exv10w16



 





Exhibit 10.16






 

 








EXECUTION COPY




$1,500,000,000




AMENDED AND RESTATED CREDIT AGREEMENT




among




FLUOR CORPORATION,

as Borrower,




BNP PARIBAS,

as Administrative Agent and an Issuing Lender,




CITICORP USA, INC.,

as Syndication Agent,




BANK OF AMERICA, N.A. and

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

as Co-Documentation Agents,




and




THE LENDERS PARTY HERETO




September 7, 2006




BANC OF AMERICA SECURITIES LLC and

BNP PARIBAS SECURITIES CORP.,

as Joint Lead Arrangers




BANC OF AMERICA SECURITIES LLC,

as Sole Book Manager




 

 








 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE I DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 1.01. Definitions
	 	 	1	 
	 

	 	SECTION 1.02. Other Definitional Provisions
	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE II REVOLVING ADVANCES AND LETTERS OF CREDIT	 	 	14	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 2.01. Revolving Advances
	 	 	14	 
	 

	 	SECTION 2.02. Making the Revolving Advances
	 	 	14	 
	 

	 	SECTION 2.03. Repayment of Revolving Advances
	 	 	15	 
	 

	 	SECTION 2.04. Optional Prepayments of Revolving Advances; Voluntary Termination or Reduction of Commitments
	 	 	15	 
	 

	 	SECTION 2.05. Interest on Revolving Advances
	 	 	16	 
	 

	 	SECTION 2.06. Conversion and Continuation of Revolving Advances
	 	 	19	 
	 

	 	SECTION 2.07. Issuance of Letters of Credit and Creation of Bankers Acceptances
	 	 	19	 
	 

	 	SECTION 2.08. Participations in Letters of Credit and Bankers Acceptances
	 	 	21	 
	 

	 	SECTION 2.09. Reimbursement in Respect of Letters of Credit and Bankers Acceptances
	 	 	22	 
	 

	 	SECTION 2.10. Disbursement Procedures for Letters of Credit and Bankers Acceptances; Reporting
	 	 	24	 
	 

	 	SECTION 2.11. Interest on LC Disbursements and Reimbursement of Other Amounts
	 	 	24	 
	 

	 	SECTION 2.12. Cash Collateralization
	 	 	24	 
	 

	 	SECTION 2.13. Obligations
	 	 	26	 
	 

	 	SECTION 2.14. General Provisions as to Payments
	 	 	26	 
	 

	 	SECTION 2.15. Computation of Interest and Fees
	 	 	27	 
	 

	 	SECTION 2.16. Taxes; Net Payments
	 	 	27	 
	 

	 	SECTION 2.17. Increased Costs
	 	 	29	 
	 

	 	SECTION 2.18. Illegality
	 	 	30	 
	 

	 	SECTION 2.19. Fees
	 	 	30	 
	 

	 	SECTION 2.20. Evidence of Debt
	 	 	32	 
	 

	 	SECTION 2.21. Use of Proceeds
	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE III CONDITIONS PRECEDENT	 	 	33	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 3.01. Closing Date
	 	 	33	 
	 

	 	SECTION 3.02. Conditions to All Revolving Advances and Letters of Credit
	 	 	34	 
	 
	 	 	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES	 	 	35	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 4.01. Corporate Existence and Power
	 	 	35	 
	 

	 	SECTION 4.02. Corporate and Governmental Authorization; Contravention
	 	 	35	 
	 

	 	SECTION 4.03. Binding Effect
	 	 	35	 
	 

	 	SECTION 4.04. Financial Information
	 	 	35	 
	 

	 	SECTION 4.05. Litigation
	 	 	35	 
	 

	 	SECTION 4.06. Compliance with ERISA
	 	 	36	 
	 

	 	SECTION 4.07. Taxes
	 	 	36	 
	 

	 	SECTION 4.08. Material Subsidiaries
	 	 	36	 
	 

	 	SECTION 4.09. Not an Investment Company
	 	 	36	 
	 

	 	SECTION 4.10. Business of the Borrower; Use of Proceeds
	 	 	36	 









i









 








	 	 	 	 	 	 	 
	 

	 	SECTION 4.11. No Misleading Statements
	 	 	37	 
	 

	 	SECTION 4.12. Environmental Matters
	 	 	37	 
	 

	 	SECTION 4.13. No Default
	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE V COVENANTS	 	 	37	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 5.01. Information
	 	 	37	 
	 

	 	SECTION 5.02. Payment of Obligations
	 	 	40	 
	 

	 	SECTION 5.03. Maintenance of Property; Insurance
	 	 	40	 
	 

	 	SECTION 5.04. Conduct of Business and Maintenance of Existence
	 	 	40	 
	 

	 	SECTION 5.05. Compliance with Laws
	 	 	41	 
	 

	 	SECTION 5.06. Keeping of Records; Inspection of Property, Books and Records
	 	 	41	 
	 

	 	SECTION 5.07. Debt
	 	 	41	 
	 

	 	SECTION 5.08. Negative Pledge
	 	 	41	 
	 

	 	SECTION 5.09. Consolidations, Mergers and Sales of Assets
	 	 	42	 
	 

	 	SECTION 5.10. Payment of
Taxes, Etc.
	 	 	42	 
	 

	 	SECTION 5.11. Pari-passu Obligations
	 	 	43	 
	 

	 	SECTION 5.12. Further Assurances
	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE VI DEFAULTS	 	 	43	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 6.01. Events of Default
	 	 	43	 
	 

	 	SECTION 6.02. Remedies
	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE VII THE ADMINISTRATIVE AGENT	 	 	46	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 7.01. Appointment and Authorization
	 	 	46	 
	 

	 	SECTION 7.02. Rights as a Lender
	 	 	46	 
	 

	 	SECTION 7.03. Reliance by Administrative Agent
	 	 	46	 
	 

	 	SECTION 7.04. Delegation of Duties
	 	 	47	 
	 

	 	SECTION 7.05. Liability of Administrative Agent
	 	 	47	 
	 

	 	SECTION 7.06. Indemnification
	 	 	48	 
	 

	 	SECTION 7.07. Non-Reliance on Administrative Agent and Other Lenders
	 	 	48	 
	 

	 	SECTION 7.08. Resignation of Administrative Agent
	 	 	49	 
	 

	 	SECTION 7.09. Agent With Respect to Cash Collateral Accounts
	 	 	49	 
	 

	 	SECTION 7.10. No Other
Duties, etc.
	 	 	50	 
	 
	 	 	 	 	 	 
	ARTICLE VIII MISCELLANEOUS	 	 	50	 
	 
	 	 	 	 	 	 
	 

	 	SECTION 8.01. Notices
	 	 	50	 
	 

	 	SECTION 8.02. No Waivers
	 	 	51	 
	 

	 	SECTION 8.03. Expenses; Taxes; Indemnification
	 	 	51	 
	 

	 	SECTION 8.04. Sharing of Set-Offs
	 	 	53	 
	 

	 	SECTION 8.05. Amendments and Waivers
	 	 	53	 
	 

	 	SECTION 8.06. Successors and Assigns
	 	 	54	 
	 

	 	SECTION 8.07. Collateral
	 	 	56	 
	 

	 	SECTION 8.08. Governing Law
	 	 	56	 
	 

	 	SECTION 8.09. Counterparts; Effectiveness
	 	 	56	 
	 

	 	SECTION 8.10. Confidentiality
	 	 	56	 
	 

	 	SECTION 8.11. Captions
	 	 	57	 
	 

	 	SECTION 8.12. Severability
	 	 	57	 
	 

	 	SECTION 8.13. Integration
	 	 	57	 






ii





 









 








	 	 	 	 	 	 	 
	 

	 	SECTION 8.14. CONSENT TO JURISDICTION; WAIVER OF VENUE
	 	 	57	 
	 

	 	SECTION 8.15. Service of Process
	 	 	58	 
	 

	 	SECTION 8.16. No Advisory or Fiduciary Responsibility
	 	 	58	 
	 

	 	SECTION 8.17. WAIVER OF TRIAL BY JURY
	 	 	59	 
	 

	 	SECTION 8.18. Interest Rate Limitation
	 	 	59	 
	 

	 	SECTION 8.19. Judgment Currency
	 	 	60	 
	 

	 	SECTION 8.20. USA PATRIOT Act
	 	 	60	 






LIST OF EXHIBITS AND SCHEDULES




	 	 	 
	EXHIBIT A

	 	FORM OF OPINION OF COUNSEL FOR THE BORROWER
	EXHIBIT B

	 	FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
	EXHIBIT C

	 	FORM OF CERTIFICATE OF ASSISTANT SECRETARY TO THE BORROWER
	EXHIBIT D 

EXHIBIT E

	 	FORM OF NOTICE OF REVOLVING BORROWING

FORM OF NOTICE OF CONVERSION/CONTINUATION
	EXHIBIT F

	 	FORM OF REVOLVING NOTE
	EXHIBIT G

	 	FORM OF LENDER ADDENDUM
	 
	 	 
	SCHEDULE 1.01(a)

	 	COMMITMENTS AND APPLICABLE PERCENTAGES
	SCHEDULE 1.01(b)

	 	EXISTING LETTERS OF CREDIT
	SCHEDULE 5.08

	 	EXISTING LIENS






iii





 









 








AMENDED AND RESTATED CREDIT AGREEMENT




     AMENDED AND RESTATED CREDIT AGREEMENT (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, this “Agreement”) dated as of
September 7, 2006 among FLUOR CORPORATION, a Delaware corporation (the “Borrower”), the
LENDERS party hereto from time to time, BNP PARIBAS, as Administrative Agent and an Issuing Lender,
CITICORP USA, INC., as Syndication Agent, and BANK OF AMERICA, N.A. and THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., as Co-Documentation Agents.



     WHEREAS, the Borrower is a party to the Credit Agreement, dated as of July 28, 2004 (as
amended, supplemented or otherwise modified from time to time prior to the amendment and
restatement provided for herein, the “Existing Credit Agreement”), among the Borrower, the
banks and other financial institutions or entities parties thereto (the “Existing
Lenders”), BNP Paribas, as Administrative Agent and an Issuing Lender, and certain other agents
parties thereto, pursuant to which the Existing Lenders were committed to making extensions of
credit to the Borrower on the terms and conditions set forth therein and issued (or participated in
the issuance of) the Existing Letters of Credit (as defined below);



     WHEREAS, the Borrower has requested that the Existing Credit Agreement be amended and restated
in its entirety to become effective and binding on the Borrower pursuant to the terms hereof, and
the Lenders (including the Existing Lenders that are parties hereto) have agreed (subject to the
terms of this Agreement) to amend and restate the Existing Credit Agreement in its entirety to read
as set forth herein; and



     WHEREAS, the Existing Credit Agreement is being amended and restated on and subject to the
terms and conditions set forth herein, and this Agreement is made in renewal, amendment,
restatement and modification of, but not in extinguishment or novation of, the obligations under
the Existing Credit Agreement;



     NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, the
parties hereto hereby agree that on the Closing Date (as defined below) the Existing Credit
Agreement shall be, and hereby is, amended and restated in its entirety as follows:



ARTICLE I




DEFINITIONS




          SECTION 1.01. Definitions.




     The following terms, as used herein, have the following meanings:



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



     “Administrative Agent’s Account” means the account of the Administrative Agent as the
Administrative Agent shall specify in writing to the Credit Parties.



1









 





     “Affiliate” means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person. The term “control”
(including the terms “controlled by” or “under common control with”) means the possession, direct
or indirect, of the power to vote 50% or more of the securities having ordinary voting power for
the election of directors of such Person or to direct or cause the direction of the management and
policies of such Person, whether through ownership of voting securities or by contract or
otherwise.



     “Aggregate Commitments” means the Commitments of all the Lenders, which as of the
Closing Date is $1,500,000,000, as such amount may be adjusted or reduced from time to time
pursuant to the terms and conditions hereof.



     “Applicable Percentage” means, with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time. If the Commitment of each Lender to make Revolving Advances and the
obligation of the Issuing Lenders to issue Letters of Credit and Bankers Acceptances have been
terminated pursuant to Section 6.02 or if the 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 1.01(a)
or in the Assignment and Assumption Agreement pursuant to which such Lender becomes a party hereto,
as applicable.



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



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Applicable Rate for Eurodollar Rate
	 	 	 	 	 	 	 	 	Revolving Advances, Bankers Acceptances and
	 	 	 	 	 	 	 	 	Letters of Credit (other than Performance
	 	 	 	 	 	 	 	 	Letters of Credit and Documentary Letters of
	 	 	 	 	 	 	Applicable Rate for	 	Credit)
	 	 	 	 	 	 	Performance Letters	 	 	 	Utilization
	 	 	 	 	 	 	of Credit and	 	Utilization	 	Percentage greater
	Pricing	 	Ratings	 	Applicable Rate for	 	Documentary Letters	 	Percentage less	 	than or equal to
	Level	 	S&P/Moody’s	 	Commitment Fees	 	of Credit	 	than 50.0%	 	50.0%
	1

	 	A/A2 or better
	 	6.0 basis points
	 	22.5 basis points
	 	25.0 basis points
	 	30.0 basis points
	 
	 	 	 	 	 	 	 	 	 	 
	2

	 	A-/A3
	 	7.0 basis points
	 	27.5 basis points
	 	30.0 basis points
	 	35.0 basis points
	 
	 	 	 	 	 	 	 	 	 	 
	3

	 	BBB+/Baa1
	 	8.0 basis points
	 	35.75 basis points
	 	37.5 basis points
	 	47.5 basis points
	 
	 	 	 	 	 	 	 	 	 	 
	4

	 	BBB/Baa2 or worse
	 	12.0 basis points
	 	47.5 basis points
	 	52.5 basis points
	 	62.5 basis points







“Rating” means, as of any date of determination, the rating as determined by
either S&P or Moody’s (collectively, the “Ratings”) of the Borrower’s
non-credit-enhanced, senior unsecured long-term debt; provided that (a) if the
respective Ratings issued by the foregoing rating agencies differ by one level, then the
Pricing Level for the higher of such



2









 







Ratings shall apply (with the Rating for Pricing Level
1 being the highest and the Rating for Pricing Level 4 being the lowest); (b) if there is a
split in Ratings of more than one level, then the Pricing Level that is one level higher
than the Pricing Level of the lower Rating shall apply; (c) if the Borrower has only one
Rating, the Pricing Level for that Rating shall apply; and (d) if the Borrower does not
have any Rating, Pricing Level 4 shall apply.


Initially, the Applicable Rate shall be determined based upon the Rating specified in the
certificate delivered pursuant to Section 3.01(a)(iv). Thereafter, each change in the
Applicable Rate resulting from a publicly announced change in the Rating shall be effective, in the
case of an upgrade or 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.




     “Application” means a letter of credit application in the standard form thereof
required by the applicable Issuing Lender for the issuance of letters of credit generally.



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



     “Assignment and Assumption Agreement” means an assignment and assumption agreement
entered into by a Lender and an assignee (with the consent of any party whose consent is required
by Section 8.06(b)), and accepted by the Administrative Agent, substantially in the form of
Exhibit B attached hereto or any other form approved by the Administrative Agent.



     “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 2.04(c), and (c) the date of termination of the commitment of each
Lender to make Revolving Advances and of the obligation of the Issuing Lenders to issue Letters of
Credit and Bankers Acceptances pursuant to Section 6.02.



     “Backing Letter of Credit” has the meaning specified in Section 2.07(b).



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



     “Bankers Acceptance” means a time draft in respect of a Documentary Letter of Credit
drawn on an Issuing Lender and accepted by an Issuing Lender.



     “Base Rate” means, for any day, a rate per annum equal to the higher of:




     (a) the prime commercial lending rate of interest established by BNPP in New York, New
York from time to time as its prime rate; or




     (b) the sum of one-half of one-percent (1/2%) plus the Federal Funds Rate for such
day.



     “Base Rate Revolving Advance” means a Revolving Advance that bears interest as
provided in Section 2.05(a).



3









 





     “BNPP” means BNP Paribas and its successors.



     “Borrower” has the meaning specified in the preamble to this Agreement.



     “BTMU” means The Bank of Tokyo-Mitsubishi UFJ, Ltd. and its successors.



     “Business Day” means any day except a Saturday, Sunday or other day on which
commercial banks in the States of California, Texas or New York are authorized or required by law,
regulation or executive order to close; provided, however, that when used in
connection with a Eurodollar Rate Revolving Advance, the term “Business Day” does not include any
day on which banks are not open for dealings in Dollar deposits in the London interbank market.



     “Citicorp” means Citicorp USA, Inc. and its successors.



     “Closing Date” means September 7, 2006.



     “Code” means the Internal Revenue Code of 1986, as amended, or any successor statute.



     “Co-Documentation Agents” means each of Bank of America and BTMU, in their capacities
as co-documentation agents, and their respective successors in such capacities.



     “Commitment” means, at any time, for any Lender, the amount set forth opposite such
Lender’s name on Schedule 1.01(a) hereto under the heading “Commitment” or in the
Assignment and Assumption Agreement pursuant to which such Lender becomes a party hereto, as such
amount may be adjusted from time to time pursuant to the terms and conditions hereof.



     “Computation Date” has the meaning specified in Section 2.12(b).



     “Consolidated Debt” means, at any date, the total Debt of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date; provided,
that Consolidated Debt of the Borrower and its Consolidated Subsidiaries shall exclude Debt of
variable interest entities which is identified (as required by and referenced in FASB
Interpretation No. 46, Consolidation of Variable Interest Entities (January 2003), as may
be modified or supplemented) by separate line item in the balance sheet of the Borrower and its
Consolidated Subsidiaries as non-recourse to the Borrower and its Subsidiaries.



     “Consolidated Subsidiary” means any Subsidiary or other entity the accounts of which,
at any date, would be, in accordance with GAAP, consolidated with those of the Borrower in its
consolidated financial statements as of such date.



     “Consolidated Tangible Net Worth” means, at any date, the consolidated stockholders’
equity of the Borrower and its Consolidated Subsidiaries less their consolidated Intangible Assets,
all determined as of such date in accordance with GAAP. For purposes of this definition
“Intangible Assets” means the amount (to the extent reflected in determining such
consolidated stockholders’ equity) of (i) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of assets of a going concern business made within
twelve months after the acquisition of such business) in the book value of any asset owned by the
Borrower or a Consolidated Subsidiary, and (ii) all unamortized debt discount and expense,
unamortized



4









 







deferred charges, goodwill, patents, trademarks, service marks, trade names,
copyrights, organization or developmental expenses and other intangible items.



     “Controlled Group” means all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of the Code.



     “Credit Party” means each of the Administrative Agent, each Issuing Lender, each
Lender and their respective successors and assigns, and “Credit Parties” means all such
Persons, collectively.



     “Debt” of any Person means, at any date, without duplication, (i) all indebtedness of
such Person for borrowed money which would be classified as a liability of such Person in
accordance with GAAP on such Person’s balance sheets, (ii) all obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments (except for notes relating to self
insurance programs of such Person and/or its Subsidiaries which are not classified as current
liabilities of such Person or any of its Subsidiaries) which would be classified as a liability of
such Person in accordance with GAAP on such Person’s balance sheets, (iii) all obligations of such
Person to pay the deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business and foreign exchange transactions, (iv) all obligations
of such Person as lessee under capital leases, (v) all obligations of such Person to purchase
securities (or other property) which arise out of or in connection with the sale of the same or
substantially similar securities or property, which obligations or any portion thereof may, in
accordance with their terms, become due on or before the Maturity Date, (vi) all non-contingent
obligations of such Person to reimburse any bank or other Person in respect of amounts actually
paid under a letter of credit, a bankers acceptance or similar instrument, (vii) all Debt of others
secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person,
(viii) all Debt of others Debt Guaranteed by such Person, and (ix) all payment obligations of such
Person under any interest rate protection agreement (including, without limitation, any interest
rate swaps, caps, floors, collars and similar agreements). Notwithstanding anything to the contrary
contained herein, “Debt” of the Borrower and its Consolidated Subsidiaries shall exclude Debt of
variable interest entities which is identified (as required by and referenced in FASB
Interpretation No. 46, Consolidation of Variable Interest Entities (January 2003), as may
be modified or supplemented) by separate line item in the balance sheet of the Borrower and its
Consolidated Subsidiaries as non-recourse to the Borrower and its Subsidiaries.



     “Debt Guarantee” by any Person means any obligation, contingent or otherwise, of such
Person directly or indirectly guaranteeing any Debt of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt
(whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any other manner the
obligee of such Debt of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided that the term “Debt Guarantee” shall not include
endorsements for collection or deposit in the ordinary course of business. The term “Debt
Guarantee” used as a verb has a corresponding meaning.



5









 





     “Default” means any condition or event which constitutes an Event of Default or which
with the giving of notice or lapse of time or both would, unless cured or waived, become an Event
of Default.



     “Documentary Letter of Credit” has the meaning specified in Section 2.07(b).



     “Dollar Equivalent” means, at any time for the determination thereof, the amount of
Dollars which could be purchased with the amount of the relevant Foreign Currency by the
Administrative Agent (in accordance with normal banking procedures) at the spot exchange rate
therefor at about 12:00 noon (San Francisco time) on such date of determination.



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



     “Environmental Laws” means any and all federal, state, local and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions relating to the environment, or
to emissions, discharges or releases of pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes into the environment, including,
without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or
hazardous substances or wastes or the clean-up or other remediation thereof.



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



     “Escalating LC” means each Letter of Credit that, by its terms or the terms of the
Application related thereto, provides for one or more increases in the stated amount thereof.



     “euro” means the single currency of participating member states of the European Union.



     “Eurocurrency Liabilities” has the meaning specified in Regulation D of the FRB, as in
effect from time to time.



     “Eurodollar Rate” means, for any Interest Rate Determination Date with respect to any
Eurodollar Rate Revolving Advances for any Interest Period therefor, an interest rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the rate per annum obtained by
dividing (i) (a) the rate per annum determined by the Administrative Agent by reference to the
British Bankers’ Association Interest Settlement Rates for deposits (for delivery on the first day
of such period) with a term equivalent to such period in Dollars, determined as of approximately
11:00 a.m. (London, England time) on such Interest Rate Determination Date (as set forth by
Bloomberg Information Service or any successor thereto or any other service selected by
Administrative Agent which has been nominated by the British Bankers’ Association as an authorized
information vendor for the purpose of displaying such rates), or (b) in the event the rate
referenced in the preceding clause (a) is not available, the rate per annum equal to the offered
quotation rate to first class banks in the London interbank market by BNPP for deposits (for
delivery on the first day of the relevant period) in Dollars of amounts in same day funds
comparable to the principal amount of the applicable Revolving Advance of the Administrative



6









 







Agent,
in its capacity as a Lender, for which the Eurodollar Rate is then being determined with maturities
comparable to such period as of approximately 11:00 a.m. (London, England time) on such Interest
Rate Determination Date, by (ii) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period.



     “Eurodollar Rate Revolving Advance” has the meaning specified in Section
2.05(b).



     “Eurodollar Rate Reserve Percentage” means, with respect to any Interest Period for
any Eurodollar Rate Revolving Advance, the reserve percentage applicable on the Interest Rate
Determination Date under regulations issued from time to time by the FRB (or any successor) for
determining the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System
in New York City with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Revolving Advances is determined) having a
term equal to such Interest Period.



     “Event of Default” has the meaning specified in Section 6.01.



     “Excess” has the meaning specified in Section 2.12(b).



     “Exchange Equivalent” means, at any time for the determination thereof, with respect
to any amount (the “Original Amount”) of Dollars, the amount of any relevant Foreign
Currency which would be required to buy the Original Amount of Dollars by the Administrative Agent
(in accordance with normal banking procedures) at the spot exchange rate therefor at about 12:00
noon (San Francisco time) on such date of determination.



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



     “Existing Lenders” has the meaning specified in the recitals hereto.



     “Existing Letter of Credit” means each of the letters of credit described by date of
issuance, amount, beneficiary and the date of expiry on Schedule 1.01(b) hereto.



     “Expiration Date” has the meaning specified in Section 2.07(b).



     “Federal Funds Rate” means, for any day (the “accrual date”), the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) 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 the accrual date, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (i) if the accrual date is not
a Business Day, the Federal Funds Rate for the accrual date shall be such rate on such transactions
on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if
no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for the
accrual date shall be the average rate quoted to BNPP on the accrual date (or next preceding
Business Day) on such transactions as determined by the Administrative Agent.



7









 





     “Fee Letter” means that certain letter agreement among BNPP, BNP Paribas Securities
Corp. and the Borrower dated as of July 26, 2006, as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time.



     “Financial Letter of Credit” has the meaning specified in Section 2.07(b).



     “Foreign Currency” means Pounds Sterling, euro, Japanese Yen, Australian Dollar, New
Zealand Dollar, Mexican Peso, Canadian Dollar, Chilean Peso, Singapore Dollar, Chinese Yuan and/or
any other currency acceptable to the applicable Issuing Lender, as the context requires.



     “Foreign Lender” has the meaning specified in Section 2.16(b).



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



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



     “GAAP” means generally accepted accounting principles consistent with those applied in
the preparation of the financial statements referred to in Section 4.04(a) as of and for
the fiscal year ended December 31, 2005.



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government and any court or arbitrator.



     “Industry Standards” has the meaning specified in Section 5.03(b).



     “Information” has the meaning specified in Section 8.10.



     “Interest Period” has the meaning specified in Section 2.05(b).



     “Interest Rate Determination Date” means, with respect to any Interest Period, the
date that is two Business Days prior to the first day of such Interest Period.



     “Interest Type” refers to the distinction between Revolving Advances bearing interest
at the Base Rate and Revolving Advances bearing interest at the Eurodollar Rate.



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



     “Issuing Lender” means each of BNPP, Bank of America, Citicorp and BTMU, each in its
capacity as an issuer of Letters of Credit and Bankers Acceptances hereunder, and their respective
successors and, with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and at the request of the Borrower, any other Lender (and its successors)
that agrees to be an Issuing Lender hereunder, in its capacity as issuer of one or more



8









 







Letters of
Credit and Bankers Acceptances hereunder, and the term “Issuing Lenders” means all such
Persons, collectively.



     “Joint Lead Arranger” means each of Banc of America Securities LLC and BNP Paribas
Securities Corp., in their capacities as joint lead arrangers, and their respective successors in
such capacities.



     “Joint Venture” means any joint venture, partnership or other minority-owned entity
(other than a Subsidiary) in which the Borrower or any of its Subsidiaries or other Affiliates owns
an interest.



     “LC Disbursement” means a payment made by any Issuing Lender pursuant to a Letter of
Credit or a Bankers Acceptance.



     “LC Exposure” means at any time, the sum of (i) the aggregate undrawn amount of all
Letters of Credit at such time (provided that, with respect to any Escalating LC, other
than for purposes of calculating the Utilization Percentage, such available amount shall equal the
maximum amount (after giving effect to all possible increases) available to be drawn under such
Escalating LC) plus (ii) the aggregate amount of all LC Disbursements that have not yet
been reimbursed by or on behalf of the Borrower at such time plus (iii) the aggregate
amount of all Bankers Acceptances at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such
Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be
drawn.



     “Lender” means each Person listed on Schedule 1.01(a) and any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption Agreement (other
than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption
Agreement) and their successors and assigns.



     “Lender Addendum” means an instrument, substantially in the form of Exhibit G
attached hereto, by which a Lender that is not an Existing Lender becomes a party to this Agreement
as of the Closing Date.



     “Lending Office” means, as to each Lender, its office located at its address set forth
on the signature pages hereof (or identified on the signature pages hereof or of the applicable
Lender Addendum as its Lending Office), or such office as may be set forth as a Lending Office of a
Lender in any Assignment and Assumption Agreement accepted by the Administrative Agent pursuant to
Section 8.06(b), or such other office as such Lender may hereafter designate as its Lending
Office by notice to the Borrower and the Administrative Agent.



     “Letter of Credit” means (a) a letter of credit denominated in Dollars or in a Foreign
Currency issued pursuant to this Agreement, which letter of credit is in a form reasonably
acceptable to the applicable Issuing Lender, and (b) any Existing Letter of Credit, in each case as
such letter of credit may be amended, modified, extended, renewed or replaced from time to time, in
each case in accordance with this Agreement. A Letter of Credit may be a commercial letter of
credit or a standby letter of credit (including those referred to in Section 2.07(b)).



9









 





     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset. For the purposes of this Agreement,
the Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such asset.



     “Loan Documents” means this Agreement, each Application, each Letter of Credit, each
Bankers Acceptance, each Revolving Note, the Fee Letter, any security or collateral documents to be
delivered thereunder and any other documents or certificates to be delivered thereunder or in
connection therewith and all amendments thereto and substitutions and replacements therefor and
modifications thereof.



     “Material Adverse Change” means any material and adverse change in the business,
assets, liabilities (actual or contingent), operations, condition (financial or otherwise) or
prospects of the Borrower and its Consolidated Subsidiaries (taken as a whole) since December 31,
2005 which could reasonably be expected to materially and adversely affect the ability of the
Borrower to perform its obligations under the Loan Documents at any time up to and including the
Maturity Date.



     “Material Plan” has the meaning specified in Section 6.01(i).



     “Material Subsidiary” means at any time a Subsidiary which as of such time meets the
definition of a “significant subsidiary” contained as of the date hereof in Regulation S-X of the
SEC.



     “Maturity Date” means that date which is five years after the Closing Date;
provided, however, that if such date is not a Business Day, the Maturity Date shall
be the next preceding Business Day.



     “Maximum Rate” has the meaning specified in Section 8.18.



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



     “Notice of Conversion/Continuation” means a notice substantially in the form of
Exhibit E attached hereto.



     “Notice of Revolving Borrowing” means a notice substantially in the form of
Exhibit D attached hereto.



     “Obligations” means the collective reference to all obligations and liabilities of the
Borrower to the Credit Parties (including, without limitation, the reimbursement obligations
payable hereunder and all other obligations and liabilities of the Borrower in respect of any
Letter of Credit, any Bankers Acceptance and any Revolving Advance and interest thereon as provided
for herein, and interest accruing at the then applicable rate provided in this Agreement after the
maturity of such obligations and liabilities and interest accruing at the then applicable rate
provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding), whether direct or
indirect,



10









 







absolute or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any other Loan Document or
any other document made, delivered or given in connection herewith or therewith, in each case
whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the
Administrative Agent, the Joint Lead Arrangers, the Sole Book Manager, the Issuing Lenders or the
Lenders that are required to be paid by the Borrower pursuant to the terms of this Agreement or any
other Loan Document).



     “Patriot Act” has the meaning specified in Section 8.20.



     “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.



     “Performance Letter of Credit” has the meaning specified in Section 2.07(b).



     “Permitted Investments” means, as at any date of determination, (i) marketable
securities (a) issued or directly and unconditionally guaranteed as to interest and principal by
the United States Government or (b) issued by any agency of the United States the obligations of
which are backed by the full faith and credit of the United States, in each case maturing no more
than one year after such date; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public instrumentality
thereof, in each case maturing no more than one year after such date and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii)
commercial paper maturing no more than one year from the date of creation thereof and having, at
the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody’s; (iv) certificates of deposit or bankers’ acceptances maturing no more than one year after
such date or overnight bank deposits, in each case issued, accepted by or of any Lender, or any
commercial bank organized under the laws of the United States of America or any state thereof or
the District of Columbia that (a) is at least “adequately capitalized” (as defined in the
regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as defined in
such regulations) of not less than $100,000,000; and (v) shares of any money market mutual fund
that (a) has its assets invested primarily and continuously in the types of investments referred to
in clauses (i) and (iv) above, and (b) has net assets of not less than
$500,000,000.



     “Person” means an individual, a corporation, a partnership, a limited liability
company, an association, a trust or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.



     “Plan” means at any time an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the Code and is either
(i) maintained by the Borrower or any Subsidiary for employees of the Borrower or any Subsidiary or
(ii) maintained pursuant to a collective bargaining agreement or any other arrangement under which
more than one employer makes contributions and to which the Borrower or any Subsidiary is then
making or accruing an obligation to make contributions or has within the preceding five plan years
made contributions.



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



11









 





     “Regulation U” means Regulation U of the FRB, as in effect from time to time.



     “Related Entity” has the meaning specified in Section 2.07(b).



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



     “Required Lenders” means, at any time, Lenders having more than 50% of the Aggregate
Commitments or, if the commitment of each Lender to make Revolving Advances and the obligation of
the Issuing Lenders to issue Letters of Credit and Bankers Acceptances hereunder have been
terminated pursuant to Section 6.02, Lenders holding in the aggregate more than 50% of the
aggregate outstanding amount of all Revolving Advances and all LC Exposure (with the aggregate
amount of each Lender’s risk participation in LC Exposure being deemed “held” by such Lender for
purposes of this definition).



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



     “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Advances
of the same Interest Type and, in the case of Eurodollar Rate Revolving Advances, having the same
Interest Period, made by the Lenders pursuant to Section 2.01.



     “Revolving Note” means a promissory note made by the Borrower in favor of a Lender
evidencing Revolving Advances made by such Lender, substantially in the form of Exhibit F
attached hereto.



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



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



     “Sole Book Manager” means Banc of America Securities LLC, in its capacity as sole book
manager, and its successors in such capacity.



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



     “Syndication Agent” means Citicorp USA, Inc., in its capacity as syndication agent,
and its successors in such capacity.



     “Taxes” has the meaning specified in Section 2.16(a).




12









 





     “UCC” means the Uniform Commercial Code as in effect from time to time under the laws
of the State of New York.



     “Unfunded Vested Liabilities” means, with respect to any Plan at any time, the amount
(if any) by which (i) the present value of all vested nonforfeitable benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable to such benefits, all determined as
of the then most recent valuation date for such plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the PBGC or the Plan under
Title IV of ERISA.



     “Unused Commitment” means, with respect to any Lender at any time, (a) such Lender’s
Commitment at such time, minus (b) the sum of (i) the aggregate principal amount of all
Revolving Advances of such Lender outstanding at such time, plus (ii) such Lender’s LC
Exposure outstanding at such time.



     “Utilization” means, on any date, the sum of (i) the aggregate principal amount of all
Revolving Advances outstanding at such time, plus (ii) the total LC Exposure outstanding at
such time.



     “Utilization Percentage” means, on any date, the quotient of (i) the Utilization on
such date, divided by (ii) the Aggregate Commitments on such date.



          SECTION 1.02. Other Definitional Provisions.




               (a) All terms defined in this Agreement shall have the meanings given such terms herein when
used in the Loan Documents or any certificate, opinion or other document made or delivered pursuant
hereto or thereto, unless otherwise defined therein.



               (b) As used in the Loan Documents and in any certificate, opinion or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section 1.01, and
accounting terms partly defined in Section 1.01, to the extent not defined, shall have the
respective meanings given to them under GAAP.



               (c) The words “hereof”, “herein”, “hereto” and “hereunder” and similar words when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, schedule and exhibit references contained herein shall refer to Sections
hereof or schedules or exhibits hereto unless otherwise expressly provided herein.



               (d) The word “or” shall not be exclusive; “may not” is prohibitive and not permissive.



               (e) Unless the context otherwise requires, words in the singular number include the plural,
and words in the plural include the singular.



               (f) Unless specifically provided in a Loan Document to the contrary, references to time shall
refer to San Francisco time.



13









 





ARTICLE II




REVOLVING ADVANCES AND LETTERS OF CREDIT




          SECTION 2.01. Revolving Advances.




               (a) Subject to the terms and conditions set forth herein, each Lender severally agrees to make
advances in Dollars (each a “Revolving Advance”) to the Borrower from time to time on any
Business Day during the Availability Period, in an amount for each such Revolving Advance not to
exceed such Lender’s Unused Commitment on such Business Day; provided that at no time shall
the aggregate outstanding principal amount of the Revolving Advances of all of the Lenders
plus the aggregate LC Exposure (or the Dollar Equivalent thereof (calculated as of the date
of the requested Revolving Advance and any other applicable date of determination)) of all of the
Lenders exceed the Aggregate Commitments.



               (b) Each Revolving Borrowing shall be in an aggregate amount of $3,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall consist of Revolving Advances made by the
Lenders ratably according to their respective Commitments. Within the foregoing limits, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.04 and
reborrow under this Section 2.01.



          SECTION 2.02. Making the Revolving Advances.




               (a) Each Revolving Advance. Each Revolving Borrowing shall be made in Dollars on
notice received by the Administrative Agent from the Borrower (pursuant to a Notice of Revolving
Borrowing) not later than 10:00 a.m. (San Francisco time): (i) on the Business Day prior to the
date of such Revolving Borrowing if such Revolving Borrowing consists of Base Rate Revolving
Advances, and (ii) on the third Business Day prior to the date of such Revolving Borrowing if such
Revolving Borrowing consists of Eurodollar Rate Revolving Advances. Each such Notice of Revolving
Borrowing shall be irrevocable upon receipt by the Administrative Agent.



               (b) Revolving Advances by Lenders. If the Administrative Agent receives a Notice of
Revolving Borrowing, the Administrative Agent shall promptly (and in any event not later than 1:00
p.m. (San Francisco time) on the Business Day prior to the date of such Revolving Borrowing or, if
such Revolving Borrowing consists of Eurodollar Rate Revolving Advances, the third Business Day
prior to the date of such Revolving Borrowing) give each Lender notice of such Notice of Revolving
Borrowing. Each Lender shall, before 11:30 a.m. (San Francisco time) on the date of such Revolving
Borrowing in the case of any Revolving Borrowing to be made on such date, make available for the
account of its Lending Office to the Administrative Agent such Lender’s ratable portion of such
Revolving Borrowing by depositing immediately available funds in Dollars in the Administrative
Agent’s Account. Unless the Administrative Agent shall have received written notice from a Lender
prior to the date of any Revolving Borrowing hereunder that such Lender will not make available to
the Administrative Agent such Lender’s ratable portion of such Revolving Borrowing, the
Administrative Agent may assume that such Lender has made such ratable portion available to the
Administrative Agent on the date of such Revolving Borrowing in accordance with the terms hereof
and the Administrative Agent may, in reliance upon such assumption, but shall not be required to,
make available to or for the account



14









 




of the Borrower on such date a corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the Administrative Agent and the
Administrative Agent makes such ratable portion available to the Borrower, such Lender and the
Borrower, without prejudice to any rights or remedies that the Borrower may have against such
Lender, severally agree to repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is made available to
or for the account of the Borrower until the date such amount is repaid to the Administrative
Agent, at (A) in the case of the Borrower, the interest rate applicable at the time to the
Revolving Advances comprising such Revolving Borrowing, and (B) in the case of such Lender, the
greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation. If such Lender shall pay to the
Administrative Agent such amount, such amount so paid shall constitute such Lender’s Revolving
Advance as part of the relevant Revolving Borrowing for purposes of this Agreement and, to the
extent that the Borrower previously paid such amount to the Administrative Agent, the
Administrative Agent will refund to the Borrower such amount so paid, but without interest.




               (c) Disbursement of Revolving Advances. Upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make funds for any Revolving
Borrowing available to the Borrower by crediting such amount to the account designated by the
Borrower in the applicable Notice of Revolving Borrowing, subject to the Administrative Agent’s
receipt of funds from the Lenders, and provided that the Administrative Agent shall first make a
portion of such funds equal to any outstanding LC Disbursement under any Letter of Credit or any
Bankers Acceptance, and any interest accrued and unpaid thereon to and as of such date, available
to the applicable Issuing Lender for reimbursement of such LC Disbursement and payment of such
interest.



          SECTION 2.03. Repayment of Revolving Advances. The Borrower shall repay to each
Lender (in accordance with the provisions of Section 2.14(a)) on the Maturity Date the
aggregate principal amount of all Revolving Advances owing to such Lender outstanding on the
Maturity Date.




          SECTION 2.04. Optional Prepayments of Revolving Advances; Voluntary Termination or
Reduction of Commitments.




               (a) Optional Prepayments. The Borrower may, upon prior notice to the Administrative
Agent (which shall be given not later than 10:00 a.m. (San Francisco time) on the day of prepayment
in the case of prepayment of Base Rate Revolving Advances and three Business Days in advance in the
case of prepayment of Eurodollar Rate Revolving Advances) stating the proposed date and aggregate
principal amount of the prepayment and the Interest Type of Revolving Advances to be prepaid (and
if such notice is given the Borrower shall), prepay in whole or in part, without premium or
penalty, the outstanding principal of Revolving Advances of such Interest Type, together with, in
the case of any prepayment of Eurodollar Rate Revolving Advances, interest thereon to the date of
such prepayment on the principal amounts prepaid (plus, in the case of prepayment of
Eurodollar Rate Revolving Advances prior to the end of the applicable Interest Period, any
additional amount for which the Borrower shall be obligated pursuant to Section 8.03(d));
provided, however, that each partial prepayment of Revolving
Advances shall be in an aggregate principal amount of not less than $3,000,000 or an integral
multiple of $1,000,000 in excess thereof.



15









 





               (b) Application of Prepayments. Prepayments of the Revolving Advances made pursuant
to this Section 2.04 shall be first applied to prepay LC Disbursements then
outstanding until such LC Disbursements are paid in full, and second applied to prepay
Revolving Advances then outstanding comprising part of the same Revolving Borrowings until such
Revolving Advances are paid in full. The amount remaining (if any) after the prepayment in full of
the Revolving Advances then outstanding shall be applied as set forth in Section 2.14(d).



               (c) Voluntary Termination or Reduction of Commitments. The Borrower may, upon notice
to the Administrative Agent, irrevocably 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. (San Francisco time) five Business
Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, and (iii)
the Borrower shall not terminate or reduce the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the sum of the aggregate LC Exposure (or the
Dollar Equivalent thereof) plus the aggregate outstanding principal amount of the Revolving
Advances of all of the Lenders would exceed the Aggregate Commitments. The Administrative Agent
will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each
Lender according to its Applicable Percentage. All fees accrued in respect of the Aggregate
Commitments until the effective date of any termination or reduction of the Aggregate Commitments
shall be paid on the effective date of such termination or reduction, as applicable.



          SECTION 2.05. Interest on Revolving Advances. The Borrower shall pay interest on the
unpaid principal amount of each Revolving Advance from the date of such Revolving Advance until
such principal is paid in full at the applicable rate set forth below.




               (a) Interest on Base Rate Revolving Advances. Except as otherwise provided in this
Agreement, the Borrower shall pay interest on the unpaid principal amount of each Base Rate
Revolving Advance, from the date of such Base Rate Revolving Advance until such principal amount is
paid in full, payable quarterly in arrears on the last Business Day of each March, June, September
and December, commencing on the first such date to occur after the Closing Date, and on the
Maturity Date, at a fluctuating interest rate per annum equal, subject to Section 2.05(d),
to the Base Rate in effect from time to time.



               (b) Interest Periods for Eurodollar Rate Revolving Advances. The Borrower may,
pursuant to Section 2.05(c), elect to have the interest on the principal amount of all or
any portion of any Revolving Advances made or to be made to the Borrower under Section
2.01, in each case ratably according to the respective outstanding principal amounts of
Revolving Advances owing to each Lender (each such principal amount owing to a Lender as to which
such election has been made being a “Eurodollar Rate Revolving Advance” owing to such
Lender), determined and payable for a specified period (an “Interest Period” for such
Eurodollar Rate
Revolving Advance) in accordance with Section 2.05(c), provided,
however, that the Borrower may not (i) make any such election with respect to any LC
Disbursements, or (ii) have more than ten Eurodollar Rate Revolving Advances owing to any Lender
outstanding at any one time. Each Interest Period shall be one, two, three, six or (if available
to all Lenders) nine or twelve months, at the Borrower’s election pursuant to Section
2.05(c); provided, however, that:



16









 





               (i) the first day of an Interest Period for any Eurodollar Rate Revolving Advance shall be
either the last day of any then current Interest Period for such Revolving Advance or, if there
shall be no then current Interest Period for such Revolving Advance, any Business Day;



               (ii) whenever the last day of any Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur on the next
succeeding Business Day; provided, however, that if such extension would cause the
last day of such Interest Period to occur in the next following month, the last day of such
Interest Period shall occur on the next preceding Business Day;



               (iii) whenever the first day of any Interest Period occurs on a day of the month for which
there is no numerically corresponding day in the calendar month that succeeds such initial calendar
month by the number of months equal to the number of months of such Interest Period, such Interest
Period shall end on the last Business Day of such succeeding calendar month; and



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



               (c) Interest on Eurodollar Rate Revolving Advances. The Borrower may from time to
time, on the condition that no Default or Event of Default has occurred and is continuing, and
subject to the provisions of Sections 2.05(b) and 2.05(e), elect to pay interest on
all or any portion of any Revolving Advances during any Interest Period therefor at a rate per
annum equal to the sum of the Eurodollar Rate for such Interest Period for such Revolving Advances
plus the Applicable Rate in effect from time to time, by notice, specifying the amount of
the Revolving Advances as to which such election is made (which amount shall aggregate at least
$3,000,000 or any multiple of $1,000,000 in excess thereof) and the first day and duration of such
Interest Period, received by the Administrative Agent before 10:00 a.m. (San Francisco time) three
Business Days prior to the first day of such Interest Period. If the Borrower has made such
election for Eurodollar Rate Revolving Advances for any Interest Period, the Borrower shall pay
interest on the unpaid principal amount of such Eurodollar Rate Revolving Advances during such
Interest Period, payable in arrears on the last day of such Interest Period and, in the case of any
Interest Period which is longer than three months, on each three-month anniversary of the first day
of such Interest Period, in each case at a rate equal, subject to Section 2.05(d), to the
sum of the Eurodollar Rate for such Interest Period for such Eurodollar Rate Revolving Advances
plus the Applicable Rate in effect from time to time during such Interest Period. On the
last day of each Interest Period for any Eurodollar Rate Revolving Advance, the unpaid principal
balance thereof shall automatically become and bear interest as a Base Rate Revolving Advance,
except to the extent that the Borrower has elected to pay interest on all or any portion of such
amount for a new Interest Period commencing on such day in accordance with this Section
2.05(c). Each notice by the Borrower under this Section 2.05(c) shall be irrevocable
upon receipt by the Administrative Agent.



               (d) Default Interest. Upon the occurrence and during the continuance of an Event of
Default, (i) interest shall accrue, after as well as before judgment, on any Revolving Advance then
outstanding at a rate that is 2% per annum in excess of the interest rate otherwise payable under
this Agreement with respect to such Revolving Advance (which, for the avoidance of doubt, shall
include the Applicable Rate); provided that, in the case of any Eurodollar Rate



17









 




Revolving Advance, upon the expiration of the Interest Period in effect at the time any such increase in
interest rate is effective such Eurodollar Rate Revolving Advance shall thereupon become a Base
Rate Revolving Advance and shall thereafter bear interest, after as well as before judgment, at a
rate which is 2% per annum in excess of the interest rate otherwise payable under this Agreement
for Base Rate Revolving Advances, (ii) letter of credit fees payable under Section 2.19(b)
shall accrue, after as well as before judgment, at a rate which is 2% per annum in excess of the
rate otherwise payable under this Agreement, and (iii) interest shall accrue, to the fullest extent
permitted by law, after as well as before judgment, and except as otherwise provided in Section
2.11 or clause (i) above, on any overdue principal, interest or other amounts payable hereunder
at a rate that is 2% per annum in excess of the interest rate otherwise payable under this
Agreement with respect to Base Rate Revolving Advances. Such interest and other amounts shall be
payable upon demand. Payment or acceptance of the increased rates of interest provided for in this
Section 2.05(d) is not a permitted alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the
Administrative Agent, any Lender or any other Credit Party.




               (e) Suspension of Eurodollar Rate Revolving Advances.



               (i) Illegality. Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or regulation shall make it
unlawful, or any central bank or other governmental authority shall assert that it is unlawful, for
any Lender to perform its obligations hereunder to make Eurodollar Rate Revolving Advances or to
continue to fund or maintain Eurodollar Rate Revolving Advances hereunder, then, on notice thereof
and demand therefor by such Lender to the Borrower through the Administrative Agent, (i) each
Eurodollar Rate Revolving Advance will automatically, upon such demand, convert into a Base Rate
Revolving Advance, and (ii) the obligation of the Lenders to make, or to convert Revolving Advances
into, Eurodollar Rate Revolving Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lender has determined that the circumstances causing such suspension
no longer exist.



               (ii) Other Circumstances. If, with respect to any Eurodollar Rate Revolving Advances,
(A) the Administrative Agent shall determine in good faith (which determination shall be
conclusive) that the Eurodollar Rate cannot be determined in accordance with the definition
thereof, or (B) the Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Revolving Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Revolving Advances for such
Interest Period, the Administrative Agent shall forthwith so notify the Borrower and the Lenders,
whereupon (i) each such Eurodollar Rate Revolving Advance will automatically, on the last day of
the then existing Interest Period therefor, convert into a Base Rate Revolving Advance and (ii) the
obligation of the Lenders to make, or to convert Revolving Advances into, Eurodollar Rate Revolving
Advances shall be suspended until the Administrative Agent shall notify the Borrower that such
Lenders have determined that the circumstances causing such suspension no longer exist.



               (f) Suspension on Event of Default. Upon the occurrence and during the continuance of
any Event of Default, (i) each Eurodollar Rate Revolving Advance will automatically, on the last
day of the then existing Interest Period therefor, convert into a Base



18









 




Rate Revolving Advance and
(ii) the obligation of the Lenders to make, or to convert Revolving Advances into, Eurodollar Rate
Revolving Advances shall be suspended.




          SECTION 2.06. Conversion and Continuation of Revolving Advances.




               (a) Optional. So long as no Default or Event of Default shall have occurred and then
be continuing, the Borrower shall have the option: (i) to convert at any time all or any part of
any Revolving Advance equal to $3,000,000 and integral multiples of $1,000,000 in excess of that
amount from one Interest Type comprising the same Revolving Borrowing into Revolving Advances of
the other Interest Type; provided, a Eurodollar Rate Revolving Advance may only be
converted on the expiration of the Interest Period applicable to such Eurodollar Rate Revolving
Advance unless the Borrower shall pay all amounts due under Section 8.03(d) in connection
with any such conversion; or (ii) upon the expiration of any Interest Period applicable to any
Eurodollar Rate Revolving Advance, to continue all or any portion of such Revolving Advance equal
to $3,000,000 and integral multiples of $1,000,000 in excess of that amount as a Eurodollar Rate
Revolving Advance. The Borrower shall deliver a Notice of Conversion/Continuation to the
Administrative Agent no later than 10:00 a.m. (San Francisco time) at least one Business Day in
advance of the proposed conversion date (in the case of a conversion to a Base Rate Revolving
Advance) and at least three Business Days in advance of the proposed conversion/continuation date
(in the case of a conversion to, or a continuation of, a Eurodollar Rate Revolving Advance).
Except as otherwise provided herein, a Notice of Conversion/Continuation for conversion to, or
continuation of, any Eurodollar Rate Revolving Advances shall be irrevocable and binding on the
Borrower and shall be subject to Section 8.03(d). Each conversion of Revolving Advances
comprising part of the same Revolving Borrowing shall be made ratably among the Lenders in
accordance with their applicable Commitments.



               (b) Mandatory. On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Revolving Advances comprising any Revolving Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $3,000,000, such Revolving Advances shall automatically
convert into Base Rate Revolving Advances.



          SECTION 2.07. Issuance of Letters of Credit and Creation of Bankers Acceptances




               (a) Letter of Credit Request. Subject to the terms and conditions set forth herein,
the Borrower may request the issuance of, and the Issuing Lender, in reliance on the agreements of
the Lenders set forth in Section 2.08 hereof, agrees to issue Letters of Credit for the
account of the Borrower or for the account of the Borrower on behalf of, or in support of
obligations of, any of the Borrower’s Subsidiaries or, in the case of Letters of Credit other than
Financial Letters of Credit, for the account of the Borrower on behalf of, or in support of
obligations of, any Joint Venture or any other Affiliate of the Borrower, at any time and from time
to time during the period from the Closing Date through the date that is seven Business Days prior
to the Maturity Date. To request the issuance of a Letter of Credit, the Borrower shall deliver to
the applicable Issuing Lender and the Administrative Agent (reasonably in advance of the requested
date of issuance, and, in any event, not less than five Business Days prior to such requested date of
issuance) a notice requesting the issuance of such Letter of Credit and specifying the date of
issuance (which shall be a Business Day), the address of the beneficiary thereof, the amount and



19









 




currency of such Letter of Credit, the type of such Letter of Credit (Performance Letter of Credit,
Backing Letter of Credit, Financial Letter of Credit or Documentary Letter of Credit) and such
other information as shall be necessary to prepare such Letter of Credit (and the Administrative
Agent shall promptly provide notice to each Lender of each issuance of a Letter of Credit
hereunder). To request the amendment of a Letter of Credit, the Borrower shall deliver to the
applicable Issuing Lender and the Administrative Agent (reasonably in advance of the requested date
of amendment, and, in any event, not less than three Business Days prior to such requested date of
amendment) a notice requesting the amendment of such Letter of Credit and specifying such other
information as shall be necessary to prepare such amendment (and the Administrative Agent shall
promptly provide notice to each Lender of each amendment of a Letter of Credit hereunder).
Notwithstanding anything to the contrary contained herein, no Issuing Lender shall issue or amend
any Letter of Credit or create any Bankers Acceptance if, after giving effect to such issuance,
amendment or creation, the aggregate LC Exposure (or the Dollar Equivalent thereof) plus
the aggregate outstanding principal amount of the Revolving Advances of all of the Lenders shall
exceed the Aggregate Commitments. The applicable Issuing Lender shall obtain confirmation of the
immediately preceding sentence in writing from the Administrative Agent prior to issuing or
amending any Letter of Credit or creating any Bankers Acceptance hereunder. All Existing Letters
of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions hereof. The Borrower’s reimbursement
obligations in respect of each Existing Letter of Credit, and each Lender’s participation
obligations in connection therewith, shall be governed by the terms of this Agreement.




               (b) Terms of Letters of Credit and Bankers Acceptance. Each Letter of Credit and each
Bankers Acceptance shall expire on an expiry date (such date being the “Expiration Date”)
not later than the seventh Business Day prior to the Maturity Date. In the event that the
applicable Issuing Lender’s office is closed on the applicable Expiration Date, such date shall be
extended to the next Business Day on which such office is open. Letters of Credit shall be issued
hereunder as follows: (a) to support the Borrower’s, its Subsidiaries’, its Affiliates’ and Joint
Ventures’ (such Subsidiaries, Affiliates and Joint Ventures, collectively, the “Related
Entities” and each, a “Related Entity”) performance under specific project engineering,
procurement, construction and maintenance contracts (each, a “Performance Letter of
Credit”), (b) to back bank guarantees issued by other banks to support such performance (each,
a “Backing Letter of Credit”) so long as the applicable Issuing Lender, in its sole
discretion, determines: (i) that such issuance is lawful and such Backing Letters of Credit qualify
as independent undertakings for regulatory purposes, and (ii) that such issuance does not violate
any terms or provisions of this Agreement, (c) financial standby Letters of Credit (each, a
“Financial Letter of Credit”), and (d) as commercial Letters of Credit (each, a
“Documentary Letter of Credit”); provided that all standby Letters of Credit must
qualify as performance-based or financial guarantee-type letters of credits under applicable rules
and regulations. Each Letter of Credit and each Bankers Acceptance shall be denominated in Dollars
or in a Foreign Currency. The face amount of any Letter of Credit or Bankers Acceptance shall not
be less than $100,000 (or the Exchange Equivalent thereof determined as of the date of issuance) or
such lesser amount as is acceptable to the applicable Issuing Lender. At no time shall the
aggregate outstanding principal amount of the Revolving Advances of all of the Lenders plus
the aggregate LC Exposure (or the Dollar
Equivalent thereof) of all of the Lenders exceed the Aggregate Commitments. The applicable
Issuing Lender shall not be under any obligation to issue or amend any Letter of Credit or create
any Bankers Acceptance if (i) the issuance or amendment of such Letter of Credit or creation of



20









 




any
Bankers Acceptance would violate one or more policies of the applicable Issuing Lender or (ii) any
order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to
enjoin or restrain the applicable Issuing Lender from issuing or amending such Letter of Credit or
creating such Bankers Acceptance, or any law applicable to such Issuing Lender or any request or
directive from any Governmental Authority with jurisdiction over such Issuing Lender shall
prohibit, or request that such Issuing Lender refrain from, the issuance of letters of credit
generally or the creation of bankers acceptances generally or such Letter of Credit or Bankers
Acceptance in particular. In the event of any inconsistency between the terms and conditions of
any Application delivered by the Borrower pursuant to Section 3.02 and the terms and
conditions of this Agreement, the terms and conditions of this Agreement shall control. The
applicable Issuing Lender will promptly deliver to the Administrative Agent a true and complete
copy of each Letter of Credit issued by it hereunder and each Bankers Acceptance created by it
hereunder and each amendment thereto.




               (c) Letters of Credit Issued on behalf of Related Entities. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of the Borrower on behalf of a Related Entity, the Borrower shall be unconditionally
obligated to reimburse the applicable Issuing Lender hereunder for any and all drawings under such
Letter of Credit or any Bankers Acceptance relating thereto. The Borrower will, at its expense,
promptly execute, acknowledge and deliver such further documents and do such other acts and things
as the Administrative Agent or the applicable Issuing Lender may reasonably request in order to
effect fully the purposes of this Section 2.07(c).



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



          SECTION 2.08. Participations in Letters of Credit and Bankers Acceptances.




               On the Closing Date with respect to each Existing Letter of Credit and upon the issuance of
any other Letter of Credit or the creation of any Bankers Acceptance (or upon a Person becoming a
Lender hereunder), in each case without any further action on the part of the Issuing Lenders or
the Lenders, the applicable Issuing Lender hereby grants to each Lender, and each Lender hereby
acquires from the applicable Issuing Lender, a participation in such Letter of Credit or Bankers
Acceptance equal to such Lender’s Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit or Bankers Acceptance, as applicable. In consideration and in
furtherance of the foregoing, each such Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the applicable Issuing Lender, such Lender’s
Applicable Percentage of each LC Disbursement made by the applicable Issuing Lender and not
reimbursed for any reason by the Borrower on the date due as provided in Section 2.09
hereof, or of any reimbursement payment required to be refunded to the Borrower for any reason.
Each Lender acknowledges and agrees that its obligation to acquire
participations and make payments pursuant to this paragraph in respect of each Letter of
Credit and each Bankers Acceptance is absolute and unconditional and shall not be affected by any
circumstance whatsoever (other than the issuance of any Letter of Credit or Bankers Acceptance



21









 




in
excess of the amounts described in Section 2.07(a) as of the date of issuance and other
than amendments to any Letter of Credit in violation of Section 8.05 to provide for an
Expiration Date subsequent to the Maturity Date), including the occurrence and continuance of a
Default or such participation or payment exceeding such Lender’s Commitments or the Aggregate
Commitments by reason of currency fluctuations, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.




          SECTION 2.09. Reimbursement in Respect of Letters of Credit and Bankers
Acceptances.




               (a) Reimbursement Obligations. If any Issuing Lender shall make any LC Disbursement,
such Issuing Lender shall notify the Borrower of such LC Disbursement, and the Borrower shall
reimburse such Issuing Lender in an amount equal to such LC Disbursement by paying such Issuing
Lender in Dollars an amount equal to such LC Disbursement (or the Dollar Equivalent thereof, as
applicable): (i) not later than 12:00 noon (San Francisco time) on the date that such LC
Disbursement is made by such Issuing Lender or (ii), if the Borrower shall have received notice of
such LC Disbursement later than 12:00 noon (San Francisco time) on any Business Day or on a day
that is not a Business Day, not later than 12:00 noon (San Francisco time) on the immediately
following Business Day. If the Borrower fails to make such payment under this paragraph at the
time specified in the preceding sentence, the applicable Issuing Lender shall notify each Lender
and the Administrative Agent of the applicable LC Disbursement, the payment in Dollars then due
from the Borrower in respect thereof and such Lender’s Applicable Percentage thereof. The amounts
set forth in such notice shall be conclusive absent manifest error. Upon the receipt of such
notice, (x) the Borrower shall be deemed to have submitted, as of the date that such LC
Disbursement is made, a Notice of Revolving Borrowing (and shall be deemed to have made
certifications, representations and warranties set forth therein) for a Revolving Advance
consisting of a Base Rate Revolving Advance in the amount of such LC Disbursement (or the Dollar
Equivalent thereof, as applicable), (y) if all terms and conditions set forth herein for making a
Revolving Advance (other than the receipt of a Notice of Revolving Borrowing) shall have been
satisfied, such Revolving Advance shall be made as provided in Sections 2.01 and
2.02 except that the amount of such Revolving Advance shall be disbursed to the applicable
Issuing Lender and (z) such Revolving Advance shall be subject to and governed by the terms and
conditions hereof. In the event a Revolving Advance is not made as provided in the immediately
preceding sentence for any reason (including as a result of any failure to fulfill the applicable
conditions set forth in Section 2.02 or Article III) or any Revolving Advance made
pursuant to the immediately preceding sentence is insufficient to reimburse the applicable Issuing
Lender for such LC Disbursement in full, each Lender shall forthwith pay to the applicable Issuing
Lender in Dollars its Applicable Percentage of the unreimbursed LC Disbursement. If any amount
required to be paid by any Lender in respect of an unreimbursed LC Disbursement pursuant to this
Section 2.09 is not made available to the applicable Issuing Lender by such Lender on the
date such payment is due (the “due date”), the applicable Issuing Lender shall be entitled to
recover from such Lender, on demand, such amount with interest thereon calculated from the due date
at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation. Promptly following receipt by
the applicable Issuing Lender of any payment from the Borrower
pursuant to this Section 2.09, to the extent that Lenders have made payments pursuant
to this Section 2.09 to reimburse such Issuing Lender, then such Issuing Lender shall
distribute such payment received from the Borrower to such Lenders as their interests may appear.
Any payment



22









 




made by a Lender pursuant to this paragraph to reimburse any Issuing Lender for any LC
Disbursement shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
Each Lender acknowledges and agrees that its obligations under this Section 2.09 shall
survive the payment by the Borrower of all LC Disbursements and any termination of this Agreement.
Without limiting the foregoing, in the event that any reimbursement of an LC Disbursement by the
Borrower to any Issuing Lender is required to be repaid to the Borrower (pursuant to a proceeding
in bankruptcy or otherwise), then the applicable Issuing Lender shall continue to be entitled to
recover from each Lender, on demand, the portion of such repaid amount as shall be determined in
accordance with this Section 2.09.




               (b) Obligations Absolute. Subject to the provisions of this Agreement, the Borrower’s
obligation to reimburse LC Disbursements as provided in Section 2.09(a) shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity
or enforceability of any Letter of Credit, any Bankers Acceptance or this Agreement, or any term or
provision therein or herein, (ii) any draft or other document presented under any Letter of Credit
or in respect of any Bankers Acceptance proving to be forged, fraudulent or invalid in any respect
or any statement therein being untrue or inaccurate in any respect, (iii) payment by any Issuing
Lender under any Letter of Credit or Bankers Acceptance against presentation of a draft or other
document that does not comply with the terms of such Letter of Credit or Bankers Acceptance, (iv)
the existence of any claim, setoff, defense or other right that the Borrower or any Subsidiary or
Affiliate thereof may at any time have against any beneficiary of any Letter of Credit, any Bankers
Acceptance, any Credit Party or any other Person, whether under this Agreement or any other related
or unrelated agreement or transaction, or (v) any other event or circumstance whatsoever, whether
or not similar to any of the foregoing, that might, but for the provisions of this Section
2.09, constitute a legal or equitable discharge of, or provide a right of setoff against, the
Borrower’s obligations hereunder. The Lenders, the Issuing Lenders and the Administrative Agent
shall not have any liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or the creation of any Bankers Acceptance or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit or
any Bankers Acceptance (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of any
Issuing Lender. The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the applicable Issuing Lender (as finally determined by a court
of competent jurisdiction), the Issuing Lender shall be deemed to have exercised care in each
determination relating to the foregoing. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented which appear on
their face to be in substantial compliance with the terms of any Letter of Credit or any Bankers
Acceptance, the applicable Issuing Lender may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation, regardless of any
notice or information to the contrary, or refuse to accept and make payment upon such documents if
such documents are not in strict compliance with the terms of such Letter of Credit or Bankers
Acceptance.



23









 





          SECTION 2.10. Disbursement Procedures for Letters of Credit and Bankers Acceptances;
Reporting.




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



               (b) Reporting. Each Issuing Lender shall, no later than the tenth Business Day
following the last day of each month, provide to the Administrative Agent (and the Administrative
Agent shall forward to the Lenders) schedules, in form and substance reasonably satisfactory to the
Administrative Agent, showing the date of issue, account party, applicable currency, amount in such
currency and Expiration Date for each Letter of Credit issued and each Bankers Acceptance created
by such Issuing Lender hereunder and outstanding at any time during such month.



          SECTION 2.11. Interest on LC Disbursements and Reimbursement of Other Amounts.




     In the event the Borrower fails to reimburse any applicable Issuing Lender in full for any LC
Disbursement by the time prescribed in Section 2.09(a) and a Revolving Advance is not made
as provided in Section 2.09(a) or any Revolving Advance made pursuant to Section
2.09(a) is insufficient to reimburse the applicable Issuing Lender for such LC Disbursement in
full, (i) the unpaid or unreimbursed amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, after as well as before judgment, at a rate per annum equal to the
Base Rate plus 2.0%, and (ii) the Borrower shall also reimburse the applicable Issuing
Lender upon demand for any losses incurred by such Issuing Lender in connection with changes in the
foreign exchange rates as a result of the Borrower’s failure to reimburse such LC Disbursement by
the time prescribed in Section 2.09(a). Interest accrued pursuant to this Section
2.11 shall be for the account of the applicable Issuing Lender, except that interest accrued on
and after the date of payment by any Lender pursuant to Section 2.09(a) to reimburse the
applicable Issuing Lender shall be for the account of such Lender to the extent of such payment.



          SECTION 2.12. Cash Collateralization.




               (a) Deposit of Collateral Upon an Event of Default. If any Event of Default shall
occur and be continuing, then on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Lenders, an amount in cash in Dollars equal
to the Dollar Equivalent of the aggregate LC Exposure as of such date plus any accrued and
unpaid fees thereon; provided that (i) the obligation to deposit such cash



24









 




collateral shall become effective immediately, and such deposit shall become immediately due
and payable, without demand or other notice of any kind, upon the occurrence of any Event of
Default described in paragraph (g) or (h) of Section 6.01 and (ii) the
Borrower shall be obligated, from time to time and upon demand by the Administrative Agent, to
deposit additional amounts into said account in cash in Dollars as necessary to maintain an amount
on deposit equal to the Dollar Equivalent of the total aggregate LC Exposure plus any
accrued and unpaid fees thereon (as determined at any time).




               (b) Deposit of Collateral for Foreign Exchange Differential. In addition to the
foregoing, if on any Computation Date (as defined below): the outstanding principal amount of
Revolving Advances plus the Dollar Equivalent of aggregate LC Exposure exceeds the
Aggregate Commitments (any such excess amount, the “Excess”) by, in any case, $10,000,000
or more, the Administrative Agent shall provide notice thereof to the Borrower and demand the
deposit of cash collateral pursuant to this paragraph. On the Business Day on which the Borrower
receives such notice, the Borrower shall deposit in an account with the Administrative Agent, in
the name of the Administrative Agent and for the benefit of the Lenders and the Issuing Lenders, an
amount in cash in Dollars equal to the full amount of such Excess; provided that the
Borrower shall be obligated, from time to time and upon demand by the Administrative Agent, to
deposit additional amounts into said account in cash in Dollars as necessary to maintain an amount
on deposit equal to the Excess (as determined at any time). The Administrative Agent shall produce
copies of any calculations or reports relating to the foregoing upon written request from the
Borrower or any Lender. The Administrative Agent may, and at the instruction of the Required
Lenders shall, undertake such calculations at any time; provided that in any event the
Administrative Agent shall undertake such calculations at least once per calendar quarter, and the
Administrative Agent shall not be required to undertake such calculations more frequently than once
per calendar month without its consent. Each day upon or as of which the Administrative Agent
undertakes the calculations described above in this Section 2.12(b) is referred to herein
as a “Computation Date”.



               (c) Cash Collateral Accounts. Each deposit under Section 2.12(a) and
2.12(b) shall be held by the Administrative Agent (subject to Section 7.09) as
collateral for the payment and performance of the obligations of the Borrower under this Agreement.
The Administrative Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. If required by the Administrative Agent, the Borrower shall enter
into any pledge or security agreement and UCC financing statement with respect to such cash
collateral in favor of the Administrative Agent as the Administrative Agent shall require. Such
deposits shall be invested in Permitted Investments selected by the Administrative Agent in its
sole discretion. All losses and expenses incurred as a result of such activities shall be for the
account of the Borrower. Interest or profits, if any, on such investments shall accumulate in such
accounts. Moneys in such accounts may be applied by the Administrative Agent (at its sole
discretion) (i) to reimburse each Issuing Lender for LC Disbursements for which it has not been
reimbursed; and (ii) to the extent not so applied, may be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or any other Obligations
or to cover any losses in respect of any Excess. If the Borrower is required to provide an amount
of cash collateral hereunder as a result of the occurrence of an Event of Default, and all Defaults
are subsequently cured or waived and no Excess is then in existence, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business Days after request
therefor by the Borrower. If the Borrower is required to provide an amount of cash collateral
hereunder as a



25









 




result of any Excess, and the Administrative Agent shall subsequently determine that the
amount of such Excess is equal to or less than the amount on deposit in respect of the existence of
such Excess, provided there is no Default then in existence, such excess amount of cash, if greater
than $1,000,000 (to the extent not applied as aforesaid), shall be returned to the Borrower within
three Business Days after request therefor by the Borrower.




               (d) Custody of Cash Collateral. Beyond the exercise of reasonable care in the custody
thereof and investment of cash collateral deposits pursuant to the terms hereof, the Administrative
Agent shall have no duty as to any cash collateral in its possession or control or in the
possession or control of any agent or bailee or any income thereon or as to the preservation of
rights against prior parties or any other rights pertaining thereto. The Administrative Agent
shall be deemed to have exercised reasonable care in the custody and preservation of the cash
collateral in its possession if the cash collateral is accorded treatment substantially equal to
that which it accords its own property and shall not be liable or responsible for any loss or
damage to any of the cash collateral or for any diminution in the value thereof by reason of the
act or omission of any agent or bailee selected by the Administrative Agent in good faith. All
expenses and liabilities incurred by the Administrative Agent in connection with taking, holding
and disposing of any cash collateral (including customary custody and similar fees with respect to
any cash collateral held directly by the Administrative Agent), shall be paid by the Borrower from
time to time upon demand.



          SECTION 2.13. Obligations.




     Anything in this Agreement to the contrary notwithstanding, each of the Borrower and each
Lender shall continue to be bound by all of its obligations hereunder, including without
limitation, its obligations under Sections 2.03, 2.08 and 2.09, until such
time as all outstanding Revolving Advances have been paid in full, each Letter of Credit has
expired, each Bankers Acceptance has expired and no further Obligation, LC Exposure or Commitment
exists.



          SECTION 2.14. General Provisions as to Payments.




               (a) Manner and Time of Payment. The Borrower shall make each payment hereunder
(including, without limitation, in respect of the LC Disbursements), and interest thereon, and all
fees due in respect of the transactions contemplated by this Agreement in Dollars in Federal or
other funds immediately available in San Francisco, to the Administrative Agent at its address
referred to in Section 8.01(a). Except as otherwise provided in Section
2.05(b)(ii), whenever any such payment shall be due on a day which is not a Business Day, the
date for payment thereof shall be extended to the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of payment of interest or additional
compensation. If the date for any payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such extended time. Any payment made by the
Borrower after 12:00 noon (San Francisco time) on any day shall be deemed to have been made on the
next Business Day for the purpose of calculating interest on amounts outstanding in respect of any
Obligations. All payments required to be made by the Borrower hereunder shall be made in Dollars
and shall be made without setoff or counterclaim.



               (b) Application of Payments to Principal and Interest. All payments in respect of the
principal amount of any Obligations hereunder shall include payment of accrued interest on



26









 




the principal amount being repaid or prepaid, and all such payments (and, in any event, any
payments in respect of any Obligations on a date when interest is due and payable with respect to
such Obligations) shall be applied to the payment of interest before application to principal.




               (c) Apportionment of Payments. The Administrative Agent will promptly distribute to
each Lender its ratable share of each payment received by the Administrative Agent which is for the
account of the Lenders.



               (d) Application of Funds. (i) All payments received from the Borrower by the
Administrative Agent which are not reasonably identifiable by the Administrative Agent shall be
applied by the Administrative Agent against the Obligations, and (ii) any amounts received on
account of the Obligations after the exercise of remedies provided for in Section 6.02 (or
after the Revolving Advances have automatically become immediately due and payable and the LC
Exposure has automatically been required to be cash collateralized as set forth in the proviso to
Section 6.02), in each case in the following order of priority: (A) to the payment of all
amounts for which the Administrative Agent is entitled to compensation, reimbursement and
indemnification under any Loan Document and all advances made by the Administrative Agent
thereunder for the account of the Borrower, and to the payment of all reasonable costs and expenses
paid or incurred by the Administrative Agent in connection with the Loan Documents, all in
accordance with Sections 7.06 and 8.03 and the other terms of this Agreement and
the Loan Documents; (B) thereafter, to the extent of any excess such proceeds, to the payment of
all other Obligations for the ratable benefit of the holders thereof (subject to the provisions of
Section 2.14(b) hereof); and (C) thereafter, to the extent of any excess such proceeds, to
the Borrower or as otherwise required by applicable law.



               (e) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Revolving Advances, to fund participations in Letters of Credit and Bankers Acceptances and to make
payments pursuant to Section 7.06 are several and not joint. The failure of any Lender to
make the Revolving Advance to be made by it as part of any Revolving Borrowing, to fund any such
participation or to make any payment under Section 7.06 on any date required hereunder
shall not relieve any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its Revolving Advance,
to purchase its participation or to make its payment under Section 7.06.



          SECTION 2.15. Computation of Interest and Fees.




     Interest on all amounts owed hereunder shall be computed on the basis of a year of 360 days,
except that interest computed by reference to the Base Rate (calculated at other than the Federal
Funds Rate) shall be computed on the basis of a year of 365 days or, if appropriate, 366 days, and
in each case all interest hereunder shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). All fees due and payable hereunder shall,
unless expressly otherwise provided for, be computed on the basis of a year of 360 days for the
actual number of days elapsed.



          SECTION 2.16. Taxes; Net Payments.




               (a) Net Payments. Any and all payments by the Borrower under this Agreement shall be
made free and clear of and without deduction for any and all current or future taxes,



27









 




levies, imposts, deductions, charges or withholdings and all liabilities with respect thereto
excluding (i) income taxes imposed on the net income of any Lender; and (ii) franchise
taxes imposed on the net income of any Lender, in each case by the jurisdiction under the laws of
which such Lender is organized, domiciled, resident or doing business or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually, “Taxes”). If the Borrower shall be required to
deduct any Taxes from or in respect of any sum payable hereunder to a Lender (i) the sum payable
shall be increased by the amount (an “additional amount”) necessary so that after making all
required deductions such Lender shall receive an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant governmental authority in accordance with
applicable law. Within 30 days after the date of any payment of Taxes pursuant to this
paragraph (a), the Borrower shall furnish to the Administrative Agent a receipt issued by
the relevant Governmental Authority or other evidence satisfactory to the Administrative Agent of
payment thereof. The Borrower will indemnify each Lender (subject to such Lender having complied
with paragraph (b) below) and hold each Lender harmless for the full amount of all Taxes
paid or payable by such Lender with respect to this Agreement and any and all amounts received by
such Lender hereunder, and any liability (including penalties, interest and expenses (including
reasonable attorneys fees and expenses)) arising therefrom or with respect thereto whether or not
such Taxes were correctly or legally asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability prepared by such Lender, absent manifest
error, shall be final, conclusive and binding for all purposes. The obligations of the Borrower
under this Section 2.16 shall survive the termination of this Agreement and the Commitments
and the payment of all amounts payable under the Loan Documents.




               (b) Evidence of Exemption from Withholding. Each Lender which is a foreign
corporation within the meaning of Section 1442 of the Code, including the Administrative Agent
acting as an intermediary or agent for such a Lender (each, a “Foreign Lender”), shall
deliver to the Borrower such certificates, documents or other evidence as the Borrower may
reasonably require from time to time as are necessary to establish that such Foreign Lender is not
subject to withholding under Section 1441 or 1442 of the Code or as may be necessary to establish,
under any law hereafter imposing upon the Borrower, an obligation to withhold any portion of the
payments made by the Borrower under the Loan Documents, that payments to the Administrative Agent
for the account of such Foreign Lender are not subject to withholding, in any event to include: (i)
two original copies of Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY, as appropriate (or
any successor forms), properly completed and duly executed by such Foreign Lender, and such other
documentation required under the Code and reasonably requested by the Borrower, to establish that
such Foreign Lender is not subject to deduction or withholding of United States federal income tax
with respect to any payments to such Foreign Lender of principal, interest, fees or other amounts
payable under any of the Loan Documents, or (ii) if such Foreign Lender is not a “bank” or other
Person described in Section 881(c)(3) of the Code and cannot deliver either Internal Revenue
Service Form W-8BEN (to the extent such form would document a claim or exemption from withholding
pursuant to an applicable income tax treaty) or W-8ECI or W-8IMY pursuant to clause (i) above, a
Certificate re Non-Bank Status together with two original copies of Internal Revenue Service Form
W-8BEN (or any successor form) (to the extent such forms document the status of the Foreign Lender
as other than a United States Person), properly completed and duly executed by such Foreign Lender,
and such other



28









 




documentation required under the Code and reasonably requested by the Borrower to establish
that such Foreign Lender is not subject to deduction or withholding of United States federal income
tax with respect to any payments to such Foreign Lender of principal, interest, fees or other
amounts payable under any of the Loan Documents. If the form provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States interest withholding
tax rate in excess of zero, interest withholding tax at such rate shall be considered excluded from
“Taxes” as defined in Section 2.16(a).




          SECTION 2.17. Increased Costs.




               (a) Change in Law, Etc. In the event that any law, regulation, treaty or directive
hereafter enacted, promulgated, approved or issued or any change in any currently existing law,
regulation, treaty or directive therein or in the interpretation or application thereof by any
Governmental Authority charged with the administration thereof or compliance by any Credit Party
(or any Person directly or indirectly owning or controlling such Credit Party) with any request or
directive, whether or not having the force of law, from any central bank or other Governmental
Authority, agency or instrumentality:



               (i) does or shall subject any Credit Party to any Taxes of any kind whatsoever with respect to
any Revolving Advances or its obligations under this Agreement to make, fund or maintain any
Revolving Advances or any Letter of Credit or Bankers Acceptance or participation therein, or its
obligations under this Agreement to issue a Letter of Credit or create a Bankers Acceptance or
participate therein, or change the basis of taxation of payments to any Credit Party of principal,
interest or any other amount payable hereunder in respect of any Letter of Credit or Bankers
Acceptance or participations therein, including any Taxes required to be withheld from any amounts
payable under the Loan Documents (except for imposition of, or change in the rate of, tax on the
overall net income of such Credit Party or its Lending Office by the jurisdiction in which such
Credit Party is incorporated or has its principal office or such Lending Office, including, in the
case of Credit Parties incorporated in any State of the United States such tax imposed by the
United States); or



               (ii) does or shall impose, modify or make applicable any reserve, special deposit, compulsory
loan, assessment, increased cost or similar requirement against assets held by, or deposits of, or
advances or loans by, or other credit extended by, or any other acquisition of funds by, any office
of such Credit Party in respect of any Eurodollar Rate Revolving Advance or any Letter of Credit or
Bankers Acceptance or participations therein (except any such reserve requirement reflected in the
definition of Eurodollar Rate);


and the result of any of the foregoing is to increase the cost to such Credit Party of agreeing to
make or of making, funding or maintaining Revolving Advances or of making, issuing, renewing,
creating or maintaining any Letter of Credit or Bankers Acceptance or participation therein, or its
commitment to lend or to issue or create any such Letter of Credit or Bankers Acceptance or
participate therein, or to reduce any amount receivable hereunder in respect of any Revolving
Advance or any Letter of Credit or any Bankers Acceptance or participation therein, then, in any
such case, the Borrower shall pay such Credit Party, upon its demand, any additional amounts
necessary to compensate such Credit Party for such additional cost or reduction in such amount
receivable which such Credit Party deems to be material as determined by such Credit Party. A
statement setting forth the calculations of any additional amounts payable pursuant to the




29









 







foregoing sentence submitted by a Credit Party to the Borrower shall be conclusive absent manifest
error. The obligations of the Borrower under this Section 2.17 shall survive the
termination of this Agreement and the Commitments and payment of the Obligations and all other
amounts payable under the Loan Documents. Failure to demand compensation pursuant to this
Section 2.17 shall not constitute a waiver of such Credit Party’s right to demand such
compensation. To the extent that any increased costs of the type referred to in this Section
2.17 are being incurred by a Credit Party and such costs can be eliminated or reduced by the
transfer of such Credit Party’s participation or Commitment to another of its branches, and to the
extent that such transfer is not inconsistent with such Credit Party’s internal policies of general
application and only if, as determined by such Credit Party in its sole discretion, the transfer of
such participation or Commitment, as the case may be, would not otherwise materially adversely
affect such participation or such Credit Party, the Borrower may request, and such Lender shall use
reasonable efforts to effect, such transfer.




               (b) Capital Adequacy. If after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Lending Office) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender’s capital as a consequence of its obligations hereunder to a level below that
which such Lender could have achieved but for such adoption, change or compliance (taking into
consideration such Lender’s policies with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, within 10 days after demand by such Lender (with a
copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction.



               (c) Notification. Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Lender to compensation pursuant to this Section 2.17. A certificate of
any Lender claiming compensation under this Section 2.17 and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.



          SECTION 2.18. Illegality.




     Notwithstanding anything herein to the contrary, no Issuing Lender shall at any time be
obligated to issue a Letter of Credit or create a Bankers Acceptance or agree to any extension or
amendment thereof if such issuance, creation, extension or amendment would conflict with, or cause
any Issuing Lender to exceed any limits imposed by, any law or requirements of any applicable
Governmental Authority.



          SECTION 2.19. Fees.




               (a) The Borrower agrees to pay to the Administrative Agent, for the account of each Lender in
accordance with its Applicable Percentage, a commitment fee equal to the product of the Applicable
Rate then in effect times the average daily amount by which (i) the Aggregate Commitments
in effect from time to time exceed (ii) the Utilization from time to time. The



30









 




commitment fee shall accrue at all times during the Availability Period, including at any time
during which one or more of the conditions in Article III is not met, and shall be payable
in arrears on the last Business Day of March, June, September and December of each year, commencing
on the first such date to occur after the Closing Date, and on the last day of the Availability
Period. Notwithstanding the foregoing or anything else contained in this Agreement to the
contrary, for purposes of calculating the LC Exposure in connection with determining the applicable
commitment fee, the parties hereto acknowledge and agree that to the extent any Escalating LC is
then issued and outstanding, the applicable commitment fee shall accrue at 150% of the commitment
fee which would be applicable solely by reference to the Applicable Rate multiplied by the
difference between (x) the maximum amount (after giving effect to all possible increases) available
to be drawn thereunder and (y) the amount then available to be drawn under such Escalating LC.




               (b) The Borrower agrees to pay to the Administrative Agent, for the account of each Lender in
accordance with its Applicable Percentage, a letter of credit fee, calculated daily with respect to
such Lender’s participations in Letters of Credit and or Bankers Acceptance issued hereunder, equal
to the product of (i) the Applicable Rate then in effect times (ii) the actual daily
maximum face or stated amount of each Letter of Credit or Bankers Acceptance outstanding (in the
case of any Escalating LC, such amount shall equal the amount then available to be drawn under such
Escalating LC). Letter of credit fees payable pursuant to this paragraph (b) shall be
payable in arrears on the last Business Day of March, June, September and December of each year,
commencing on the first such date to occur after the Closing Date; provided that all such
fees shall be payable on the date on which all Commitments terminate and any such fees accruing
after the date on which all Commitments terminate shall be payable on demand. The sum of each
daily calculation, if in a currency other than Dollars, shall be converted to the Dollar Equivalent
thereof on the date the applicable payment is due.



               (c) The Borrower agrees to pay directly to each Issuing Lender, for its own account, a
fronting fee (i) with respect to each Documentary Letter of Credit, at the rate separately agreed
upon between the Borrower and such Issuing Lender, computed on the amount of such Documentary
Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a
Documentary Letter of Credit increasing the amount of such Documentary Letter of Credit, at a rate
separately agreed between the Borrower and such Issuing Lender, computed on 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 separately agreed upon between the Borrower and
such Issuing Lender computed on the maximum face or stated amount of such Letter of Credit (in the
case of any Escalating LC, such amount shall equal the amount then available to be drawn under such
Escalating LC) on a quarterly basis in arrears. Such fronting fee payable to any Issuing Lender
pursuant to clause (iii) of the preceding sentence shall be payable in arrears on the last Business
Day of March, June, September and December of each year, commencing on the first such date to occur
after the Closing Date; provided that all such fees shall be payable on the date on which
all Commitments terminate and any such fees accruing after the date on which all Commitments
terminate shall be payable on demand. In addition, the Borrower shall pay directly to each Issuing
Lender, for its own account, such Issuing Lender’s standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder in the
amounts and at the times separately agreed upon.



31









 





               (b) In addition to any of the foregoing fees, the Borrower agrees to pay to the Administrative
Agent such other fees in the amounts and at the times separately agreed upon.



               (e) All fees payable hereunder shall be paid on the dates due, in Dollars and in immediately
available funds, to the Administrative Agent (or to the applicable Issuing Lender, in the case of
fees payable to it) for distribution, in the case of commitment fees and letter of credit fees, to
the Lenders. Fees paid shall not be refundable under any circumstances. Any fee not due on a
specific date shall be due on demand.



          SECTION 2.20. Evidence of Debt.




               (a) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Revolving Advance
made by such Lender, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.



               (b) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Revolving Advance made hereunder, the Interest Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.



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



               (d) Upon the request of any Lender made through the Administrative Agent, the Borrower shall
execute and deliver to such Lender (through the Administrative Agent) a Revolving Note, which shall
evidence such Lender’s Revolving Advances in addition to such accounts maintained pursuant to
paragraph (a) or (b) of this Section. Each Lender may attach schedules to its
Revolving Note and endorse thereon the date, Interest Type (if applicable), amount and maturity of
its Revolving Advances and payments with respect thereto.



          SECTION 2.21. Use of Proceeds.




     The proceeds of the Revolving Advances (other than any Revolving Advances made pursuant to
Section 2.09(a)) shall be available (and the Borrower agrees that it shall use such
proceeds) to provide working capital for the Borrower and its Subsidiaries and, subject to the
provisions of this Agreement and the other Loan Documents, for other general corporate purposes of
the Borrower and its Subsidiaries. No portion of the proceeds of any borrowing under this
Agreement shall be used by the Borrower or any of its Subsidiaries in any manner that might cause
the borrowing or the application of such proceeds to violate Regulation U or any other regulation
of the FRB or to violate the Securities Exchange Act of 1934, as amended from time to time, and any
successor statute, in each case as in effect on the date or dates of such borrowing and such use of
proceeds.



32









 





ARTICLE III




CONDITIONS PRECEDENT




          SECTION 3.01. Closing Date.




     The effectiveness of this Agreement is subject to the satisfaction of the following conditions
precedent:



               (a) Receipt of Documentation. The Administrative Agent shall have received:



               (i) (A) counterparts of this Agreement signed by the Borrower, the Administrative Agent and
each Existing Lender; and (B) a Lender Addendum, signed by each Lender with a Commitment as of the
Closing Date that is not an Existing Lender;



               (ii) a certificate, dated the Closing Date, of the Secretary or Assistant Secretary of the
Borrower, substantially in the form of Exhibit C: (A) attaching a true and complete copy of
the resolutions of its Board of Directors authorizing the execution and delivery of this Agreement
and the other Loan Documents by the Borrower and the performance of the Borrower’s obligations
thereunder, and of all other documents evidencing other necessary action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by it to authorize the Loan Documents
and the transactions contemplated thereby, (B) attaching a true and complete copy of its
certificate of incorporation and bylaws, (C) certifying that said certificate of incorporation and
bylaws are true and complete copies thereof, are in full force and effect and have not been amended
or modified, and (D) setting forth the incumbency of its officer or officers who may sign the Loan
Documents, including therein a signature specimen of such officer or officers;



               (iii) a certificate of good standing for the Borrower from the Secretary of State for the
State of Delaware, dated a recent date prior to the Closing Date; and



               (iv) a certificate, dated the Closing Date, signed by a senior vice president, the chief
financial officer or the treasurer of the Borrower to the effect set forth in paragraphs
(b) and (c) of Section 3.02 and certifying (A) that, as of the Closing Date,
there exists no Material Adverse Change and (B) the current Ratings.



               (b) Opinions. The Administrative Agent shall have received an opinion of counsel for
the Borrower, substantially in the form of Exhibit A, covering such matters relating to the
transactions contemplated hereby as the Administrative Agent may reasonably request, dated the
Closing Date.



               (c) Fees and Expenses Due to the Credit Parties. The Administrative Agent shall have
received all fees and expenses due and payable to the Administrative Agent, the Sole Book Manager,
the Joint Lead Arrangers and any other Credit Party.



               (d) Fees and Expenses of Special Counsel. The fees and expenses of Skadden, Arps,
Slate, Meagher & Flom LLP, special counsel to the Administrative Agent, the Sole Book



33









 




Manager and the Joint Lead Arrangers, in connection with the preparation, negotiation and
closing of the Loan Documents shall have been paid.




               (e) Payment of Amounts Under Existing Credit Agreement. The Administrative Agent
shall have received from the Borrower all accrued and unpaid fees and other amounts payable
(immediately prior to the effectiveness of this Agreement on the Closing Date) under the Existing
Credit Agreement.



          SECTION 3.02. Conditions to All Revolving Advances and Letters of Credit.




     The following conditions must be satisfied prior to the making of each Revolving Advance and
the issuance of each Letter of Credit:



               (a) Notice; Application. In the case of the making of a Revolving Advance, the
Administrative Agent shall have received a Notice of Revolving Borrowing and such other approvals
or documents as any Lender through the Administrative Agent may reasonably request. In the case of
the issuance of a Letter of Credit, the Administrative Agent and the applicable Issuing Lender
shall have received: (i) the notice required by Section 2.07(a) hereof; and (ii) an
Application in the form required by the applicable Issuing Lender duly completed by the Borrower.



               (b) Absence of Litigation. There shall be no injunction, writ, preliminary
restraining order or other order of any nature issued by any Governmental Authority in any respect
directly affecting the transactions provided for herein and no action or proceeding by or before
any Governmental Authority shall have been commenced and be pending or, to the knowledge of the
Borrower, threatened, seeking to prevent or delay the transactions contemplated by the Loan
Documents or challenging any other terms and provisions hereof or thereof or seeking any damages in
connection therewith.



               (c) Representations and Warranties; No Default. After giving effect to the applicable
Revolving Borrowing or the issuance of the applicable Letter of Credit: (i) no Default shall have
occurred and be continuing, (ii) all representations and warranties of the Borrower contained in
Article IV of this Agreement (other than the representation and warranty of the Borrower
contained in Section 4.04(b) hereof) shall be true (except that for purposes of this
Section 3.02, the representations and warranties contained in Section 4.04(a) shall
be deemed to refer to the most recent statements furnished pursuant to Section 5.01(a)),
and (iii) no default or event of default under any engineering, procurement, construction or
maintenance contract of the Borrower or any of its Subsidiaries shall have occurred and be
continuing which could reasonably be expected to materially and adversely affect the ability of the
Borrower to perform its obligations under the Loan Documents.



               (d) Commitments and LC Exposure. Both before and immediately after giving effect to
the applicable Revolving Borrowing or the issuance of the applicable Letter of Credit (or creation
of any related Bankers Acceptance), the Dollar Equivalent of the total LC Exposure plus the
outstanding principal amount of all Revolving Advances shall not exceed the Aggregate Commitments.



34









 





ARTICLE IV




REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants that:



          SECTION 4.01. Corporate Existence and Power.




     The Borrower is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its business as now
conducted.



          SECTION 4.02. Corporate and Governmental Authorization; Contravention.




     The execution, delivery and performance by the Borrower of this Agreement and the other Loan
Documents (i) are within the Borrower’s corporate power, (ii) have been duly authorized by all
necessary corporate action, (iii) require no action by or in respect of, or filing with, any
governmental body, agency or official, (iv) do not contravene or constitute a default under any
provision of applicable law or regulation, or of the certificate of incorporation or by-laws of the
Borrower, and (v) do not contravene or constitute a default under, or result in the creation of any
Lien under, any material agreement, judgment, injunction, order, decree or other instrument binding
upon the Borrower.



          SECTION 4.03. Binding Effect.




     This Agreement has been duly executed and delivered by the Borrower and constitutes a valid
and binding agreement of the Borrower, enforceable in accordance with its terms.



          SECTION 4.04. Financial Information.




               (a) Balance Sheet. The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of December 31, 2005 and the related consolidated statements of earnings and of
cash flow for the fiscal year then ended, reported on by Ernst & Young LLP and set forth in the
Borrower’s 2005 Form 10-K, a copy of which has been made available to each of the Lenders, fairly
present, in conformity with GAAP, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of operations and changes
in financial position for such fiscal year.



               (b) Material Adverse Change. There exists no Material Adverse Change.



          SECTION 4.05. Litigation.




     There is no action, suit or proceeding pending or to the knowledge of the Borrower threatened
against or affecting the Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official (i) which could reasonably be expected to have a material
adverse effect on the business, consolidated financial position or consolidated results of
operations of the Borrower and its Consolidated Subsidiaries, taken as a whole, and the



35









 




Borrower’s ability to perform its obligations under the Loan Documents at any time up to and
including the Maturity Date, or (ii) which purports to affect the legality, validity or
enforceability of this Agreement or any other Loan Document.




          SECTION 4.06. Compliance with ERISA.




     The Borrower and its Subsidiaries have fulfilled their obligations under the minimum funding
standards of ERISA with respect to each Plan and are in compliance in all material respects with
the currently applicable provisions of ERISA, noncompliance with which could reasonably be expected
to have a material adverse effect on the business, consolidated financial position or consolidated
results of operations of the Borrower and its Consolidated Subsidiaries, taken as a whole, and the
Borrower’s ability to perform its obligations under the Loan Documents at any time up to and
including the Maturity Date.



          SECTION 4.07. Taxes.




     The Borrower and its Subsidiaries have filed all United States Federal income tax returns and
all other material tax returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Borrower or any Subsidiary
other than any such taxes or assessments being currently contested in good faith and other than
where the failure to so file or pay would not have a material adverse effect on the business,
financial position, results of operations or properties of the Borrower and its Consolidated
Subsidiaries taken as a whole or, alternatively, on the ability of the Borrower to perform its
obligations under the Loan Documents at any time up to and including the Maturity Date. The
charges, accruals and reserves on the books of the Borrower and its Subsidiaries in respect of
taxes or other governmental charges are adequate.



          SECTION 4.08. Material Subsidiaries.




     Each of the Borrower’s Material Subsidiaries is duly organized or formed, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or organization, and has
all requisite power and authority and all material governmental licenses, authorizations, consents
and approvals required to carry on its business as now conducted.



          SECTION 4.09. Not an Investment Company.




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



          SECTION 4.10. Business of the Borrower; Use of Proceeds.




     The Borrower is not engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U), and no Revolving Advance or LC
Disbursement will be used to purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock. The purpose of each standby Letter of
Credit shall be to support the Borrower’s or its Subsidiaries’, Affiliates’ or Joint Ventures’
performance of their obligations to each beneficiary under their engineering, procurement,
construction and maintenance contracts, and the purpose of each Backing Letter of



36









 




Credit shall be, to the extent permitted under Section 2.07(b) hereof, to back bank
guarantees issued by other banks supporting such performance. Neither the issuance of any Letter
of Credit or creation of any Bankers Acceptance or the making of any Revolving Advance nor the
payment of any Obligation will violate any applicable law or regulation.




          SECTION 4.11. No Misleading Statements.




     No written information, exhibit or report furnished by or at the direction of the Borrower or
any Subsidiary to the Administrative Agent or any Lender in connection with this Agreement contains
any material misstatement of fact or omits to state a material fact or any fact necessary to make
the statements contained therein not misleading.



          SECTION 4.12. Environmental Matters.




     In the ordinary course of its business, the Borrower conducts an ongoing review of the effect
of Environmental Laws on the business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and evaluates associated liabilities and costs
(including, without limitation, any capital or operating expenditures required for clean-up or
closure of properties now or previously owned, any capital or operating expenditures required to
achieve or maintain compliance with environmental protection standards imposed by law or as a
condition of any license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the level of or change
in the nature of operations conducted thereat and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the basis of this review, the
Borrower has reasonably concluded that Environmental Laws are not likely to have a material adverse
effect on the business, financial condition, results of operations or properties of the Borrower
and its Consolidated Subsidiaries, considered as a whole, or, alternatively, on the Borrower’s
ability to perform its obligations under the Loan Documents at any time up to and including the
Maturity Date.



          SECTION 4.13. No Default.




     No Default or Event of Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other Loan Document.



ARTICLE V




COVENANTS




     The Borrower agrees that, so long as any Lender has any Commitment or any LC Exposure or any
other Obligation hereunder remains outstanding:



          SECTION 5.01. Information.




     The Borrower will deliver to each of the Lenders:



               (a) Annual Financial Statements. As soon as available and in any event within 100
days after the end of each fiscal year of the Borrower, a consolidated balance sheet of the




37










 




Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and the related
consolidated statements of earnings and cash flow for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, audited and accompanied by a report
and opinion of Ernst & Young LLP or other independent public accountants of nationally recognized
standing, which report and opinion shall be prepared in a manner acceptable to the SEC and shall
not be subject to any “going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit;




               (b) Quarterly Financial Statements. As soon as available and in any event within 55
days after the end of each of the first three quarters of each fiscal year of the Borrower, an
unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the
end of such quarter and the related consolidated statements of earnings and cash flow for such
quarter and for the portion of the Borrower’s fiscal year ended at the end of such quarter, as set
forth in the Borrower’s quarterly report for the fiscal quarter then ended as filed with the SEC on
Form 10-Q, all certified by the chief financial officer or the chief accounting officer of the
Borrower that they are (i) complete and fairly present the financial condition of the Borrower and
its Consolidated Subsidiaries as at the dates indicated and the results of their operations and
changes in their cash flow for the periods indicated; (ii) disclose all liabilities of the Borrower
and its Consolidated Subsidiaries that are required to be reflected or reserved against under GAAP,
whether liquidated or unliquidated, fixed or contingent; and (iii) have been prepared in accordance
with GAAP (subject to normal year-end adjustments);



               (c) Certificate of Chief Financial Officer. Simultaneously with the delivery of each
set of financial statements referred to in paragraphs (a) and (b) above, a
certificate of the chief financial officer, the treasurer or the chief accounting officer of the
Borrower (i) setting forth in reasonable detail the calculations required to establish whether the
Borrower was in compliance with the requirements of Section 5.07 on the date of such
financial statements, (ii) certifying that all representations and warranties of the Borrower
contained in this Agreement are true and correct as of the date of such certificate as though made
on such date, (iii) stating whether any Default exists on the date of such certificate and, if any
Default then exists, setting forth the details thereof and the action which the Borrower is taking
or proposes to take with respect thereto, and (iv) describing the parties, subject matter, and
nature and amount of relief granted to the prevailing party in any litigation or proceeding in
which a final judgment or order which is either for the payment of money in an amount equal to or
exceeding $25,000,000 (or the Exchange Equivalent thereof) or which grants any material
non-monetary relief to the prevailing party therein was rendered against the Borrower or any
Subsidiary (whether or not satisfied or stayed) during the most recently ended fiscal quarter;



               (d) Notice of Default. Forthwith upon knowledge of the occurrence of any Default, a
certificate of the chief financial officer, the treasurer or the chief accounting officer of the
Borrower setting forth the details thereof and the action which the Borrower is taking or proposes
to take with respect thereto;



               (e) Other Financial Statements. Promptly upon the mailing thereof to the shareholders
of the Borrower generally, copies of all financial statements, reports and proxy statements so
mailed;



38









 





               (f) SEC Filings. Promptly upon the filing thereof, copies of (i) all registration
statements (other than the exhibits thereto and any registration statements on Form S-8 or its
equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their equivalents) which the Borrower or
any Subsidiary shall have filed with the SEC, and (ii) all other reports which the Borrower or any
Subsidiary shall have filed with the SEC or any national securities exchange, unless the Borrower
or such Subsidiary is not permitted to provide copies thereof to the Lenders pursuant to applicable
laws or regulations;



               (g) ERISA Reportable Events. If and when any member of the Controlled Group (i) gives
or is required to give notice to the PBGC of any “reportable event” (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination of such Plan under
Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial withdrawal liability
in excess of $20,000,000 (or the Exchange Equivalent thereof) under Title IV of ERISA, a copy of
such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate or appoint a trustee to administer any Plan, a copy of such notice;



               (h) Notice of Rating Change. Promptly upon the Borrower’s obtaining knowledge
thereof, notice of any withdrawal or change or proposed withdrawal or change in any Rating;



               (i) Notices from Beneficiaries. Immediately upon the Borrower’s receipt thereof, a
copy of any writing delivered by any beneficiary under any Letter of Credit or Bankers Acceptance
to the Borrower or any of its Subsidiaries indicating such beneficiary’s intention to draw under
the applicable Letter of Credit or Bankers Acceptance;



               (j) Notice of Changes in Accounting Policies. Promptly following any such change,
notice of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary; and



               (k) Other Financial Information. From time to time such additional information
regarding the financial position or business of the Borrower or any Subsidiary as the
Administrative Agent, at the reasonable request of any Lender, may request.


Documents required to be delivered pursuant to Section 5.01(a), (b), (e),
(f) or (k) (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically (including, without limitation, via IntraLinks)
and if so delivered, shall be deemed to have been delivered on the date on which the Borrower posts
such documents, or provides a link thereto on the Borrower’s website on the Internet at the website
address listed on the Borrower’s signature page hereto; provided that: (i) the Borrower
shall deliver paper copies of such documents to the Administrative Agent or any Lender that
requests the Borrower to deliver such paper copies until a written request to cease delivering
paper copies is given by the Administrative Agent or such Lender, and (ii) the Borrower shall
notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting
of any such documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. The Administrative Agent shall have no
obligation to request the delivery or to


39









 






maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of such documents.




          SECTION 5.02. Payment of Obligations.




     The Borrower will pay and discharge, and will cause each Subsidiary to pay and discharge, at
or before maturity, all their respective material obligations and liabilities, except where the
same may be contested in good faith by appropriate proceedings or where the failure to so pay and
discharge would not have a material adverse effect on the consolidated financial position of the
Borrower and its Consolidated Subsidiaries, and will maintain, and will cause each Subsidiary to
maintain, in accordance with GAAP, appropriate reserves for the accrual of any of the same.



          SECTION 5.03. Maintenance of Property; Insurance.




               (a) Maintenance of Property. The Borrower will keep, and will cause each Material
Subsidiary to keep, all material items of property useful and necessary in its business in good
working order and condition, ordinary wear and tear and damage from casualty excepted.



               (b) Insurance. The Borrower will maintain, and will cause each Subsidiary to
maintain, with financially sound and reputable insurance companies, insurance on all their real and
personal property in at least such amounts and against at least such risks as are usually insured
against by companies of established repute engaged in the same or similar business as the Borrower
or such Subsidiary and owning similar assets (“Industry Standards”), except where such
risks are covered by self insurance so long as the amount of such self insurance and the risks
covered thereby are consistent with Industry Standards. The Borrower will promptly furnish to the
Lenders such information as to insurance carried or self insurance maintained as may be reasonably
requested in writing by the Administrative Agent on behalf of any Lender.



          SECTION 5.04. Conduct of Business and Maintenance of Existence.




     The Borrower will preserve, renew and keep in full force and effect, and will cause each
Material Subsidiary to preserve, renew and keep in full force and effect, its respective legal
existence and good standing under the laws of the jurisdiction of its organization and its
respective rights, privileges and franchises necessary or desirable in the normal conduct of
business; provided that nothing in this Section 5.04 shall prevent the Borrower or
any Subsidiary from (i) merging into, consolidating with, or selling, leasing or otherwise
transferring all of its assets to the Borrower or a Subsidiary (so long as, in the case of the
Borrower taking any such action, the applicable Subsidiary assumes all Obligations pursuant to a
written agreement acceptable to the Administrative Agent), or (ii) abandoning or disposing of any
of its assets or abandoning or terminating any right or franchise if (A) disposition or termination
does not violate any other provision of this Agreement and (B) all such abandonments, dispositions
and terminations do not in the aggregate materially and adversely affect the business, assets,
financial condition or results of operations of the Borrower and its Consolidated Subsidiaries,
taken as a whole, or, alternatively, the ability of the Borrower to perform its obligations under
the Loan Documents at any time up to and including the Maturity Date.



40









 





          SECTION 5.05. Compliance with Laws.




     The Borrower will comply, and cause each Subsidiary to comply, in all material respects with
all applicable laws, ordinances, rules, regulations, orders, and requirements of governmental
authorities (including, without limitation, ERISA, Environmental Laws and the rules and regulations
thereunder), except where failure to so comply would not have a material adverse effect on the
business, financial position, results of operations or properties of the Borrower and its
Consolidated Subsidiaries taken as a whole or, alternatively, on the ability of the Borrower to
perform its obligations under the Loan Documents at any time up to and including the Maturity Date.



          SECTION 5.06. Keeping of Records; Inspection of Property, Books and Records.




     The Borrower will keep, and will cause each Subsidiary to keep, proper books of record and
account in accordance with GAAP consistently applied; and will permit, and will cause each
Subsidiary to permit, the Administrative Agent, any of the Lenders or any agents or representatives
of the Administrative Agent or any Lender, at the Administrative Agent’s or such Lender’s expense,
to visit and inspect any of its respective properties, to examine any of its respective books and
records and (subject to Section 8.10) to discuss its respective affairs, finances and
accounts with any of its respective officers, directors, employees and independent public
accountants, all at such times and as often as may reasonably be desired, in each case upon
reasonable notice and during normal business hours. Notwithstanding anything to the contrary in
this Section 5.06, none of the Borrower or any of its Subsidiaries will be required to
disclose, permit the inspection, examination or discussion of, any document, information or other
matter in respect of which such disclosure is then prohibited by law or any agreement binding on
the Borrower or any of its Subsidiaries.



          SECTION 5.07. Debt.




               (a) Debt to Tangible Net Worth Ratio. The ratio of Consolidated Debt to Consolidated
Tangible Net Worth will at no time exceed 1.00 to 1.00.



               (b) Total Debt. The total Debt of all Consolidated Subsidiaries of the Borrower,
excluding the Debt, if any, owed by such Consolidated Subsidiaries to the Borrower or another
Consolidated Subsidiary of the Borrower, will at no time exceed an amount equal to $500,000,000 (or
the Exchange Equivalent thereof).



          SECTION 5.08. Negative Pledge.




     Neither the Borrower nor any Subsidiary will create, assume or suffer to exist any Lien
securing Debt on any asset now owned or hereafter acquired by it, or assign any right to receive
income, except:



               (i) Liens existing on the date of this Agreement and disclosed on Schedule 5.08
attached hereto and any renewals or extensions thereof, provided that the property covered
thereby is not changed;



41









 





               (ii) any Lien existing on any asset of any corporation at the time such corporation becomes a
Subsidiary or is merged into or consolidated with an Borrower or a Subsidiary; provided
that (i) such Lien is not created in contemplation of such event, (ii) such Lien shall not
apply to any other property or asset of the Borrower or any of its Subsidiaries, and (iii) such
Lien shall secure only those obligations which it secures on the date of such acquisition or the
date such Person becomes a Subsidiary, as the case may be;



               (iii) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all
or any part of the cost of acquiring or constructing such asset; provided that (i) such
Lien attaches to such asset concurrently with or within 180 days after the acquisition or
construction thereof and (ii) such Lien shall not apply to any other property or asset of the
Borrower or any of its Subsidiaries;



               (iv) any Lien existing on any asset prior to the acquisition thereof by the Borrower or a
Subsidiary and not created primarily in contemplation of such acquisition;



               (v) any Lien arising out of the refinancing, extension, renewal or refunding of any Debt
secured by any Lien permitted by any of the foregoing clauses of this Section 5.08,
provided that such Debt is not increased and is not secured by any additional assets;



               (vi) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 6.01(j);



               (vii) any Lien on or with respect to the property or assets of any Subsidiary securing
obligations owing to the Borrower or another Subsidiary;



               (viii) rights of offset and bankers’ liens in connection with Debt permitted hereby; and



               (ix) Liens not otherwise permitted by the foregoing clauses of this Section 5.08
securing Debt in an aggregate principal amount at any time outstanding not to exceed ten percent
(10%) of Consolidated Tangible Net Worth.



          SECTION 5.09. Consolidations, Mergers and Sales of Assets.




     The Borrower will not (i) except to the extent expressly permitted in Section 5.04
hereof, consolidate or merge with or into any other Person; provided that the Borrower may
merge with a Person if (A) the Borrower is the surviving corporation to such merger and (B) after
giving effect to any such merger no Default shall have occurred hereunder and all representations
and warranties shall be true and correct or (ii) except as permitted pursuant to the foregoing
clause (i), sell, lease or otherwise transfer, directly or indirectly, all or any substantial part
of the assets of the Borrower and its Consolidated Subsidiaries, taken as a whole.



          SECTION 5.10. Payment of Taxes, Etc.




     The Borrower will pay, and will cause each Subsidiary to pay, before the same become
delinquent, all taxes, assessments and governmental charges imposed upon it or any of its
properties, except where the same may be contested in good faith by appropriate proceedings, or



42









 







where any failure to so pay would not have a material adverse effect on the business,
financial position, results of operations or properties of the Borrower and its Consolidated
Subsidiaries taken as a whole or, alternatively, on the ability of the Borrower to perform its
obligations under the Loan Documents at any time up to and including the Maturity Date, and the
Borrower will maintain, and will cause each Subsidiary to maintain, in accordance with GAAP,
appropriate reserves for the accrual of the same.



          SECTION 5.11. Pari-passu Obligations.




     The obligations under this Agreement shall constitute direct, unconditional, senior,
unsubordinated, general obligations of the Borrower and will rank at least pari-passu (in priority
of payment) with all other existing and future senior, unsecured, unsubordinated obligations of the
Borrower resulting from any indebtedness for borrowed money or Debt Guarantee.



          SECTION 5.12. Further Assurances.




     At any time or from time to time upon the request of the Administrative Agent, the Borrower
will, at its expense, promptly execute, acknowledge and deliver such further documents (including
collateral agreements, UCC financing statements and the like pursuant to Section 2.12) and
do such other acts and things as the Administrative Agent may reasonably request in order to effect
fully the purposes of the Loan Documents.



ARTICLE VI




DEFAULTS




          SECTION 6.01. Events of Default.




     Each of the following events (each an “Event of Default”) shall constitute an Event of
Default hereunder:



               (a) the Borrower shall fail to pay (i) when due, any amount of principal of any Revolving
Advance or any LC Disbursement, or (ii) within three days after the same becomes due, any interest
on any Revolving Advance or any LC Disbursement, any fees or any other amount payable hereunder; or



               (b) the Borrower shall fail to observe or perform any covenant contained in Section
2.12 or Sections 5.07 to 5.11, inclusive; or



               (c) the Borrower shall fail to observe or perform any covenant or agreement contained in this
Agreement (other than those covered by paragraph (a) or (b) above) for 30 days
after the earlier to occur of (i) written notice thereof having been given to the Borrower by the
Administrative Agent at the request of any Lender or (ii) actual knowledge thereof by the Borrower
or any of its Subsidiaries of such failure; or



               (d) any representation, warranty, certification or statement made by the Borrower in this
Agreement or in any certificate, financial statement or other document delivered



43









 




pursuant to this Agreement shall prove to have been incorrect in any material respect when
made (or deemed made); or




               (e) the Borrower or any Subsidiary shall fail to make any payment in respect of any Debt
(other than the Obligations) having an aggregate principal amount of at least $50,000,000 (or the
Exchange Equivalent thereof) when due or within any applicable grace period; or



               (f) any event shall occur or condition shall exist which results in the acceleration of the
maturity of any Debt of the Borrower or any Subsidiary having an aggregate principal amount of at
least $50,000,000 (or the Exchange Equivalent thereof); or such Debt shall be declared due and
payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior
to the stated maturity thereof, excluding, however, prepayments of Debt required upon disposition
in the ordinary course of business of collateral securing such Debt so long as such Liens and
dispositions are permitted hereby; or



               (g) the Borrower or any Subsidiary shall commence a voluntary case or other proceeding seeking
to adjudicate the Borrower or any Subsidiary having total assets of $50,000,000 (or the Exchange
Equivalent thereof) or more as bankrupt or insolvent, seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the entry of an order for relief or the appointment of a
trustee, receiver, liquidator, custodian or other similar official for it or for any substantial
part of its property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall admit in writing its inability to pay its debts generally, or
shall take any corporate action to authorize any of the foregoing; or



               (h) an involuntary case or other proceeding shall be commenced against the Borrower or any
Subsidiary having total assets of $50,000,000 (or the Exchange Equivalent thereof) or more seeking
to adjudicate it as bankrupt or insolvent, seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect, or seeking the entry of an order for relief or the appointment of a trustee, receiver,
liquidator, custodian or other similar official for it or for any substantial part of its property,
and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of
30 days; or an order for relief shall be entered against the Borrower or any Subsidiary having
total assets of $50,000,000 (or the Exchange Equivalent thereof) or more under the federal
bankruptcy laws as now or hereafter in effect; or



               (i) any member of the Controlled Group shall fail to pay when due an amount or amounts
aggregating in excess of $35,000,000 (or the Exchange Equivalent thereof) which it shall have
become liable to pay to the PBGC or to a Plan under Title IV of ERISA except where the failure to
so pay would not (in the opinion of the Required Lenders) have a material adverse effect on the
business, financial position, results of operations or properties of the Borrower and its
Consolidated Subsidiaries taken as a whole or alternatively, on the Borrower’s ability to perform
its obligations under the Loan Documents at any time up to and including the Maturity Date; or
notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in an
amount that would have a material adverse effect on the Borrower and its



44









 




Consolidated Subsidiaries taken as a whole and the Borrower’s ability to perform its
obligations under the Loan Documents at any time up to and including the Maturity Date
(collectively, a “Material Plan”) shall be filed under Title IV of ERISA by any member of
the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material
Plan against any member of the Controlled Group to enforce Section 515 of ERISA and such proceeding
shall not have been dismissed within 30 days thereafter; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or




               (j) to the extent not insured against, one or more final judgments or orders for the payment
of money aggregating in excess of $50,000,000 (or the Exchange Equivalent thereof) shall be
rendered against the Borrower or any Subsidiary and either (i) enforcement proceedings shall have
been commenced by any creditor upon any such judgments or orders or (ii) any of such judgments or
orders shall continue unsatisfied and unstayed by reason of a pending appeal or otherwise for a
period of 30 days; or



               (k) (i) any Person or group of Persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the SEC under said Act) of 35% or more of the outstanding
shares of common stock of the Borrower; or (ii) at any time during any period of twelve consecutive
calendar months a majority of the Board of Directors of the Borrower shall not consist of
individuals who were either directors of the Borrower on the first day of such period
(“original directors”) or appointed as or nominated to be directors either (A) by
individuals including a majority of those of the original directors who have not, prior to such
appointment or nomination, resigned or died, or (B) by a duly constituted committee of the Board of
Directors of the Borrower, a majority of which consists of the original directors; or



               (l) all or any substantial part of the property of the Borrower and its Subsidiaries (taken as
a whole) shall be condemned, seized or otherwise appropriated, or custody or control of such
property shall be assumed, by any court or governmental agency of competent jurisdiction, and such
property shall be retained for a period of 30 days, which condemnation, seizure or other
appropriation could reasonably be expected to have a material adverse effect on the business,
consolidated financial position or consolidated results of operations of the Borrower and its
Consolidated Subsidiaries, taken as a whole, and the Borrower’s ability to perform its obligations
under the Loan Documents at any time up to and including the Maturity Date; or



               (m) any provision of 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; or the Borrower contests in any manner the
validity or enforceability of any provision of any Loan Document; or the Borrower denies that it
has any or further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document.



          SECTION 6.02. Remedies.




45









 








     Upon the occurrence and during the continuance of any Event of Default (other than any event
specified in paragraph (g) or (h) of Section 6.01): (a) the Administrative
Agent shall, at the request of, or may, with the consent of, the Required Lenders, require, without
notice or demand, either or both of the following, at the same or different times: (i) that any or
all of the LC Exposure, the Revolving Advances and all other Obligations, although not yet due, be
immediately due and payable, and thereupon such LC Exposure, Revolving Advances and all other such
Obligations shall be immediately due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower, and (ii) that all
Commitments be terminated, and thereupon all Commitments shall terminate immediately; and in any
event, the Administrative Agent shall have in any jurisdiction where enforcement is sought, in
addition to all other rights and remedies, the rights and remedies of a secured party under the
UCC; and (b) the Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, require the Borrower to deposit cash collateral in Dollars with the
Administrative Agent and otherwise perform all of its obligations under Section 2.12;
provided that upon the occurrence of any event specified in paragraph (g)
or (h) of Section 6.01, (x) such cash collateral referred to in clause (b)
above shall be immediately deposited with the Administrative Agent in accordance with the
provisions of Section 2.12 and (y) all Commitments shall automatically terminate and such
amounts shall automatically become and be due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by the Borrower.



ARTICLE VII




THE ADMINISTRATIVE AGENT




          SECTION 7.01. Appointment and Authorization.




     Each Lender and each Issuing Lender hereby irrevocably appoints BNPP to act on its behalf as
the Administrative Agent under this Agreement and 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 Issuing Lenders, and the Borrower shall
not have rights as a third party beneficiary of any of such provisions.



          SECTION 7.02. Rights as a Lender.




     The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated
or unless the context otherwise requires or the Administrative Agent is not a Lender hereunder,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or
in any other advisory capacity for and generally engage in any kind of business with the Borrower
or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.



          SECTION 7.03. Reliance by Administrative Agent.




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     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 Revolving Advance, or the issuance of a Letter of Credit or creation of a Bankers
Acceptance, that by its terms must be fulfilled to the satisfaction of a Lender or any Issuing
Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or
the applicable Issuing Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender or such Issuing Lender prior to the making of such Revolving Advance or
the issuance of such Letter of Credit or creation of such Bankers Acceptance. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.



          SECTION 7.04. Delegation of Duties.




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



          SECTION 7.05. Liability of Administrative Agent.




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



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



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



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               (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its 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 6.02 and 8.05) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or an Issuing Lender.



     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 III or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



          SECTION 7.06. Indemnification.




     To the extent that the Borrower for any reason fails to indefeasibly pay any amount required
pursuant to Section 8.03(a) or Section 8.03(c) to be paid by it to the
Administrative Agent (or any sub-agent thereof), any Issuing Lender 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 Issuing Lender or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or such Issuing Lender 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 Issuing Lender in connection with such capacity. The obligations of
the Lenders under this Section 7.06 are subject to the provisions of Section
2.14(e).



          SECTION 7.07. Non-Reliance on Administrative Agent and Other Lenders.




     Each Lender and each Issuing Lender 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 Issuing Lender 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



48









 







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.



          SECTION 7.08. Resignation of Administrative Agent.




     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
Issuing Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, 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 having a combined capital and surplus of at least $500,000,000. 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 Issuing Lenders,
appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Borrower, the Lenders and the
Issuing Lenders that no qualifying Person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Loan Documents (except that in the case of any collateral security held by the Administrative
Agent on behalf of the Lenders or the Issuing Lenders under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
and the Issuing Lenders 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 Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 8.03 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.



          SECTION 7.09. Agent With Respect to Cash Collateral Accounts.




     Each Lender hereby authorizes the Administrative Agent, on behalf of and for the benefit of
Lenders, to be the agent for and representative of the Lenders and the Issuing Lenders with respect
to any cash collateral accounts. Anything contained in any of the Loan Documents to the contrary
notwithstanding, the Borrower, the Administrative Agent, each Lender and each Issuing Lender hereby
agree that no Lender or Issuing Lender shall have any right individually to realize upon any cash
collateral accounts, it being understood and agreed that all powers, rights and remedies hereunder
may be exercised solely by the Administrative Agent, on behalf of the



49









 







Lenders and the Issuing Lenders, in accordance with the terms hereof. In furtherance, and not
by limitation, of the foregoing, without written consent or authorization from the Lenders or the
Issuing Lenders, the Administrative Agent may, in accordance with the terms of this Agreement,
release any Lien encumbering any of the cash collateral and execute any documents or instruments
necessary to accomplish any of the foregoing.



          SECTION 7.10. No Other Duties, etc. 




     Anything herein to the contrary notwithstanding, none of the Joint Lead Arrangers, the Sole
Book Manager, the Syndication Agent or Co-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
Issuing Lender hereunder.



ARTICLE VIII




MISCELLANEOUS




          SECTION 8.01. Notices.




               (a) Except in the case of notices and other communications expressly permitted to be given by
telephone, all notices, requests and other communications to any party hereunder shall be in
writing (including telecopy and including electronic mail and Internet or intranet websites such as
IntraLinks to the extent provided in Section 8.01(b)) and shall be given to such party at
its address, telecopy number or electronic mail address set forth on the signature pages hereof or
such other address, telecopy number or electronic mail address as such party may hereafter specify
for the purpose by notice to the Administrative Agent, the Issuing Lenders and the Borrower. Each
such notice, request or other communication shall be effective (i) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid, addressed as
aforesaid, (ii) if given by telecopy, when such telecopy has been received by the addressee
thereof, (iii) if delivered through electronic communications (including electronic mail and
Internet or intranet websites such as IntraLinks) to the extent provided in Section 8.01(b)
below, as provided in such Section 8.01(b) or (iv) if given by any other means, when
delivered at the address specified in this Section 8.01(a); provided that notices
to the Administrative Agent or any Issuing Lender under Article II shall not be effective
until received. The Administrative Agent and the Issuing Lenders shall not be liable for any
errors in transmission or the illegibility of any telecopied documents. In the event the Borrower
sends the Administrative Agent or any Issuing Lender a manually signed confirmation of previously
sent facsimile instructions, the Administrative Agent and the Issuing Lenders shall have no duty to
compare it against the previous instructions received by the Administrative Agent or the Issuing
Lenders nor shall the Administrative Agent or any Issuing Lender have any responsibility should the
contents or the written confirmation differ from the facsimile instructions acted upon by the
Administrative Agent or any Issuing Lender.



               (b) Notices and other communications to the Lenders and the Issuing Lenders hereunder may be
delivered or furnished by electronic communication (including e-mail and Internet or intranet
websites such as IntraLinks) pursuant to procedures approved by the Administrative Agent;
provided that (i) the foregoing shall not apply to notices to any Lender or



50









 




the Issuing Lenders pursuant to Article II if such Lender or such Issuing Lender, as
applicable, has notified the Administrative Agent that it is incapable of receiving notices under
such Article by electronic communication and (ii) in the case of notices and other communications
posted to an Internet or intranet website (such as IntraLinks), notice thereof shall be sent to
each intended recipient at its e-mail address that such notice or communication is available and
identifying the website address therefor. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.




          SECTION 8.02. No Waivers.




     No failure or delay by the Administrative Agent, any Issuing Lender or any Lender in
exercising any right, power or privilege hereunder or under any other Loan Document shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.



          SECTION 8.03. Expenses; Taxes; Indemnification.




               (a) Expenses. The Borrower agrees to pay on demand: (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the Joint Lead Arrangers and the Sole Book Manager
(including the reasonable fees, charges and disbursements of counsel), 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 any Issuing Lender in connection with the issuance, creation, amendment, renewal or
extension of any Letter of Credit or Bankers Acceptance or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or any Issuing
Lender (including the fees, charges and disbursements of any counsel), 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 Revolving
Advances made or Letters of Credit issued or Bankers Acceptances created hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Revolving Advances, Letters of Credit or Bankers Acceptances.



               (b) Taxes. The Borrower shall pay any and all transfer taxes, documentary taxes,
recording taxes, stamp taxes, excise taxes or similar taxes or assessments or other charges payable
or determined to be payable in connection with the execution, delivery, filing and recording of the
Loan Documents and any other documents to be delivered under the Loan Documents (but excluding
taxes imposed on the net income of any Lender), and agrees to save the Administrative Agent, each
Issuing Lender and each Lender harmless from and against any and all liabilities with respect to or
resulting from the Borrower’s delay in paying or omission to pay such taxes.



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               (c) Indemnification; Waiver of Consequential Damages. The Borrower agrees to defend,
indemnify, pay and hold harmless the Administrative Agent (in its capacity as such), each Issuing
Lender (in its capacity as such), each Lender, each Joint Lead Arranger and the Sole Book Manager
and their Affiliates and their respective officers, directors, employees and agents (collectively,
the “Indemnitees”) from and against any and all losses, obligations, penalties, actions,
judgments, claims, damages, liabilities, disbursements and expenses (including reasonable attorneys
fees and expenses, which may include the allocated cost of internal counsel, and settlement costs)
of any kind or nature whatsoever, whether direct, indirect or consequential, and whether based on
any federal, state or foreign laws, statutes, rules or regulations, on common law or equitable
cause or on contract or otherwise, which may be imposed on, incurred by or asserted against the
Indemnitees in any way related to or arising out of this Agreement or the other Loan Documents, or
the transactions contemplated hereby or thereby (collectively, “Losses”), except any such
Losses (i) resulting from the gross negligence or willful misconduct of the Indemnitees or (ii)
resulting from a claim brought by the Borrower against an Indemnitee for breach in bad faith of
such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction, provided that nothing in this Section 8.03(c) shall
obligate the Borrower to pay the normal expenses of the Administrative Agent in the administration
of this Agreement in the absence of pending or threatened litigation or other proceedings or the
claims or threatened claims of others and then only to the extent arising therefrom.


To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or thereby, any Revolving
Advance or Letter of Credit or Bankers Acceptance or the use of the proceeds thereof. No
Indemnitee referred to in this Section 8.03(c) above shall be liable for any damages
arising from the use by unintended recipients of any information or other materials distributed to
such unintended recipients by such Indemnitee through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Loan Documents or
the transactions contemplated hereby or thereby other than for direct or actual damages resulting
from the gross negligence or willful misconduct of such Indemnitee.




               (d) Breakage. Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense reasonably incurred by it as a result of: (a) any
continuation, conversion, payment or prepayment of any Eurodollar Rate Revolving Advance on a day
other than the last day of the Interest Period for such Eurodollar Rate Revolving Advance (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or (b) any failure by
the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow,
continue or convert any Eurodollar Rate Revolving Advance on the date or in the amount notified by
the Borrower; in each case, including any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Eurodollar Rate Revolving Advance or from
fees payable to terminate the deposits from which such funds were obtained but excluding any loss
of anticipated profits. The Borrower shall also pay any customary administrative fees charged by
such Lender in connection with the foregoing.



52









 





               (e) Survival. The obligations of the Borrower under this Section 8.03 shall
survive the termination of this Agreement, the termination of the Aggregate Commitments hereunder
and payment of the Obligations.



          SECTION 8.04. Sharing of Set-Offs. Each Lender agrees that if it shall, by exercising
any right of set-off or counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Obligations owing to such Lender which is
greater than the proportion received by any other Lender in respect of the aggregate amount of
principal and interest due with respect to Obligations owing to such other Lender, the Lender
receiving such proportionately greater payment shall purchase such participations in the LC
Exposure of the other Lenders or Revolving Advances of the other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of principal and interest
with respect to the LC Exposure of the Lenders or Revolving Advances of the Lenders shall be shared
by the Lenders pro rata; provided that nothing in this Section 8.04 shall impair
the right of any Lender to exercise any right of set-off or counterclaim it may have and to apply
the amount subject to such exercise to the payment of indebtedness of the Borrower other than its
LC Exposure or other Obligations owing to such Lender. The Borrower agrees, to the fullest extent
it may effectively do so under applicable law, that any holder of any participation in any
Revolving Advances or a participation in any LC Exposure, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or counterclaim and other rights with
respect to such participation as fully as if such holder of a participation were a direct creditor
of the Borrower in the amount of such participation. If under any applicable bankruptcy, insolvency
or other similar law, any Lender receives a secured claim in lieu of a set-off to which this
Section 8.04 would apply, such Lender shall, to the extent practicable, exercise its rights
in respect of such secured claim in a manner consistent with the rights of the Lenders entitled
under this Section 8.04 to share in the benefits of any recovery on such secured claim. The
Borrower hereby authorizes BNPP and each other Lender, in accordance with the provisions of this
Section 8.04, to so set-off and apply any and all such deposits held and other indebtedness
owing by BNPP or such other Lender to or for the credit or the account of the Borrower and hereby
authorizes BNPP and each such other Lender to permit such set-off and application by BNPP or such
other Lender; provided that any such set-off rights shall not apply to the accounts or
deposits of any of Borrower’s foreign Subsidiaries.




          SECTION 8.05. Amendments and Waivers. Any provision of this Agreement or any other Loan
Document may be amended or waived if, but only if, such amendment or waiver is in writing and is
signed by the Borrower and the Required Lenders (and, if the rights or duties of the Administrative
Agent or any Issuing Lender are affected thereby, by the Administrative Agent or each affected
Issuing Lender, as the case may be); provided that no such amendment, waiver or
modification shall: (i) extend or increase any Commitment of any Lender or subject any Lender to
any additional obligation without the written consent of such Lender, (ii) reduce the principal of
or rate or amount of interest on any Revolving Advance or any LC Disbursement or any fees without
the written consent of each Lender directly affected thereby, (iii) 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, (iv) extend the terms of any Letter of Credit or
Bankers Acceptance (other than as set forth below) without the written consent of each Lender
directly affected thereby, (v) amend this Section 8.05 without the written consent of each
Lender, (vi) change Section 2.14(c),




53









 







Section 2.14(d) or Section 8.04 or any other provision of this Agreement in a manner that would alter the pro rata sharing or disbursement
of payments required thereby without the written consent of each Lender, or (vii) change the
percentage of the Commitments or the number of Lenders which shall be required for the Lenders or
any of them to take any action under this Section 8.05 or any other provision of this
Agreement without the written consent of each Lender; provided further, that the
Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by
the parties thereto. Notwithstanding the foregoing, so long as no Default or Event of Default has
occurred and is continuing, (a) the Expiration Date of any Letter of Credit or Bankers Acceptance
may be extended with the consent of the applicable Issuing Lender and the Borrower to a date not
later than the seventh Business Day prior to the Maturity Date, and (b) any Letter of Credit or
Bankers Acceptance may be amended in any other manner with the consent of the applicable Issuing
Lender and the Borrower so long as such Letter of Credit or Bankers Acceptance, as so amended,
complies with Section 2.07 of this Agreement.




          SECTION 8.06. Successors and Assigns.




               (a) Binding Agreement. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns, except that
the Borrower may not assign or otherwise transfer any of its rights under this Agreement without
the consent of each Lender.



               (b) Successors and Assigns. (i) Each Lender may assign to one or more banks or other
entities all or a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments and the Revolving Advances and LC Exposure held by
it); provided, however, that (A) each such assignment shall be of a constant, and
not a varying, percentage of all rights and obligations under this Agreement, (B) the aggregate
amount of the Commitments, Revolving Advances and LC Exposure of the assigning Lender being
assigned pursuant to each such assignment shall (1) not be less than $5,000,000 and shall be an
integral multiple of $1,000,000 or (2) be the remaining amount of such Lender’s Commitments,
Revolving Advances and LC Exposure, (C) each such assignment and proposed assignee is subject to
the prior written consent of the Administrative Agent, the Issuing Lenders and, so long as no
Default has occurred and is continuing, the Borrower (which consents shall not be unreasonably
withheld); provided, however, that the consent of the Administrative Agent and the
Borrower shall not be required with respect to any such assignment by any Lender to (x) an
Affiliate of such Lender, (y) an Approved Fund or (z) another Lender, (D) no such assignment shall
be made to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (E) no such assignment
shall be made to a natural person, (F) no such assignment may be made to a competitor of the
Borrower and (G) the assigning Lender shall pay or cause to be paid to the Administrative Agent a
processing and recordation fee of $3,500 (except in the case of an assignment to an Affiliate of
the assigning Lender). For each assignment, the parties to such assignment shall execute and
deliver to the Administrative Agent for its acceptance and recording an Assignment and Assumption
Agreement, together with such forms, certificates or other evidence, if any, with respect to United
States federal income tax withholding matters as the assignee under such Assignment and Assumption
Agreement may be required to deliver pursuant to Section 2.16. Upon such execution, delivery, acceptance and recording by the
Administrative Agent, from and after the effective date specified in such Assignment and Assumption
Agreement, the assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Assumption Agreement, the assignor Lender thereunder shall be released from



54









 




its obligations under the Loan Documents. From and after the effective date of any such assignment (1)
the assignee thereunder shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such assignment, have (in addition to any such
rights and obligations theretofore held by it) the rights and obligations of a Lender hereunder,
shall have Commitments equal to the Commitments assigned to it (in addition to any Commitments
theretofore held by it), and shall have LC Exposure and Revolving Advances equal to the LC Exposure
and Revolving Advances assigned to it (in addition to any LC Exposure and Revolving Advances
theretofore held by it) and (2) the assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights
(other than any rights which survive the termination of this Agreement under Section 8.03)
and be released from its obligations under this Agreement (and, in the case of an assignment
covering all or the remaining portion of an assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto). From time to time, at the request of any
Lender, the Administrative Agent shall notify the Lenders of the current Commitments of all
Lenders.




               (c) Sub-Participations. Subject to Section 8.06(d), a Lender may at any time
grant sub-participations to one or more banks or other entities in or to all or any part of its
rights and obligations under this Agreement, and to the extent of any such sub-participation
(unless otherwise stated therein and except as provided below) the purchaser of such
sub-participation shall, to the fullest extent permitted by law, have the same rights and benefits
hereunder as it would have if it were such Lender hereunder; provided, however, that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent, the Lenders and the Issuing Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. Any agreement pursuant to which any Lender may grant such a participating
interest shall provide that such Lender shall retain the sole right and responsibility to enforce
the obligations of the Borrower hereunder, including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
sub-participation agreement may provide that such Lender will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii), (iii)
or (iv) of Section 8.05 without the consent of the participant. Each Lender agrees
to notify the Borrower and the Administrative Agent of the amount of each such sub-participation
and the identity of each such sub-participant.



               (d) Lender Treated as Owner. The Administrative Agent, the Issuing Lenders and the
Borrower may, for all purposes of this Agreement, treat any Lender as the owner and holder of LC
Exposure and Revolving Advances until written notice of assignment shall have been received by
them.



               (e) No Right to Greater Payment. No assignee, participant or other transferee of any
Lender’s rights shall be entitled to receive any greater payment under Section 2.17 than
such Lender would have been entitled to receive with respect to the rights transferred, unless such transfer is made (i) with the Borrower’s prior written consent (which consent shall not be
unreasonably withheld) or by reason of the provisions of this Agreement requiring such Lender to
designate a different Lending Office under certain circumstances, or (ii) at a time when the
circumstances giving rise to such greater payment did not exist.



55









 





               (f) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption Agreement 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.



               (g) 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.



          SECTION 8.07. Collateral.




     Each of the Lenders represents to the Administrative Agent and each of the other Lenders that
it in good faith is not relying upon any “margin stock” (as defined in Regulation U) as collateral
in the extension or maintenance of the credit provided for in this Agreement.



          SECTION 8.08. Governing Law.




     THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.



          SECTION 8.09. Counterparts; Effectiveness. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.




          SECTION 8.10. Confidentiality.




     In accordance with normal procedures regarding proprietary information supplied by customers,
each of the Lenders agrees to keep confidential information relating to the Borrower or any
Subsidiary received pursuant to or in connection with this Agreement and the transactions
contemplated hereby (the “Information”), provided that nothing herein shall be
construed to prevent the Administrative Agent, any Issuing Lender or any Lender from disclosing
such Information (i) upon the order of any court or administrative agency, (ii) upon the request or
demand of any regulatory agency or authority having jurisdiction over the Administrative Agent,
such Issuing Lender or such Lender or any of their respective Affiliates, (iii) which has been
publicly disclosed (other than as a result of a breach of this Section), (iv) which has been
lawfully obtained on a nonconfidential basis by the Administrative Agent, any Issuing Lender or any
of the Lenders from a Person other than the Borrower, any Subsidiary, the Administrative Agent, any
Issuing Lender or any other Lender, (v) to any participant in or assignee of, or prospective
participant in or assignee of, all or any part of the rights and obligations of the Administrative




56










 




Agent, such Issuing Lender or such Lender under this Agreement or to any actual or prospective
counterparty (or its advisors) to any securitization, swap or derivative transaction relating to
the Borrower, any Subsidiary, and the Obligations (provided that such participant, assignee or
counterparty, or prospective participant, assignee or counterparty agrees to comply with the
confidentiality requirements set forth in this Section 8.10), (vi) to the Administrative
Agent’s, such Issuing Lender’s or such Lender’s independent auditors or outside legal counsel,
(vii) to its Affiliates (it being understood that the Persons to whom such disclosure is made will
be informed of the confidential nature of such Information and instructed to keep such Information
confidential), (viii) to any other party to this Agreement or (ix) to the extent required in
connection with any litigation relating to this Agreement to which the Administrative Agent, such
Issuing Lender or such Lender is a party (and the Administrative Agent, such Issuing Lender or such
Lender shall use its commercially reasonable efforts to give prior notice of any such disclosure
under this clause (ix) to the extent permitted by applicable law).




     Each of the Administrative Agent, the Lenders and the Issuing Lenders acknowledges that (a)
the Information may include material non-public information concerning the Borrower or a
Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material non-public information in
accordance with applicable law, including Federal and state securities laws.



          SECTION 8.11. Captions.




     All Section headings are inserted for convenience of reference only and shall not be used in
any way to modify, limit, construe or otherwise affect this Agreement.



          SECTION 8.12. Severability.




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



          SECTION 8.13. Integration.




     All exhibits to a Loan Document shall be deemed to be a part thereof. The Loan Documents
embody the entire agreement and understanding among the Borrower, the Administrative Agent, the
Issuing Lenders and the Lenders with respect to the subject matter
thereof and supersede all prior agreements and understandings among the Borrower, the
Administrative Agent and the Lenders with respect to the subject matter thereof.



          SECTION 8.14. CONSENT TO JURISDICTION; WAIVER OF VENUE.




     (a) THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE



57









 







COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT FROM ANY 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 NEW YORK 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 ISSUING
LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     (b) THE BORROWER 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 (a) 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.



          SECTION 8.15. Service of Process.




     EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 8.01. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY
HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



          SECTION 8.16. No Advisory or Fiduciary Responsibility.




     In connection with all aspects of each transaction contemplated hereby, the Borrower
acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) the credit
facility provided for hereunder and any related arranging or other services in connection
therewith (including in connection with any amendment, waiver or other modification hereof or
of any other Loan Document) are an arm’s-length commercial transaction between the Borrower and its
Affiliates, on the one hand, and the Administrative Agent, the Sole Book Manager and the Joint Lead
Arrangers, on the other hand, and the Borrower is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions contemplated hereby and
by the other Loan Documents (including any amendment, waiver or other modification hereof or
thereof); (ii) in connection with the process leading to such



58









 







transaction, the Administrative Agent, the Sole Book Manager and each Joint Lead Arranger each is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for the Borrower or any of its
Affiliates, stockholders, creditors or employees or any other Person; (iii) none of the
Administrative Agent, the Sole Book Manager nor any Joint Lead Arranger has assumed or will assume
an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the
transactions contemplated hereby or the process leading thereto, including with respect to any
amendment, waiver or other modification hereof or of any other Loan Document (irrespective of
whether the Administrative Agent, the Sole Book Manager or any Joint Lead Arranger has advised or
is currently advising the Borrower or any of its Affiliates on other matters) and none of the
Administrative Agent, the Sole Book Manager nor any Joint Lead Arranger has any obligation to the
Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; (iv) the Administrative
Agent, the Sole Book Manager and the Joint Lead Arrangers and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from those of the
Borrower and its Affiliates, and none of the Administrative Agent, the Sole Book Manager nor any
Joint Lead Arranger has any obligation to disclose any of such interests by virtue of any advisory,
agency or fiduciary relationship; and (v) the Administrative Agent, the Sole Book Manager and the
Joint Lead Arrangers have not provided and will not provide any legal, accounting, regulatory or
tax advice with respect to any of the transactions contemplated hereby (including any amendment,
waiver or other modification hereof or of any other Loan Document) and the Borrower has consulted
its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate.
The Borrower hereby waives and releases, to the fullest extent permitted by law, any claims that it
may have against the Administrative Agent, the Sole Book Manager and the Joint Lead Arrangers with
respect to any breach or alleged breach of agency or fiduciary duty.



          SECTION 8.17. WAIVER OF TRIAL BY JURY.




     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.



          SECTION 8.18. 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



59









 







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



          SECTION 8.19. Judgment Currency.




               (a) If for the purposes of obtaining judgment in any court it is necessary to convert a sum
due hereunder in Dollars into another currency under this Agreement or any other Loan Document, the
parties hereto agree, to the fullest extent that they may effectively do so, that the rate of
exchange used will be that at which in accordance with normal banking procedures the Administrative
Agent could purchase Dollars with such other currency in the City of San Francisco at 10:00 a.m.
(San Francisco time) on the Business Day preceding that on which final judgment is given.



               (b) The Borrower’s obligations hereunder shall be required to be satisfied in Dollars. The
obligation of the Borrower in respect of any sum due from it to any Credit Party hereunder will,
notwithstanding any judgment in a currency other than Dollars, be discharged only to the extent the
recipient thereof may in accordance with normal banking procedures purchase Dollars (after
subtracting all expenses incurred in converting such currency to Dollars) with such other currency
on the Business Day immediately following such receipt; if the Dollars so purchased are less than
the sum originally due to the recipient in Dollars, the Borrower agrees, as a separate obligation
and notwithstanding any judgment, to indemnify the recipient against such loss, and, if the Dollars
so purchased exceed the sum originally due to the recipient in Dollars, the recipient agrees to
remit to the Borrower such excess (after subtracting all expenses incurred in converting such
currency to Dollars).



               (c) The agreements in this Section 8.19 shall survive payment of any such judgment.



     SECTION 8.20. USA PATRIOT Act. Each Lender that is subject to the Patriot Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to
obtain, verify and record information that identifies the Borrower and each Related Entity, which
information includes the name and address of the Borrower and each Related Entity and other
information that will allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower and each Related Entity in accordance with the Patriot Act. The Borrower will, and will cause each of
its Subsidiaries to, provide, to the extent commercially reasonable or required by requirements of
law, such information and take such actions as are reasonably requested by the Administrative Agent
or any Lender to assist the Administrative Agent and the Lenders in maintaining compliance with the
Patriot Act.




[signature pages follow]



60









 







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



	 	 	 	 	 	 	 
	 	 	FLUOR CORPORATION,	 	 
	 	 	as the Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Joanna M. Oliva	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	J.M. Oliva	 	 
	 

	 	 	 	Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	6700 Las Colinas Boulevard

Irving, Texas 75039

Attention: Vice President and Treasurer

Telecopier: (469) 398-7285

Electronic Mail: Joanna.Oliva@fluor.com

Website Address: www.fluor.com	 	 






 









 






	 	 	 	 	 	 	 
	 	 	BNP PARIBAS, as Administrative Agent, an	 	 
	 	 	Issuing Lender, and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Pierre-Nicholas Rogers	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Pierre-Nicholas Rogers	 	 
	 

	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jamie Dillon	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Jamie Dillon	 	 
	 

	 	 	 	Title: Managing Director	 	 






	 	 	 	 	 
	 

	 	Lending Office:
	 	 
	 
	 	 	 	 
	 

	 	BNP Paribas	 	 
	 

	 	919 Third Avenue	 	 
	 

	 	3rd Floor	 	 
	 

	 	New York, New York 10022	 	 
	 
	 	 	 	 
	 

	 	Addresses for Notices to BNPP as
Administrative
Agent:	 	 
	 
	 	 	 	 
	 

	 	BNP Paribas	 	 
	 

	 	One Front Street, 23rd Floor	 	 
	 

	 	San Francisco, California 94111	 	 
	 
	 	 	 	 
	 

	 	Attention: Nicholas Rogers	 	 
	 

	 	Telecopier: (415) 291-0563	 	 
	 

	 	Electronic Mail:	 	 
	 

	 	nicholas.rogers@americas.bnpparibas.com	 	 
	 
	 	 	 	 
	 

	 	Attention: Jamie Dillon	 	 
	 

	 	Telecopier: (415) 291-0563	 	 
	 

	 	Electronic Mail:	 	 
	 

	 	jamie.dillon@americas.bnpparibas.com	 	 
	 
	 	 	 	 
	 

	 	Attention: Joseph Mack	 	 
	 

	 	Telecopier: (415) 291-0563	 	 
	 

	 	Electronic Mail:	 	 
	 

	 	joseph.mack@americas.bnpparibas.com	 	 
	 
	 	 	 	 
	 

	 	With copies to:	 	 
	 
	 	 	 	 
	 

	 	BNP Paribas	 	 
	 

	 	787 Seventh Avenue	 	 
	 

	 	New York, New York 10019	 	 
	 

	 	Attention: Terri Knuth	 	 
	 

	 	Telecopier: (212) 841-2275	 	 






 









 






	 	 	 	 	 
	 

	 	Electronic Mail:

terri.knuth@americas.bnpparibas.com	 	 
	 
	 	 	 	 
	 

	 	BNP Paribas	 	 
	 

	 	919 Third Avenue	 	 
	 

	 	New York, New York 10022	 	 
	 
	 	 	 	 
	 

	 	Attention: Bindu Menon	 	 
	 

	 	Telecopier: (212) 471-2682	 	 
	 

	 	Electronic Mail:	 	 
	 

	 	bindu.menon@americas.bnpparibas.com	 	 
	 
	 	 	 	 
	 

	 	Attention: Thomas Kunz	 	 
	 

	 	Telecopier: (212) 471-6695	 	 
	 

	 	Electronic Mail:	 	 
	 

	 	thomas.kunz@americas.bnpparibas.com	 	 
	 
	 	 	 	 
	 

	 	Addresses for Notices to BNPP as an Issuing	 	 
	 

	 	Lender and for Other Notices relating to Letters	 	 
	 

	 	of Credit and Bankers Acceptances:	 	 
	 
	 	 	 	 
	 

	 	BNP Paribas	 	 
	 

	 	One Front Street, 23rd Floor	 	 
	 

	 	San Francisco, California 94111	 	 
	 
	 	 	 	 
	 

	 	Attention: Nicholas Rogers	 	 
	 

	 	Telecopier: (415) 291-0563	 	 
	 

	 	Electronic Mail:	 	 
	 

	 	nicholas.rogers@americas.bnpparibas.com	 	 
	 
	 	 	 	 
	 

	 	Attention: Jamie Dillon	 	 
	 

	 	Telecopier: (415) 291-0563	 	 
	 

	 	Electronic Mail:	 	 
	 

	 	jamie.dillon@americas.bnpparibas.com	 	 
	 
	 	 	 	 
	 

	 	Attention: Joseph Mack	 	 
	 

	 	Telecopier: (415) 291-0563	 	 
	 

	 	Electronic Mail:	 	 
	 

	 	joseph.mack@americas.bnpparibas.com	 	 
	 
	 	 	 	 
	 

	 	Attention: Deborah Scholl	 	 
	 

	 	Telecopier: (415) 291-0563	 	 
	 

	 	Electronic Mail:	 	 
	 

	 	deborah.scholl@americas.bnpparibas.com	 	 
	 
	 	 	 	 
	 

	 	With copies to:	 	 






 









 






	 	 	 	 	 
	 

	 	BNP Paribas	 	 
	 

	 	919 Third Avenue	 	 
	 

	 	New York, New York 10022	 	 
	 
	 	 	 	 
	 

	 	Attention: Johnnie Etheridge	 	 
	 

	 	Telecopier: (212) 471-6996	 	 
	 

	 	Electronic Mail:	 	 
	 

	 	johnnie.etheridge@americas.bnpparibas.com	 	 
	 
	 	 	 	 
	 

	 	Attention: Maritza Leung	 	 
	 

	 	Telecopier: (212) 471-6996	 	 
	 

	 	Electronic Mail:	 	 
	 

	 	maritza.leung@americas.bnpparibas.com	 	 






 









 






	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,

as a Co-Documentation Agent, an Issuing
 Lender
and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert W. Troutman	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert W. Troutman	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	Lending
	 	Office: Bank of America, N.A.	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Bank of America, N.A.	 	 
	 	 	2001 Clayton Road

Concord, California 94520-2405

Attention: Cristina F. Obcena

Telecopier: (888) 969-9246

Electronic Mail:

tina.obcena@bankofamerica.com	 	 






 









 






	 	 	 	 	 	 	 
	 	 	CITICORP USA, INC.,

as Syndication Agent, an Issuing Lender and as
 a
Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Stephanie Bontemps	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Stephanie Bontemps	 	 
	 

	 	Title:
	 	Managing Director and Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	399 Park Avenue, 16th Floor

New York, NY 10043	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Two Penns Way, Suite 110

New Castle, DE 19720

Attention: Askia Abdul-Quadir

Telecopier: (212) 894-6084

Electronic Mail:

askia.ml.abdulquadir@citigroup.com	 	 






 









 






	 	 	 	 	 	 	 
	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ,
 LTD., as a
Co-Documentation Agent, an Issuing
 Lender and as
a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tsuneto Kodama	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Tsuneto Kodama	 	 
	 

	 	Title:
	 	General Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: Seattle Branch	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	900 Fourth Avenue, Suite 4000

Seattle, WA 98164-1068

Attention: Kosuke Takahashi

Telecopier: (206) 382-6067

Electronic Mail: ktakahashi@us.mufg.jp	 	 






 









 





	 	 	 	 	 	 	 
	 	 	UBS Loan Finance LLC,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Richard L. Tavrow	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Richard L. Tavrow	 	 
	 

	 	Title:
	 	Director, Banking Products Services, US	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Irja R. Otsa	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Irja R. Otsa	 	 
	 

	 	Title:
	 	Associate Director, Banking Products

Services, US	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: UBS Loan Finance LLC

677 Washington Boulevard

Stamford, CT 06901	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	UBS LOAN FINANCE LLC	 	 
	 	 	677 Washington Boulevard

Stamford, CT 06901

Attention: Mr. Safraz Hassan

Telecopier: (203) 719-3888

Electronic Mail: safraz.hassan@ubs.com	 	 






 









 





	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A.,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Paul Stimpfl	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Paul Stimpfl	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Wells Fargo Bank, N.A.

333 S. Grand Avenue, 12th Floor

Los Angeles, CA 90071

Attention: Paul Stimpfl

Telecopier: (213) 253-7305

Electronic Mail: stimpfpk@wellsfargo.com	 	 






 









 





	 	 	 	 	 	 	 
	 	 	Calyon New York Branch,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David P. Cagle	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	David P. Cagle	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brian B. Myers	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Brian B. Myers	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: Calyon New York Branch	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	1301 Avenue of the Americas

New York, New York 10019

Attention: George Lewis

Telecopier: (917) 849-5439


Electronic Mail: George.Lewis@us.calyon.com	 	 






 









 






	 	 	 	 	 	 	 
	 	 	ING CAPITAL LLC,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Gil R. Kirkpatrick
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Gil R. Kirkpatrick	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	1325 Avenue of the Americas

New York, NY 10019

Attention: Loan Administration

Telecopier: (646) 424-8253

Electronic Mail:	 	 






 









 






	 	 	 	 	 	 	 
	 	 	US BANK NATIONAL ASSOCIATION,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jacob Payne	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Jacob Payne	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	918 17th Street, 5th Floor

Denver, CO 80202

Attention: Jacob Payne

Telecopier: (303) 585-4279

Electronic Mail: Jacob.Payne@usbank.com	 	 






 









 






	 	 	 	 	 	 	 
	 	 	BARCLAYS BANK PLC,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Nicholas Bell	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Nicholas Bell	 	 
	 

	 	Title:
	 	 Director	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	200 Park Avenue

New York, NY 10166

Attention: Nicholas Bell

Telecopier: (212) 412-7600

Electronic Mail: Nicholas.Bell@barcap.com	 	 






 









 






	 	 	 	 	 	 	 
	 	 	THE NORTHERN TRUST COMPANY,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael Kingsley	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Michael Kingsley	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	50 S. LaSalle Street, L-8

Chicago, IL 60603

Attention: Cliff Hoppe

Telecopier: (312) 444-4906

Electronic Mail: CH86@NTRS.com
	 	 






 









 






	 	 	 	 	 	 	 
	 	 	SUNTRUST BANK,

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel S. Komitor	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Daniel S. Komitor	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	303 Peachtree Street, MC 1941

10th Floor

Atlanta, GA 30308

Attention: Lawanda Griffeth

Telecopier: (404) 588-4401

ElectronicMail: Lawanda.Griffeth@suntrust.com	 	 







 










 





	 	 	 	 	 	 	 
	 	 	Westpac Banking Corporation,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Isaac Rankin	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Isaac Rankin	 	 
	 	 	Title: Head of Relationship Management,
Americas	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	575 Fifth Ave., 39th Floor	 	 
	 	 	New York, NY 10017	 	 
	 	 	Attention: Isaac Rankin	 	 
	 	 	Telecopier: (212) 551-2779	 	 
	 	 	Electronic Mail: irankin@westpac.com.au	 	 






 









 





	 	 	 	 	 	 	 
	 	 	Standard Chartered Bank,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Reddington	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Robert Reddington	 	 
	 	 	Title: Associate Credit Documentation	 	 
	 	 	Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: Standard Chartered Bank –	 	 
	 	 	NY Branch	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	One Madison Avenue	 	 
	 	 	New York, NY 10010-3603	 	 
	 	 	Attention: Vicky Faltine	 	 
	 	 	Telecopier: (212) 667-0568	 	 
	 	 	Electronic Mail:	 	 
	 	 	victoria.faltine@us.standardchartered.com	 	 
	 
	 	 	 	 	 	 
	 	 	Standard Chartered Bank,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Richard L. Van de Berghe, Jr.	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Richard L. Van de Berghe, Jr.	 	 
	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: Standard Chartered Bank –	 	 
	 	 	NY Branch	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	One Madison Avenue	 	 
	 	 	New York, NY 10010-3603	 	 
	 	 	Attention: Vicky Faltine	 	 
	 	 	Telecopier: (212) 667-0568	 	 
	 	 	Electronic Mail:	 	 
	 	 	victoria.faltine@us.standardchartered.com	 	 






 









 





	 	 	 	 	 	 	 
	 	 	Riyad Bank, Houston Agency,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William B. Shepard	 	 
	 

	 	 	 	 	 	 
	 	 	Name: William B. Shepard	 	 
	 	 	Title: General Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Paul N. Travis	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Paul N. Travis	 	 
	 	 	Title: Vice President & Head of
Corporate Finance	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 	 	700 Louisiana Street, Suite 4770	 	 
	 	 	Houston, TX 77002	 	 
	 	 	Attention: Harlene Sridharan	 	 
	 	 	Telecopier: (713) 331-2043	 	 
	 	 	Electronic Mail:	 	 
	 	 	harlene.sridharan@riyadbank-americas.com	 	 






 









 





	 	 	 	 	 
	 	 	Lloyds TSB Bank, plc,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Mario Del Duca
	 

	 	 	 	 
	 	 	Name: Mario Del Duca
	 	 	Title: Assistant Vide President
	 

	 	 	 	     Global Corporate Banking
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Deborah Carlson
	 

	 	 	 	 
	 	 	Name: Deborah Carlson
	 	 	Title: VP & Manager –
	 	 	Business Development C.B.
	 
	 	 	 	 
	 	 	Lending Office: Lloyds TSB Bank, plc
	 
	 	 	 	 
	 	 	Address for Notices:
	 
	 	 	 	 
	 	 	1251 Avenue of the Americas,
	 	 	39th Floor
	 	 	New York, NY 10020 USA
	 	 	Attention: Patricia Kilian
	 	 	Telecopier: (212) 930-5098
	 	 	Electronic Mail: N/A






 









 





	 	 	 	 	 	 	 
	 	 	Banco Bilbao Vizcaya Argentaria, S.A.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jay Levit	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Jay Levit	 	 
	 	 	Title: Vice President	 	 
	 

	 	 	 	   Global Corporate Banking	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Anne-Maureen Sarfati	 	 
	 

	 	 	 	 	 	 
	 	 	Name:Anne-Maureen Sarfati	 	 
	 	 	Title:Vice President	 	 
	 

	 	 	 	   Global Corporate Banking	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: New York Branch	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	1345 Avenue of the Americas, 45th Floor	 	 
	 	 	New York, NY 10014	 	 
	 	 	Attention: Lending Administration	 	 
	 	 	Telecopier: (212) 728-1500	 	 
	 	 	Electronic Mail:	 	 
	 	 	lending.administration@bbvany.com	 	 






 









 





	 	 	 	 	 	 	 
	 	 	CIBC, Inc.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dominic J. Sorresso	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Dominic J. Sorresso	 	 
	 	 	Title: Executive Director	 	 
	 
	 	 	 	 	 	 
	 	 	CIBC World Markets Corp.	 	 
	 	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Information notices:	 	 
	 	 	300 Madison Avenue	 	 
	 	 	New York, NY 10017	 	 
	 	 	Attention: Charmaine McPherson	 	 
	 	 	Telecopier number: (212) 856-3761	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Administrative notices:	 	 
	 	 	595 Bay Street	 	 
	 	 	Toronto, Ontario – Canada	 	 
	 	 	Attention: Humayun Butt	 	 
	 	 	Telecopier number: (416) 542-4558	 	 






 









 





	 	 	 	 	 	 	 
	 	 	The Bank of New York,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Lisa Y. Brown	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Lisa Y. Brown	 	 
	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: U.S. Client Management
Western Division	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	One Wall Street, 22nd Floor	 	 
	 	 	New York, NY 10005	 	 
	 	 	Attention: Dawn Hertling	 	 
	 	 	Telecopier: (212) 635-6399	 	 
	 	 	Electronic Mail: dhertling@bankofny.com	 	 






 









 





	 	 	 	 	 	 	 
	 	 	SANPAOLO IMI S.p.A.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Renato Carducci	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Renato Carducci	 	 
	 	 	Title: General Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Glen Binder	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Glen Binder	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	245 Park Avenue, 35th Floor	 	 
	 	 	New York, NY 10167	 	 
	 	 	Attention: Glen Binder	 	 
	 	 	Telecopier: (212) 692-3178	 	 






 









 





	 	 	 	 	 	 	 
	 	 	BANCA DI ROMA – NEW YORK BRANCH,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Guido Filippi	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Guido Filippi	 	 
	 	 	Title: Assistant Treasurer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Luca Balestra	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Luca Balestra	 	 
	 	 	Title: Executive Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	BANCA DI ROMA – NEW YORK BRANCH	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	BANCA DI ROMA	 	 
	 	 	34 East 51st Street	 	 
	 	 	New York, NY 10022	 	 
	 	 	Attention: Luca Balestra	 	 
	 	 	Telecopier: (212) 407-1740	 	 
	 	 	Electronic Mail: luca.balestra@us.bdroma.com	 	 






 









 





	 	 	 	 	 	 	 
	 	 	Allied Irish Banks P.L.C.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ian Campion	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Ian Campion	 	 
	 	 	Title: Relationship Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office:	 	 
	 	 	International Corporate Banking	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	AIB BankCentre	 	 
	 	 	Ballsbridge	 	 
	 	 	Dublin 4	 	 
	 	 	Ireland	 	 
	 	 	Attention: Ian Campion	 	 
	 	 	Telecopier: (353) 6682508	 	 
	 	 	Electronic Mail: ian.j.campion@aib.ie	 	 






 









 





LENDER ADDENDUM




     The undersigned Lender (i) agrees to all of the provisions of the Amended and Restated Credit
Agreement, dated as of September 7, 2006 (the “Credit Agreement”), among Fluor Corporation
(the “Borrower”), certain Lenders party thereto, BNP Paribas, as Administrative Agent,
Citicorp USA, Inc., as Syndication Agent, and Bank of America, N.A. and The Bank of
Tokyo-Mitsubishi UFJ, Ltd, as Co-Documentation Agents, and (ii) becomes a party thereto, as a
Lender, with obligations applicable to such Lender thereunder, including, without limitation, the
obligation to make extensions of credit to the Borrower in an aggregate principal amount not to
exceed the amount of its Commitment as set forth opposite the undersigned Lender’s name in
Schedule 1.01(a) to the Credit Agreement, as such amount may be adjusted from time to time
as provided in the Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.



	 	 	 	 	 	 	 
	 	 	Fortis Bank S.A./N.V., Cayman Island Branch	 	 
	 
	 

	 	By:
	 	/s/ Catherine Gilbert	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Catherine Gilbert	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Gary O’Brien	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Gary O’Brien	 	 
	 	 	Title: Asst. Mgr. Trade Services	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: Fortis Bank S.A./N.V., Cayman	 	 
	 	 	Island Branch	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Two Embarcadero Center, Suite 1330	 	 
	 	 	San Francisco, CA 94111	 	 
	 	 	Attention: Justin March	 	 
	 	 	Telecopier: (415) 283-3013	 	 
	 	 	Electronic Mail:
Justin.march@us.fortis.com	 	 






 









 





LENDER ADDENDUM




     The undersigned Lender (i) agrees to all of the provisions of the Amended and Restated Credit
Agreement, dated as of September 7, 2006 (the “Credit Agreement”), among Fluor Corporation
(the “Borrower”), certain Lenders party thereto, BNP Paribas, as Administrative Agent,
Citicorp USA, Inc., as Syndication Agent, and Bank of America, N.A. and The Bank of
Tokyo-Mitsubishi UFJ, Ltd, as Co-Documentation Agents, and (ii) becomes a party thereto, as a
Lender, with obligations applicable to such Lender thereunder, including, without limitation, the
obligation to make extensions of credit to the Borrower in an aggregate principal amount not to
exceed the amount of its Commitment as set forth opposite the undersigned Lender’s name in
Schedule 1.01(a) to the Credit Agreement, as such amount may be adjusted from time to time
as provided in the Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.



	 	 	 	 	 	 	 
	 	 	CREDIT SUISSE, Cayman Island Branch	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Sarah Wu	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sarah Wu	 	 
	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Laurence Lapeyre	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Laurence Lapeyre	 	 
	 	 	Title: Associate	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: Credit Suisse, Cayman Island	 	 
	 	 	Branch	 	 
	 	 	Eleven Madison Avenue	 	 
	 	 	New York, NY 10010-3629	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	Credit Suisse, Cayman Islands Branch	 	 
	 	 	One Madison Avenue	 	 
	 	 	New York, NY 10010-3629	 	 
	 	 	Attention: Ed Markowski	 	 
	 	 	Telecopier: (212) 538-6851	 	 
	 	 	Electronic Mail:	 	 
	 	 	Edward.markowski@credit-suisse.com	 	 






 









 





LENDER ADDENDUM




     The undersigned Lender (i) agrees to all of the provisions of the Amended and Restated Credit
Agreement, dated as of September 7, 2006 (the “Credit Agreement”), among Fluor Corporation
(the “Borrower”), certain Lenders party thereto, BNP Paribas, as Administrative Agent,
Citicorp USA, Inc., as Syndication Agent, and Bank of America, N.A. and The Bank of
Tokyo-Mitsubishi UFJ, Ltd, as Co-Documentation Agents, and (ii) becomes a party thereto, as a
Lender, with obligations applicable to such Lender thereunder, including, without limitation, the
obligation to make extensions of credit to the Borrower in an aggregate principal amount not to
exceed the amount of its Commitment as set forth opposite the undersigned Lender’s name in
Schedule 1.01(a) to the Credit Agreement, as such amount may be adjusted from time to time
as provided in the Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.



	 	 	 	 	 
	 	 	The Bank of Nova Scotia
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Chris Osborn
	 

	 	 	 	 
	 	 	Name: Chris Osborn
	 	 	Title: Managing Director
	 
	 	 	 	 
	 	 	Lending Office:
	 
	 	 	 	 
	 	 	Address for Notices:
	 
	 	 	 	 
	 	 	580 California St., Suite 2100
	 	 	San Francisco, CA 94104
	 	 	Attention: Maarten Van Otterloo
	 	 	Telecopier: (415) 986-1100
	 	 	Electronic Mail:
	 	 	maarty_van_otterloo@scotiacapital.com






 









 





LENDER ADDENDUM




     The undersigned Lender (i) agrees to all of the provisions of the Amended and Restated Credit
Agreement, dated as of September 7, 2006 (the “Credit Agreement”), among Fluor Corporation
(the “Borrower”), certain Lenders party thereto, BNP Paribas, as Administrative Agent,
Citicorp USA, Inc., as Syndication Agent, and Bank of America, N.A. and The Bank of
Tokyo-Mitsubishi UFJ, Ltd, as Co-Documentation Agents, and (ii) becomes a party thereto, as a
Lender, with obligations applicable to such Lender thereunder, including, without limitation, the
obligation to make extensions of credit to the Borrower in an aggregate principal amount not to
exceed the amount of its Commitment as set forth opposite the undersigned Lender’s name in
Schedule 1.01(a) to the Credit Agreement, as such amount may be adjusted from time to time
as provided in the Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.



	 	 	 	 	 	 	 
	 	 	HSBC Bank USA, National Association	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Eduardo Abello	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Eduardo Abello, Officer #14811	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: HSBC Bank USA, National	 	 
	 	 	Association	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	One HSBC Center, 26th Floor	 	 
	 	 	Buffalo, New York 14203	 	 
	 	 	Attention: Donna Riley	 	 
	 	 	Telecopier: (716) 841-0269	 	 
	 	 	Electronic Mail: donna.l.riley@us.hsbc.com	 	 






 









 





LENDER ADDENDUM




     The undersigned Lender (i) agrees to all of the provisions of the Amended and Restated Credit
Agreement, dated as of September 7, 2006 (the “Credit Agreement”), among Fluor Corporation
(the “Borrower”), certain Lenders party thereto, BNP Paribas, as Administrative Agent,
Citicorp USA, Inc., as Syndication Agent, and Bank of America, N.A. and The Bank of
Tokyo-Mitsubishi UFJ, Ltd, as Co-Documentation Agents, and (ii) becomes a party thereto, as a
Lender, with obligations applicable to such Lender thereunder, including, without limitation, the
obligation to make extensions of credit to the Borrower in an aggregate principal amount not to
exceed the amount of its Commitment as set forth opposite the undersigned Lender’s name in
Schedule 1.01(a) to the Credit Agreement, as such amount may be adjusted from time to time
as provided in the Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.



	 	 	 	 	 	 	 
	 	 	ARAB BANKING CORPORATION (B.S.C.)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert J. Ivosevich	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Robert J. Ivosevich	 	 
	 	 	Title: General Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Rami El-Rifai	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Rami El-Rifai	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: New York	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	277 Park Avenue, 32nd Floor	 	 
	 	 	New York, NY 10172-3299	 	 
	 	 	Attention: Rami El-Rifai	 	 
	 	 	Telecopier: (212) 583-0921	 	 
	 	 	Electronic Mail: rami.el-rifai@arabbanking.com