Matters

None





 









 








Schedule 5.11




Permitted Liabilities

None





 









 








Schedule 5.12




Environmental Matters

None





 









 








Schedule 5.14




Subsidiaries & Minority Interests




IDEX Corporation


Band It IDEX Inc


Band It Company Limited

Band It Compals Asia


Fitzpatrick Company


Fitzpatrick Company Europe NV


IDEX UK Investment Ltd (UK)


CVI Laser LLC


Korea Electro Optics Co Ltd

CVI Laser Interational LLC


CVI Technical Optics Company Ltd

Melles Griot Gmbh

Melles Griot KK

CVI Laser Limited

Melles Griot SP Pte Ltd

CVI Laser Ltd Canada

Melles Griot BV

Melles Griot AG

CVI Laser



Idex Investment LLC


Pulsafeeder Inc (US)


Idex Asia Pacific Pte Ltd


Warren Rupp Inc


Blagdon Pump Holdings Limited


Gast Manufacturing


Gast Asia Inc

Gast Group Ltd


Micropump Inc



Trebor International, Inc

Micropump Limited UK

Idex Health & Science SA

Idex Health & Science Gmbh


IDEX Holdings Inc


Jun Air International A/S


Jun Air France SARL

Jun Air Belelux BV



Wright Flow Technologies Limited UK

Viking Pump of Canda

Idex Middle East FZE

Idex Pump Technologies Ireland Limited

Idex Japan GK

Fast & Fluid Management Srl



Fast and Fluid Management France SARL

Fast and Fluid Management UK Limited

Fast and Fluid Management Iberica S.A.


Viking Pump, Inc


Idex Mexico SA de CV


Hale Products Inc


Godiva Products Limited UK

Hale Products Europe Limited

Godiva Limited UK

Class 1 Inc

Hale Products Europe Gmbh



Toptech Systems Inc

Richter Pumps and Valves

Wright Flow Technologies, Inc




 









 





Idex Service Corporation

Fluid Management Inc US


FM Investments Inc


Fluid Management Operations LLC


Fast & Fluid Management Australia Pty Ltd

Idex Europe


Toptech Systems NV

Fluid Management Europe BV


Idex Technology Suzhou Co

Fast & Fluid Managmeent East Europe SP

Idex Precision Products Co Ltd

Idex Europe Investment BV


Idex Italy Srl

OBL Srl


Idex Trading Co LTd

Idex Dinglee Co Tld


Idex Holdings Gmbh

Ipek Special Gmbh

Ipek International


Vetter Gmbh

Lukas Hydralulik


Richter Chemie Technik Gmbh


Ricther Ep Co Ltd

Richter Pumps & Valves India

Paros SAS

Faure Herman SAS


Fluid Management Canada

Idex do Brasil Servico e Venda Ltd


Idex Delaware Inc

Idex Health & Science LLC


Rheodyne LLC

Precision Polymer Engineering LLC


Knight LLC


Knight Inc

Knight UK Ltd

Knight Canada Limited

Knight Equipment Pty


Liquid Controls LLC


Corken Inc

Faure Herman Meter Inc

Idex Fluid & Metering Private Ltd

Liquid Controls Europe Spa

SAMPI Spa


M Bos Srl


Banjo Corporation

Quadro Inc

Microfluidics International Corp


Microfluidcs Corporation


Semrock Inc


Advanced Thin Films LLC

Stable Laser Systems LLC


Nova Technologies Corp


ADS LLC


ADS Environmental Services Pty Ltd

ADS Corp


ADS Environmental Service Pte Ltd

ADS Environmental Services NZ Ltd


Quadro Engineering

Idex India Private Limited

Idex Leasing Gmbh



 









 





Schedule 5.15




Insurance

None






 









 








Schedule 7.01




PERMITTED LIENS





	1.	 	Liens on certain assets of FAST, S.r.l. in connection with subsidiary indebtedness not
exceeding $5.0 million which Liens had initially been granted at the time it became a
Subsidiary and were not created in anticipation thereof.






	2.	 	Liens on certain assets of Liquid Controls (India) Pvt. Ltd. And S.A.M.P.I. Srl. in
connection with subsidiary and joint venture indebtedness not to exceed $3.0 million which
Liens had initially been granted at the time it became a Subsidiary and were not created in
anticipation thereof.






	3.	 	Liens on certain assets of iPEK International GmbH and iPEK Spezial-TV in connection with
subsidiary indebtedness not exceeding €.3 million which Liens had initially been granted at
the time it became a Subsidiary and were not created in anticipation thereof.






	4.	 	Liens on certain assets of Richter Chemi-Technik GmbH in connection with subsidiary
indebtedness not to exceed €3.0 million which Liens had initially been granted at the time it
became a Subsidiary and were not created in anticipation thereof.






	5.	 	Liens on certain assets of The Fitzpatrick Company Europe NV in connection with subsidiary
indebtedness not to exceed €1.0 million which liens had initially been granted at the time it
became a Subsidiary and were not created in anticipation thereof.






	6.	 	Liens on certain assets of Melles Griot KK in connection with subsidiary indebtedness not to
exceed ¥600 million which Liens had initially been granted at the time it became a Subsidiary
and were not created in anticipation thereof.






	7.	 	Lines on certain assets of Korea Electro-Optics Co Ltd in connections with subsidiary
indebtedness not to exceed KRW 1.3 billion which Liens had initially been granted at the time
it became a Subsidiary and were not created in anticipation thereof.










 









 











Schedule 7.04




Permitted Investments

None





 









 








Schedule 7.05




PERMITTED INDEBTEDNESS





	1.	 	Liquid Controls: SAMPI SpA has unwritten arrangements with its banks (Banca Toscana, Banca
Intesa, Banca Nazionale Del Lavoro (“BNL”), and Cassa Risp. Pistoia & Pescia) that provide for
short-term (90 to 180 days) advances on bank drafts, certain receivables, and provide for
general funding requirements (providing up to €3.95 million).






	2.	 	Liquid Controls: Mortgage obligations between M.BOS Srl (a wholly-owned subsidiary of SAMPI
SpA) and Locafit (the leasing branch of BNL) in connection with the construction of a new
office and manufacturing facility in Altopascio, Italy in a principal amount not exceeding
€3.5 million, with interest payable quarterly at the 3-month Euribor rate.






	3.	 	Jun-Air Subsidiaries: Bank lines of credit at various Jun-Air subsidiaries not to exceed
$3.0 million used to fund operating requirements.






	4.	 	iPek Spezial-TV GmbH & iPek International GmbH : Bank lines of credit totaling €.3 million
used to fund operating requirements.






	5.	 	Richter Chemie-Technik GmbH : Bank lines of credit not to exceed €3.0 million used to fund
operating requirements.






	6.	 	IDEX Corporation $100 Million Term Loan Credit Agreement dated April 18, 2008






	7.	 	The Fitzpatrick Company Europe NV: Bank line of credit to support overdrafts, letters of
credit and bank guarantees not to exceed €1.0 million.






	8.	 	International Bank Credit Facility with JPMorgan Chase Bank, not to exceed $10.0 million to
provide overdraft capability for IDEX European Subsidiaries.






	9.	 	IDEX Corporation €81 Million 2.58% 2010 Senior Notes dated June 9, 2010






	10.	 	IDEX Corporation $300 Million 4.50% Senior Notes dated December 6, 2010.






	11.	 	CVI Laser , LLC Industrial Revenue bonds, series 1998 issued by the City of Albuquerque, New
Mexico- current principal $1.4 million






	12.	 	Melles Griot KK: Bank lines of credit not to exceed ¥850 million used to fund operating
requirements.






	13.	 	Korea Elctro-Optics Co Ltd: Bank lines of credit not to exceed KRW 1.5 billion used to fund
operating requirements.






	14.	 	Precision Polymer Engineering Ltd: Capital lease obligations related to the lease of
machinery and equipment not to exceed £.5 million.




 









 











Schedule 7.07




CONTINGENT OBLIGATIONS



IDEX has entered into a license agreement with IPN that allows IDEX units to exclusively utilize
certain of IPN’s technologies. If an IDEX unit elects to make or have products made using these
technologies from a vendor other than IPN then certain manufacturing fees and royalties must be
paid to IPN based on a sliding scale. This agreement can be terminated by IDEX at any time after
December 1, 2008 with 90 days notice.




 









 








Schedule 11.02




ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES




COMPANY/BORROWERS:




IDEX Corporation

630 Dundee Road, Suite 400

Northbrook, Illinois 60062

Attention: Frank J, Notaro

Telephone: (847) 498-7070

Telecopier: (847) 498-9123

Electronic Mail: fnotaro@idexcorp.com

Website Address: www.idexcorp.com




ADMINISTRATIVE AGENT:




Administrative Agent’s Office




(for payments and Requests for Credit Extensions):

Bank of America, N.A.

Building B

2001 Clayton Road

Mail Code: CA702-02-25

Concord, CA 94520-2405

Attention: Faizan Hafeez

Phone: (925) 675-8815

Fax: 1.866.540.7550

Electronic Mail: faizan.hafeez@baml.com




Other Notices as Administrative Agent:

Bank of America, N.A.

1455 Market St, 5th Floor

Mail Code: CA5-701-05-19

San Francisco, CA 94103

Attention: Anthea Del Bianco, VP

Phone: (415) 436-2776

Fax: (415) 503-5101

Electronic Mail: anthea.del_bianco@baml.com




ADMINISTRATIVE AGENT ACCOUNT INFORMATION:




Account No. (for Dollars):

Bank of America NA

ABA 026009593

Acct 3750836479

Attn Credit Services West

Ref: IDEX Corp




Account No. (for Euro): 65280019

Ref: Idex

Swift Address: BOFAGB22




Account No. (for Sterling): 65280027

Ref: Idex

London Sort Code: 16-50-50

Swift Address: BOFAGB22




Account No. (for Yen): 606490661046 (Bank of America, Tokyo)

Ref: Idex

Swift Address: BOFAJPJX




Account No. (for Swiss Francs): 601490661012 (Bank of America, Geneva)

Ref: Idex

Swift Address: BOFACH2X




Account No. (for Canadian Dollars): 711465003220 (Bank of America Canada

(Transit # 01312), Toronto)

Ref: Idex

Swift Address: BOFACATT




 









 





BANK OF AMERICA AS L/C ISSUER:




Bank of America, N.A.

Trade Operations-Los Angeles

1000 W. Temple Street

Mail Code: CA9-705-07-05

Los Angeles, CA 90012-1514

Attention: Sandra Leon, Vice President

Telephone: 213.580.8369

Telecopier: 213.457.8841

Electronic Mail: Sandra.Leon@baml.com




WELLS FARGO AS L/C ISSUER:




Wells Fargo Bank, National Association

One Front Street, 21st Floor

San Francisco, CA 94111

Attention: Standby LC Dept.

Telephone: 800.798.2815 #1

Electronic Mail: sftrade@wellsfargo.com




SWING LINE LENDER:




Bank of America, N.A.

Building B

2001 Clayton Road

Mail Code: CA702-02-25

Concord, CA 94520-2405

Attention: Faizan Hafeez

Phone: (925) 675-8815

Fax: 1.866.540.7550

Electronic Mail: faizan.hafeez@baml.com





 











 





EXHIBIT A




FORM OF COMMITTED LOAN NOTICE




     Date:                          


To:   Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of June 27, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement”; the terms defined therein being used herein as therein defined), among IDEX
Corporation, a Delaware corporation (the “Company”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, an L/C Issuer and Swing Line Lender.



     The Company hereby requests, on behalf of itself or, if applicable, the Designated Borrower
referenced in item 6 below (select one):




	 	o	 	 A Borrowing of Committed Loans          o   A conversion or continuation of Loans
	 
	 	1.	 	On _______________________ (a Business Day).
	 
	 	2.	 	In the amount of                                                   .
	 
	 	3.	 	Comprised of                                                   
	 
	 	 	 	        [Type of Committed Loan requested]1
	 
	 	4.	 	In the following currency:                                              .
	 
	 	5.	 	For Eurocurrency Rate Loans: with an Interest Period of       months.
	 
	 	6.	 	On behalf of _____________________________ [Insert name of applicable Designated
Borrower].





     The Committed Borrowing, if any, requested herein complies with the provisos to the first
sentence of Section 2.01 of the Agreement.



	 	 	 	 	 
	 	IDEX CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	1	 	Base Rate Loan or Eurocurrency Rate Loan in Same
Day Funds.





Form of Committed Loan Notice




A-1









 








EXHIBIT B




FORM OF SWING LINE LOAN NOTICE





     Date:                          


To:   Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of June 27, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement”; the terms defined therein being used herein as therein defined), among IDEX
Corporation, a Delaware corporation (the “Company”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, an L/C Issuer and Swing Line Lender.



     The Company hereby requests a Swing Line Loan:




	 	1.	 	On _____________________ (a Business Day).
	 
	 	2.	 	In the amount of                                                   .





     The Swing Line Borrowing requested herein complies with the provisos to the first sentence of
Section 2.04(a) of the Agreement.



	 	 	 	 	 
	 	IDEX CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Form of Swing Line Loan Notice




B-1









 








EXHIBIT C




FORM OF NOTE





     FOR VALUE RECEIVED, the undersigned (each a “Borrower” and, collectively, the
“Borrowers”), hereby promises to pay to _____________________ or registered assigns (the
“Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of each Loan from time to time made by the Lender to it under that certain Credit
Agreement, dated as of June 27, 2011 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the “Agreement”; the terms defined therein being
used herein as therein defined), among the Borrowers, the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent, an L/C Issuer and Swing Line Lender.



     Each Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. Except as otherwise provided in Section 2.05(f) of the
Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in the currency in which such Committed Loan
was denominated and in Same Day Funds at the Administrative Agent’s Office for such currency. If
any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be
paid upon demand, from the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement. Notwithstanding
anything to the contrary contained herein the Obligations of each Designated Borrower hereunder are
several and not joint and several.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. Upon the occurrence and continuation of one or more of the Events of Default specified in
the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall
be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also attach schedules to this Note and endorse thereon the date,
amount, currency and maturity of its Loans and payments with respect thereto.



     Each Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



[signature page follows]




Form of Note




C-1









 








     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS.



	 	 	 	 	 
	 	[IDEX CORPORATION]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[DESIGNATED BORROWER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Form of Note





C-2









 








LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Currency	 	 	 	Amount of	 	Outstanding	 	 
	 	 	 	 	and	 	End of	 	Principal or	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	Interest Paid	 	Balance	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	This Date	 	This Date	 	Made By
	 





Form of Note




C-3









 








EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                          


To:   Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of June 27, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among IDEX
Corporation, a Delaware corporation (the “Company”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, an L/C Issuer and Swing Line Lender.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                               
of the Company, and that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the behalf of the Company, and that:



[Use following paragraph 1 for fiscal year-end financial statements]




     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the Company ended as of
the above date, together with the report and opinion of an independent certified public accountant
required by such section.



[Use following paragraph 1 for fiscal quarter-end financial statements]




     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Company ended as of the
above date. Such financial statements fairly present the financial condition, results of
operations and cash flows of the Company and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Company during the accounting period covered by the
attached financial statements.



     3. A review of the activities of the Company during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period the
Company performed and observed all its Obligations under the Loan Documents, and



[select one:]




     [to the best knowledge of the undersigned during such fiscal period, the Company performed and
observed each covenant and condition of the Loan Documents applicable to it.]



—or—




     [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]



     4. The representations and warranties of the Borrowers contained in Article V of the
Agreement, and any representations and warranties of the Borrowers that are contained in any
document furnished at any time under or in connection with the Loan Documents, are true and correct
on and as of the date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Compliance Certificate, the representations and
warranties contained in Section 5.11(a) of the Agreement shall



Form of Compliance Certificate




D-1









 







be deemed to refer to the most recent statements furnished pursuant to Section 6.01(a)
and (b) of the Agreement, including the statements in connection with which this Compliance
Certificate is delivered.




     5. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of ______________________.



	 	 	 	 	 
	 	IDEX CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Form of Compliance Certificate




D-2









 








SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




For the Quarter/Year Ended                          



	 	 	 	 	 

	I. Section 7.15(a) — Interest Coverage Ratio.
	 	 	 	 
	A. Consolidated EBITDA for four consecutive fiscal quarters ending on above date (“Subject Period”):
	 	 	 	 
	1. Consolidated Net Income for Subject Period:
	 	$	                    	 
	2. Consolidated interest expenses for Subject Period:
	 	$	                    	 
	3. Provision for income taxes for Subject Period:
	 	$	                    	 
	4. Interest component for Off Balance Sheet Obligations for Subject Period:
	 	$	                    	 
	5. Depreciation expenses for Subject Period:
	 	$	                    	 
	6. Amortization expenses for Subject Period:
	 	$	                    	 
	7. Consolidated EBITDA (Lines II.A1 + 2 + 3 + 4 + 5 + 6):
	 	$	                    	 
	B. Consolidated Interest Expense for Subject Period:
	 	$	                    	 
	C. Consolidated Interest Coverage Ratio (Line I.A.7  ̧ Line I.B):
	 	           to 1
	Minimum required: 3.00 to 1
	 	 	 	 
	 
	 	 	 	 
	II. Section 7.15(b) — Leverage Ratio.
	 	 	 	 
	A. Consolidated Debt at Statement Date:
	 	$	                    	 
	B. Consolidated EBITDA for Subject Period (Line I.A.7 above):
	 	$	                    	 
	C. Consolidated Leverage Ratio (Line II.A  ̧ Line II.B):
	 	           to 1
	Maximum permitted: _____ to 1
	 	 	 	 






Form of Compliance Certificate




D-3









 








EXHIBIT E




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below, receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including, without limitation, the Letters of Credit and
the Swing Line Loans included in such facilities2) and (ii) to the extent permitted to
be assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or warranty by the
Assignor.




	1.	 	Assignor:                                                             
	 
	2.	 	Assignee: ____________________ [and is an
Affiliate [identify Lender]3]
	 
	3.	 	Borrower(s):                                                             
	 
	4.	 	Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit
Agreement
	 
	5.	 	Credit Agreement: Credit Agreement, dated as of June 27, 2011 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Credit
Agreement;” the terms defined therein being used herein as therein defined), among IDEX
Corporation, a Delaware corporation (the “Company”), the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, an L/C Issuer and Swing
Line Lender.
	 
	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate	 	 	 	 	 	 
	 	 	Amount of	 	Amount of	 	Percentage	 	 
	Facility	 	Commitment	 	Commitment	 	Assigned of	 	 
	Assigned	 	for all Lenders*	 	Assigned*	 	Commitment4	 	CUSIP Number
	                    
	 	$	                    	 	 	$	                    	 	 	 	                    	%	 	 	 	 
	                    
	 	$	                    	 	 	$	                    	 	 	 	                    	%	 	 	 	 








 




			
	2	 	Include all applicable subfacilities.
	 
	3	 	Select as applicable.
	 
	4	 	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.





Form of Assignment and Assumption




E-1









 









	 	 	[7. Trade Date:                                         ]5




Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	[Consented to and]6 Accepted:



BANK OF AMERICA, N.A., as

Administrative Agent

 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 
	[Consented to:]7

 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 





 




			
	5	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.
	 
	6	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	7	 	To be added only if the consent of the
Company and/or other parties (e.g., Swing Line Lender, L/C Issuer) is required
by the terms of the Credit Agreement.





Form of Assignment and Assumption





E-2









 








ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR



ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



          1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of any Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by any Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and
such other documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on
the basis of which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (v) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.




     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Illinois.



Form of Assignment and Assumption





E-3









 








EXHIBIT F




FORM OF DESIGNATED BORROWER

REQUEST AND ASSUMPTION AGREEMENT




Date: ___________, _____



To:   Bank of America, N.A., as Administrative Agent




     Ladies and Gentlemen:



     This Designated Borrower Request and Assumption Agreement is made and delivered pursuant to
Section 2.18 of that certain Credit Agreement, dated as of June 27, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Credit Agreement”), among IDEX Corporation, a Delaware corporation (the
“Company”), the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, an L/C Issuer and Swing Line Lender, and reference is made thereto for full
particulars of the matters described therein. All capitalized terms used in this Designated
Borrower Request and Assumption Agreement and not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement.



     Each of ______________________ (the “Designated Borrower”) and the Company hereby
confirms, represents and warrants to the Administrative Agent and the Lenders that the Designated
Borrower is a Subsidiary of the Company.



     The documents required to be delivered to the Administrative Agent under Section 2.18
of the Credit Agreement will be furnished to the Administrative Agent in accordance with the
requirements of the Credit Agreement.



     The true and correct unique identification number that has been issued to the Designated
Borrower by its jurisdiction of organization and the name of such jurisdiction are set forth below:



	 	 	 	 	 
	Identification Number	 	Jurisdiction of Organization





     The parties hereto hereby confirm that with effect from the date of the Designated Borrower
Notice for the Designated Borrower, the Designated Borrower shall have obligations, duties and
liabilities toward each of the other parties to the Credit Agreement identical to those which the
Designated Borrower would have had if the Designated Borrower had been an original party to the
Credit Agreement as a Borrower. Effective as of the date of the Designated Borrower Notice for the
Designated Borrower, the Designated Borrower confirms its acceptance of, and consents to, all
representations and warranties, covenants, and other terms and provisions of the Credit Agreement.



     The parties hereto hereby request that the Designated Borrower be entitled to receive Loans
under the Credit Agreement, and understand, acknowledge and agree that neither the Designated
Borrower nor the Company on its behalf shall have any right to request any Loans for its account
unless and until the date five Business Days after the effective date designated by the
Administrative Agent in a Designated Borrower Notice delivered to the Company and the Lenders
pursuant to Section 2.18 of the Credit Agreement.



     The parties hereto hereby agree that (a) each reference to a “Borrower” or the “Borrowers” in
the Credit Agreement and the other Loan Documents shall include the Designated Borrower and (b)
“Credit Agreement” or “Agreement” as used therein shall mean the Credit Agreement as supplemented
hereby.



     The Designated Borrower hereby acknowledges that it has received a copy of the Loan Documents
and that it has read and understands the terms thereof and agrees to be bound by the terms of the
Loan Documents to which it is a party.



     This Designated Borrower Request and Assumption Agreement shall constitute a Loan Document
under the Credit Agreement.



     THIS DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.



Form of Designated Borrower Request and Assumption Agreement





F-1









 








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



	 	 	 	 	 
	 	[DESIGNATED BORROWER]

 	 
	 	By:  	 	 
	 	 	Title: 	 	 
	 	 	 	 
	 
	 	IDEX CORPORATION

 	 
	 	By:  	 	 
	 	 	Title: 	 	 
	 	 	 	 
	 



Form of Designated Borrower Request and Assumption Agreement




F-2









 








EXHIBIT G




FORM OF DESIGNATED BORROWER NOTICE





     Date: ___________, _____


To:   [Company]




     The Lenders party to the Credit Agreement referred to below



     Ladies and Gentlemen:



     This Designated Borrower Notice is made and delivered pursuant to Section 2.18 of that
certain Credit Agreement, dated as of June 27, 2011 (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the “Credit Agreement”), among IDEX
Corporation, a Delaware corporation (the “Company”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, an L/C Issuer and Swing Line Lender,
and reference is made thereto for full particulars of the matters described therein. All
capitalized terms used in this Designated Borrower Notice and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.



     The Administrative Agent hereby notifies Company and the Lenders that effective as of the date
hereof [_________________________] shall be a Designated Borrower and may receive Loans for its
account on the terms and conditions set forth in the Credit Agreement.



     This Designated Borrower Notice shall constitute a Loan Document under the Credit Agreement.



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Title: