exv10w1



 





Exhibit 10.1




EXECUTION COPY




SECOND AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of October 13, 2006




among




CHICAGO BRIDGE & IRON COMPANY N.V.,




the SUBSIDIARY BORROWERS,




THE INSTITUTIONS FROM TIME TO TIME PARTIES HERETO AS LENDERS




and




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Administrative Agent




and




BANK OF AMERICA, N.A.,

as Syndication Agent




and




BANK OF MONTREAL, WELLS FARGO BANK, N.A., BNP PARIBAS and

THE ROYAL BANK OF SCOTLAND plc,

as Documentation Agents




 





J.P. MORGAN SECURITIES INC. and BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arrangers and Joint Book Runners




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE I: DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	1.1.	 	 	Certain Defined Terms	 	 	1	 
	 	 	 	1.2.	 	 	Singular/Plural References; Accounting Terms	 	 	27	 
	 	 	 	1.3.	 	 	References	 	 	27	 
	 	 	 	1.4.	 	 	Supplemental Disclosure	 	 	27	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE II: REVOLVING LOAN FACILITY	 	 	28	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	2.1.	 	 	Revolving Loans	 	 	28	 
	 

	 	 	 	 	 	(A)
	 	Amount of Revolving Loans
	 	 	28	 
	 

	 	 	 	 	 	(B)
	 	Borrowing/Election Notice
	 	 	28	 
	 

	 	 	 	 	 	(C)
	 	Making of Revolving Loans
	 	 	28	 
	 	 	 	2.2.	 	 	Swing Line Loans	 	 	29	 
	 

	 	 	 	 	 	(A)
	 	Amount of Swing Line Loans
	 	 	29	 
	 

	 	 	 	 	 	(B)
	 	Borrowing/Election Notice
	 	 	29	 
	 

	 	 	 	 	 	(C)
	 	Making of Swing Line Loans
	 	 	29	 
	 

	 	 	 	 	 	(D)
	 	Repayment of Swing Line Loans
	 	 	29	 
	 	 	 	2.3.	 	 	Rate Options for all Advances; Maximum Interest Periods	 	 	30	 
	 	 	 	2.4.	 	 	Optional Payments; Mandatory Prepayments	 	 	30	 
	 

	 	 	 	 	 	(A)
	 	Optional Payments
	 	 	31	 
	 

	 	 	 	 	 	(B)
	 	Determination of Dollar Amounts of Letters of Credit;
Mandatory Prepayments of Revolving Loans and Cash
Collateralization of Letters of Credit
	 	 	31	 
	 	 	 	2.5.	 	 	Changes in Commitments	 	 	32	 
	 

	 	 	 	 	 	(A)
	 	Voluntary Commitment Reductions
	 	 	32	 
	 

	 	 	 	 	 	(B)
	 	Increase in Commitments
	 	 	32	 
	 	 	 	2.6.	 	 	Method of Borrowing	 	 	35	 
	 	 	 	2.7.	 	 	Method of Selecting Types and Interest Periods for Advances	 	 	35	 
	 	 	 	2.8.	 	 	Minimum Amount of Each Advance	 	 	36	 
	 	 	 	2.9.	 	 	Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances	 	 	36	 
	 

	 	 	 	 	 	(A)
	 	Right to Convert
	 	 	36	 
	 

	 	 	 	 	 	(B)
	 	Automatic Conversion and Continuation
	 	 	36	 
	 

	 	 	 	 	 	(C)
	 	No Conversion Post-Default or Post-Unmatured Default
	 	 	36	 
	 

	 	 	 	 	 	(D)
	 	Borrowing/Election Notice
	 	 	36	 
	 	 	 	2.10.	 	 	Default Rate	 	 	36	 
	 	 	 	2.11.	 	 	Method of Payment	 	 	37	 
	 

	 	 	 	 	 	(A)
	 	Method of Payment
	 	 	37	 
	 

	 	 	 	 	 	(B)
	 	Market Disruption
	 	 	37	 
	 	 	 	2.12.	 	 	Evidence of Debt	 	 	38	 
	 

	 	 	 	 	 	(A)
	 	Loan Account
	 	 	38	 
	 

	 	 	 	 	 	(B)
	 	Register
	 	 	38	 
	 

	 	 	 	 	 	(C)
	 	Entries in Loan Account and Register
	 	 	38	 
	 

	 	 	 	 	 	(D)
	 	Noteless Transaction; Notes Issued Upon Request
	 	 	38	 






ii









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	2.13.	 	 	Telephonic Notices	 	 	39	 
	 	 	 	2.14.	 	 	Promise to Pay; Interest and Commitment Fees; Interest Payment Dates;
Interest and Fee Basis; Taxes; Loan and Control Accounts	 	 	39	 
	 

	 	 	 	 	 	(A)
	 	Promise to Pay
	 	 	39	 
	 

	 	 	 	 	 	(B)
	 	Interest Payment Dates
	 	 	39	 
	 

	 	 	 	 	 	(C)
	 	Commitment Fees; Additional Fees
	 	 	39	 
	 

	 	 	 	 	 	(D)
	 	Interest and Fee Basis; Applicable Floating Rate
Margins, Applicable Eurodollar Margin, Applicable L/C Fee Percentage
and Applicable Commitment Fee Percentage
	 	 	40	 
	 

	 	 	 	 	 	(E)
	 	Taxes
	 	 	42	 
	 	 	 	2.15.	 	 	Notification of Advances, Interest Rates, Prepayments and Aggregate
Commitment Reductions	 	 	45	 
	 	 	 	2.16.	 	 	Lending Installations	 	 	45	 
	 	 	 	2.17.	 	 	Non-Receipt of Funds by the Administrative Agent	 	 	46	 
	 	 	 	2.18.	 	 	Termination Date	 	 	46	 
	 	 	 	2.19.	 	 	Replacement of Certain Lenders	 	 	46	 
	 	 	 	2.20.	 	 	Subsidiary Borrowers	 	 	47	 
	 	 	 	2.21.	 	 	Judgment Currency	 	 	47	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE III: THE LETTER OF CREDIT FACILITY	 	 	48	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	3.1.	 	 	Obligation to Issue Letters of Credit	 	 	48	 
	 	 	 	3.2.	 	 	Transitional Provision	 	 	48	 
	 	 	 	3.3.	 	 	Types and Amounts	 	 	48	 
	 	 	 	3.4.	 	 	Conditions	 	 	49	 
	 	 	 	3.5.	 	 	Procedure for Issuance of Letters of Credit	 	 	49	 
	 

	 	 	 	 	 	(A)
	 	Issuance
	 	 	49	 
	 

	 	 	 	 	 	(B)
	 	Notice
	 	 	50	 
	 

	 	 	 	 	 	(C)
	 	No Amendment
	 	 	50	 
	 	 	 	3.6.	 	 	Letter of Credit Participation	 	 	50	 
	 	 	 	3.7.	 	 	Reimbursement Obligation	 	 	50	 
	 	 	 	3.8.	 	 	Letter of Credit Fees	 	 	51	 
	 	 	 	3.9.	 	 	Borrower and Issuing Bank Reporting Requirements	 	 	52	 
	 	 	 	3.10.	 	 	Indemnification; Exoneration	 	 	52	 
	 

	 	 	 	 	 	(A)
	 	Indemnification
	 	 	52	 
	 

	 	 	 	 	 	(B)
	 	Risk Assumption
	 	 	52	 
	 

	 	 	 	 	 	(C)
	 	No Liability
	 	 	53	 
	 

	 	 	 	 	 	(D)
	 	Survival of Agreements and Obligations
	 	 	53	 
	 	 	 	3.11.	 	 	Market Disruption	 	 	53	 
	 	 	 	3.12.	 	 	L/C Collateral Account	 	 	54	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE IV: CHANGE IN CIRCUMSTANCES	 	 	54	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	4.1.	 	 	Yield Protection	 	 	54	 
	 

	 	 	 	 	 	(A)
	 	Yield Protection
	 	 	54	 
	 

	 	 	 	 	 	(B)
	 	Non-U.S. Reserve Costs or Fees With Respect to Loans
and Letters of Credit to Borrowers 55	 	 	 	 
	 	 	 	4.2.	 	 	Changes in Capital Adequacy Regulations	 	 	56	 
	 	 	 	4.3.	 	 	Availability of Types of Advances	 	 	56	 






iii









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	4.4.	 	 	Funding Indemnification	 	 	56	 
	 	 	 	4.5.	 	 	Lender Statements; Survival of Indemnity	 	 	57	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE V: CONDITIONS PRECEDENT	 	 	57	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	5.1.	 	 	Initial Advances and Letters of Credit	 	 	57	 
	 	 	 	5.2.	 	 	Initial Advance to Each New Subsidiary Borrower	 	 	58	 
	 	 	 	5.3.	 	 	Each Advance and Letter of Credit	 	 	59	 
	 

	 	 	 	 	 	(A)
	 	No Defaults
	 	 	59	 
	 

	 	 	 	 	 	(B)
	 	Representations and Warranties
	 	 	59	 
	 

	 	 	 	 	 	(C)
	 	Maximum Amounts
	 	 	59	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE VI: REPRESENTATIONS AND WARRANTIES	 	 	60	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	6.1.	 	 	Organization; Corporate Powers; Dutch Banking Act	 	 	60	 
	 	 	 	6.2.	 	 	Authority, Execution and Delivery; Loan Documents	 	 	60	 
	 

	 	 	 	 	 	(A)
	 	Power and Authority
	 	 	60	 
	 

	 	 	 	 	 	(B)
	 	Execution and Delivery
	 	 	60	 
	 

	 	 	 	 	 	(C)
	 	Loan Documents
	 	 	60	 
	 	 	 	6.3.	 	 	No Conflict; Governmental Consents	 	 	61	 
	 	 	 	6.4.	 	 	Financial Statements	 	 	61	 
	 

	 	 	 	 	 	(A)
	 	Pro Forma Financials
	 	 	61	 
	 

	 	 	 	 	 	(B)
	 	Audited Financial Statements
	 	 	61	 
	 

	 	 	 	 	 	(C)
	 	Interim Financial Statements
	 	 	62	 
	 	 	 	6.5.	 	 	No Material Adverse Change	 	 	62	 
	 	 	 	6.6.	 	 	Taxes	 	 	62	 
	 

	 	 	 	 	 	(A)
	 	Tax Examinations
	 	 	62	 
	 

	 	 	 	 	 	(B)
	 	Payment of Taxes
	 	 	62	 
	 	 	 	6.7.	 	 	Litigation; Loss Contingencies and Violations	 	 	62	 
	 	 	 	6.8.	 	 	Subsidiaries	 	 	63	 
	 	 	 	6.9.	 	 	ERISA	 	 	63	 
	 	 	 	6.10.	 	 	Accuracy of Information	 	 	64	 
	 	 	 	6.11.	 	 	Securities Activities	 	 	64	 
	 	 	 	6.12.	 	 	Material Agreements	 	 	64	 
	 	 	 	6.13.	 	 	Compliance with Laws	 	 	65	 
	 	 	 	6.14.	 	 	Assets and Properties	 	 	65	 
	 	 	 	6.15.	 	 	Statutory Indebtedness Restrictions	 	 	65	 
	 	 	 	6.16.	 	 	Insurance	 	 	65	 
	 	 	 	6.17.	 	 	Environmental Matters	 	 	65	 
	 

	 	 	 	 	 	(A)
	 	Environmental Representations
	 	 	65	 
	 

	 	 	 	 	 	(B)
	 	Materiality
	 	 	66	 
	 	 	 	6.18.	 	 	Representations and Warranties of each Subsidiary Borrower	 	 	66	 
	 

	 	 	 	 	 	(A)
	 	Organization and Corporate Powers
	 	 	66	 
	 

	 	 	 	 	 	(B)
	 	Binding Effect
	 	 	66	 
	 

	 	 	 	 	 	(C)
	 	No Conflict; Government Consent
	 	 	66	 
	 

	 	 	 	 	 	(D)
	 	Filing
	 	 	67	 
	 

	 	 	 	 	 	(E)
	 	No Immunity
	 	 	67	 
	 

	 	 	 	 	 	(F)
	 	Application of Representations and Warranties
	 	 	67	 
	 	 	 	6.19.	 	 	Benefits	 	 	67	 






iv









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	6.20.	 	 	Solvency	 	 	68	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE VII: COVENANTS	 	 	68	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	7.1.	 	 	Reporting	 	 	68	 
	 

	 	 	 	 	 	(A)
	 	Financial Reporting
	 	 	68	 
	 

	 	 	 	 	 	(B)
	 	Notice of Default
	 	 	69	 
	 

	 	 	 	 	 	(C)
	 	Lawsuits
	 	 	70	 
	 

	 	 	 	 	 	(D)
	 	ERISA Notices
	 	 	71	 
	 

	 	 	 	 	 	(E)
	 	Other Indebtedness
	 	 	71	 
	 

	 	 	 	 	 	(F)
	 	Other Reports
	 	 	72	 
	 

	 	 	 	 	 	(G)
	 	Environmental Notices
	 	 	72	 
	 

	 	 	 	 	 	(H)
	 	Other Information
	 	 	72	 
	 	 	 	7.2.	 	 	Affirmative Covenants	 	 	72	 
	 

	 	 	 	 	 	(A)
	 	Existence, Etc
	 	 	72	 
	 

	 	 	 	 	 	(B)
	 	Corporate Powers; Conduct of Business
	 	 	72	 
	 

	 	 	 	 	 	(C)
	 	Compliance with Laws, Etc
	 	 	72	 
	 

	 	 	 	 	 	(D)
	 	Payment of Taxes and Claims; Tax Consolidation
	 	 	73	 
	 

	 	 	 	 	 	(E)
	 	Insurance
	 	 	73	 
	 

	 	 	 	 	 	(F)
	 	Inspection of Property; Books and Records; Discussions
	 	 	73	 
	 

	 	 	 	 	 	(G)
	 	ERISA Compliance
	 	 	73	 
	 

	 	 	 	 	 	(H)
	 	Maintenance of Property
	 	 	74	 
	 

	 	 	 	 	 	(I)
	 	Environmental Compliance
	 	 	74	 
	 

	 	 	 	 	 	(J)
	 	Use of Proceeds
	 	 	74	 
	 

	 	 	 	 	 	(K)
	 	Subsidiary Guarantors
	 	 	74	 
	 

	 	 	 	 	 	(L)
	 	Foreign Employee Benefit Compliance
	 	 	75	 
	 	 	 	7.3.	 	 	Negative Covenants	 	 	75	 
	 

	 	 	 	 	 	(A)
	 	Subsidiary Indebtedness
	 	 	75	 
	 

	 	 	 	 	 	(B)
	 	Sales of Assets
	 	 	77	 
	 

	 	 	 	 	 	(C)
	 	Liens
	 	 	77	 
	 

	 	 	 	 	 	(D)
	 	Investments
	 	 	78	 
	 

	 	 	 	 	 	(E)
	 	Contingent Obligations
	 	 	78	 
	 

	 	 	 	 	 	(F)
	 	Conduct of Business; Subsidiaries; Permitted Acquisitions
	 	 	79	 
	 

	 	 	 	 	 	(G)
	 	Transactions with Shareholders and Affiliates
	 	 	80	 
	 

	 	 	 	 	 	(H)
	 	Restriction on Fundamental Changes
	 	 	80	 
	 

	 	 	 	 	 	(I)
	 	Sales and Leasebacks
	 	 	81	 
	 

	 	 	 	 	 	(J)
	 	Margin Regulations
	 	 	81	 
	 

	 	 	 	 	 	(K)
	 	ERISA
	 	 	81	 
	 

	 	 	 	 	 	(L)
	 	Corporate Documents
	 	 	81	 
	 

	 	 	 	 	 	(M)
	 	Fiscal Year
	 	 	81	 
	 

	 	 	 	 	 	(N)
	 	Subsidiary Covenants
	 	 	81	 
	 

	 	 	 	 	 	(O)
	 	Hedging Obligations
	 	 	82	 
	 

	 	 	 	 	 	(P)
	 	Issuance of Disqualified Stock
	 	 	82	 
	 

	 	 	 	 	 	(Q)
	 	Non-Guarantor Subsidiaries
	 	 	82	 
	 

	 	 	 	 	 	(R)
	 	Intercompany Indebtedness
	 	 	82	 
	 

	 	 	 	 	 	(S)
	 	Restricted Payments
	 	 	82	 
	 

	 	 	 	 	 	(T)
	 	Changes to Note Purchase Agreement and Related Indebtedness
	 	 	82	 
	 	 	 	7.4.	 	 	Financial Covenants	 	 	83	 






v









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(A)
	 	Maximum Leverage Ratio
	 	 	83	 
	 

	 	 	 	 	 	(B)
	 	Minimum Fixed Charge Coverage Ratio
	 	 	83	 
	 

	 	 	 	 	 	(C)
	 	Minimum Consolidated Net Worth
	 	 	84	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE VIII: DEFAULTS	 	 	84	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	8.1.	 	 	Defaults	 	 	84	 
	 

	 	 	 	 	 	(A)
	 	Failure to Make Payments When Due
	 	 	84	 
	 

	 	 	 	 	 	(B)
	 	Breach of Certain Covenants
	 	 	84	 
	 

	 	 	 	 	 	(C)
	 	Breach of Representation or Warranty
	 	 	84	 
	 

	 	 	 	 	 	(D)
	 	Other Defaults
	 	 	85	 
	 

	 	 	 	 	 	(E)
	 	Default as to Other Indebtedness
	 	 	85	 
	 

	 	 	 	 	 	(F)
	 	Involuntary Bankruptcy; Appointment of Receiver, Etc
	 	 	85	 
	 

	 	 	 	 	 	(G)
	 	Voluntary Bankruptcy; Appointment of Receiver, Etc
	 	 	86	 
	 

	 	 	 	 	 	(H)
	 	Judgments and Attachments
	 	 	86	 
	 

	 	 	 	 	 	(I)
	 	Dissolution
	 	 	86	 
	 

	 	 	 	 	 	(J)
	 	Loan Documents
	 	 	86	 
	 

	 	 	 	 	 	(K)
	 	Termination Event
	 	 	86	 
	 

	 	 	 	 	 	(L)
	 	Waiver of Minimum Funding Standard
	 	 	86	 
	 

	 	 	 	 	 	(M)
	 	Change of Control
	 	 	86	 
	 

	 	 	 	 	 	(N)
	 	Environmental Matters
	 	 	87	 
	 

	 	 	 	 	 	(O)
	 	Guarantor Revocation
	 	 	87	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE IX: ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES	 	 	87	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	9.1.	 	 	Termination of Commitments; Acceleration	 	 	87	 
	 	 	 	9.2.	 	 	Amendments	 	 	88	 
	 	 	 	9.3.	 	 	Preservation of Rights	 	 	89	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE X: GUARANTY	 	 	89	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	10.1.	 	 	Guaranty	 	 	89	 
	 	 	 	10.2.	 	 	Waivers; Subordination of Subrogation	 	 	90	 
	 	 	 	10.3.	 	 	Guaranty Absolute	 	 	90	 
	 	 	 	10.4.	 	 	Acceleration	 	 	91	 
	 	 	 	10.5.	 	 	Marshaling; Reinstatement	 	 	92	 
	 	 	 	10.6.	 	 	Termination Date	 	 	92	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE XI: GENERAL PROVISIONS	 	 	92	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	11.1.	 	 	Survival of Representations	 	 	92	 
	 	 	 	11.2.	 	 	Governmental Regulation	 	 	92	 
	 	 	 	11.3.	 	 	Performance of Obligations	 	 	92	 
	 	 	 	11.4.	 	 	Headings	 	 	93	 
	 	 	 	11.5.	 	 	Entire Agreement	 	 	93	 
	 	 	 	11.6.	 	 	Several Obligations; Benefits of this Agreement	 	 	93	 
	 	 	 	11.7.	 	 	Expenses; Indemnification	 	 	93	 
	 

	 	 	 	 	 	(A)
	 	Expenses
	 	 	93	 
	 

	 	 	 	 	 	(B)
	 	Indemnity
	 	 	94	 
	 

	 	 	 	 	 	(C)
	 	Waiver of Certain Claims; Settlement of Claims
	 	 	95	 






vi









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(D)
	 	Survival of Agreements
	 	 	95	 
	 	 	 	11.8.	 	 	Numbers of Documents	 	 	95	 
	 	 	 	11.9.	 	 	Accounting	 	 	95	 
	 	 	 	11.10.	 	 	Severability of Provisions	 	 	96	 
	 	 	 	11.11.	 	 	Nonliability of Lenders	 	 	96	 
	 	 	 	11.12.	 	 	GOVERNING LAW	 	 	96	 
	 	 	 	11.13.	 	 	CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL	 	 	96	 
	 

	 	 	 	 	 	(A)
	 	EXCLUSIVE JURISDICTION
	 	 	96	 
	 

	 	 	 	 	 	(B)
	 	OTHER JURISDICTIONS
	 	 	97	 
	 

	 	 	 	 	 	(C)
	 	VENUE
	 	 	97	 
	 

	 	 	 	 	 	(D)
	 	SERVICE OF PROCESS
	 	 	97	 
	 

	 	 	 	 	 	(E)
	 	WAIVER OF JURY TRIAL
	 	 	97	 
	 

	 	 	 	 	 	(F)
	 	ADVICE OF COUNSEL
	 	 	98	 
	 	 	 	11.14.	 	 	Other Transactions	 	 	98	 
	 	 	 	11.15.	 	 	Subordination of Intercompany Indebtedness	 	 	98	 
	 	 	 	11.16.	 	 	Lenders Not Utilizing Plan Assets	 	 	99	 
	 	 	 	11.17.	 	 	Collateral	 	 	99	 
	 	 	 	11.18.	 	 	PMP	 	 	100	 
	 	 	 	11.19.	 	 	USA PATRIOT Act	 	 	100	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE XII: THE ADMINISTRATIVE AGENT	 	 	100	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	12.1.	 	 	Appointment; Nature of Relationship	 	 	100	 
	 	 	 	12.2.	 	 	Powers	 	 	100	 
	 	 	 	12.3.	 	 	General Immunity	 	 	100	 
	 	 	 	12.4.	 	 	No Responsibility for Credit Extensions, Creditworthiness, Recitals, Etc	 	 	100	 
	 	 	 	12.5.	 	 	Action on Instructions of Lenders	 	 	101	 
	 	 	 	12.6.	 	 	Employment of Agents and Counsel	 	 	101	 
	 	 	 	12.7.	 	 	Reliance on Documents; Counsel	 	 	101	 
	 	 	 	12.8.	 	 	The Administrative Agent’s Reimbursement and Indemnification	 	 	101	 
	 	 	 	12.9.	 	 	Rights as a Lender	 	 	102	 
	 	 	 	12.10.	 	 	Lender Credit Decision	 	 	102	 
	 	 	 	12.11.	 	 	Successor Administrative Agent	 	 	102	 
	 	 	 	12.12.	 	 	Documentation Agents, Syndication Agent and Arrangers	 	 	103	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE XIII: SETOFF; RATABLE PAYMENTS	 	 	103	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	13.1.	 	 	Setoff	 	 	103	 
	 	 	 	13.2.	 	 	Ratable Payments	 	 	103	 
	 	 	 	13.3.	 	 	Application of Payments	 	 	103	 
	 	 	 	13.4.	 	 	Relations Among Lenders	 	 	104	 
	 

	 	 	 	 	 	(A)
	 	No Action Without Consent
	 	 	104	 
	 

	 	 	 	 	 	(B)
	 	Not Partners; No Liability
	 	 	104	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS	 	 	105	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	14.1.	 	 	Successors and Assigns	 	 	105	 
	 	 	 	14.2.	 	 	Participations	 	 	105	 






vii









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(A)
	 	Permitted Participants; Effect
	 	 	105	 
	 

	 	 	 	 	 	(B)
	 	Voting Rights
	 	 	106	 
	 

	 	 	 	 	 	(C)
	 	Benefit of Setoff
	 	 	106	 
	 	 	 	14.3.	 	 	Assignments	 	 	106	 
	 

	 	 	 	 	 	(A)
	 	Permitted Assignments
	 	 	106	 
	 

	 	 	 	 	 	(B)
	 	Effect; Effective Date
	 	 	107	 
	 

	 	 	 	 	 	(C)
	 	The Register
	 	 	107	 
	 

	 	 	 	 	 	(D)
	 	Designated Lender
	 	 	108	 
	 	 	 	14.4.	 	 	Confidentiality	 	 	109	 
	 	 	 	14.5.	 	 	Dissemination of Information	 	 	109	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE XV: NOTICES	 	 	109	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	15.1.	 	 	Giving Notice	 	 	109	 
	 	 	 	15.2.	 	 	Change of Address	 	 	110	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE XVI: COUNTERPARTS	 	 	110	 






viii









 





EXHIBITS AND SCHEDULES




	 	 	 	 	 
	Exhibits

	 
	 	 	 	 
	EXHIBIT A-1

	 	—
	 	Commitments (Definitions)
	EXHIBIT A-2

	 	 	 	Issuing Banks
	EXHIBIT A-3

	 	 	 	Mandatory Cost
	EXHIBIT B

	 	—
	 	Form of Borrowing/Election Notice (Section 2.2 and
Section 2.7 and Section 2.9)
	EXHIBIT C

	 	—
	 	Form of Request for Letter of Credit (Section 3.4)
	EXHIBIT D

	 	—
	 	Form of Assignment and Acceptance Agreement (Sections
2.19 and 14.3)
	EXHIBIT E-1

	 	—
	 	Form of Company’s US Counsel’s Opinion (Section 5.1)
	EXHIBIT E-2

	 	—
	 	Form of Company’s Foreign Counsel’s Opinion (Section
5.1)
	EXHIBIT E-3

	 	—
	 	List of Closing Documents (Section 5.1)
	EXHIBIT E-4

	 	—
	 	Form of Counsel’s Opinion for Subsidiary Borrowers
	EXHIBIT F

	 	—
	 	Form of Officer’s Certificate (Sections 5.3 and
7.1(A)(iii))
	EXHIBIT G

	 	—
	 	Form of Compliance Certificate (Sections 5.3 and
7.1(A)(iii))
	EXHIBIT H

	 	—
	 	Form of Subsidiary Guaranty (Definitions)
	EXHIBIT I

	 	—
	 	Form of Revolving Loan Note
	EXHIBIT J

	 	—
	 	Form of Assumption Letter (Definitions)
	EXHIBIT K

	 	—
	 	Form of Designation Agreement (Section 14.3(D))
	EXHIBIT L

	 	—
	 	Form of Commitment and Acceptance (Section 2.5(B)(i))
	 
	 	 	 	 
	Schedules

	 
	 	 	 	 
	Schedule 1.1.1

	 	—
	 	Permitted Existing Indebtedness (Definitions)
	Schedule 1.1.2

	 	—
	 	Permitted Existing Investments (Definitions)
	Schedule 1.1.3

	 	—
	 	Permitted Existing Liens (Definitions)
	Schedule 1.1.4

	 	—
	 	Permitted Existing Contingent Obligations
(Definitions)
	Schedule 1.1.5

	 	—
	 	Material Subsidiaries and Foreign Subsidiaries
that are not Excluded Foreign Subsidiaries
	Schedule 1.1.6

	 	—
	 	PMP (Definitions)
	Schedule 3.2

	 	—
	 	Transitional Letters of Credit (Section 3.2)
	Schedule 6.4

	 	—
	 	Pro Forma Financial Statements (Section 6.4(A))
	Schedule 6.7

	 	—
	 	FTC Litigation (Section 6.7)
	Schedule 6.8

	 	—
	 	Subsidiaries (Section 6.8)
	Schedule 6.17

	 	—
	 	Environmental Matters (Section 6.17)
	Schedule 7.3(N)

	 	—
	 	Subsidiary Covenants (Section 7.3(N))
	Schedule 7.3(S)

	 	—
	 	Permitted Restricted Payments (Section 7.3(S))






ix









 





SECOND AMENDED AND RESTATED CREDIT AGREEMENT




          This Second Amended and Restated Credit Agreement dated as of October 13, 2006 is entered into
among Chicago Bridge & Iron Company N.V., a corporation organized under the laws of The Kingdom of
the Netherlands (the “Company”), and one or more Subsidiaries of the Company (whether now existing
or hereafter formed collectively referred to herein as the “Subsidiary Borrowers”), the
institutions from time to time parties hereto as Lenders, whether by execution of this Agreement or
an Assignment Agreement pursuant to Section 14.3, and JPMorgan Chase Bank, National Association, in
its capacity as contractual representative (the “Administrative Agent”) for itself and the other
Lenders to amend and restate the Existing Credit Agreement and, from and after the Closing Date,
the Existing Credit Agreement is hereby amended and restated in their entirety to read as set forth
herein. The parties hereto agree as follows:




ARTICLE I: DEFINITIONS




          1.1. Certain Defined Terms. In addition to the terms defined above, the following terms used
in this Agreement shall have the following meanings, applicable both to the singular and the plural
forms of the terms defined as used in this Agreement:




          “Accounting Change” is defined in Section 11.9.




          “Acquisition” means any transaction, or any series of related transactions, consummated on or
after the date of this Agreement, by which the Company or any of its Subsidiaries (i) acquires any
going business or all or substantially all of the assets of any Person, firm, corporation or
division thereof, whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a corporation which
have ordinary voting power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage of voting power) of
the outstanding Equity Interests of another Person.




          “Adjusted Aggregate Commitment” means, on any date of determination, the Aggregate Commitment
minus an amount equal to three percent (3%) of the aggregate face amounts of all Letters of
Credit denominated in Agreed Currencies other than Dollars.




          “Adjusted Indebtedness” of a Person means, without duplication, such Person’s Indebtedness but
excluding obligations with respect to (i) the undrawn portion of any Performance Letters of Credit,
bank guarantees supporting obligations comparable to those supported by Performance Letters of
Credit and all reimbursement agreements related thereto, (ii) liabilities of such Person or any of
its Subsidiaries under any sale and leaseback transaction which do not create a liability on the
consolidated balance sheet of such Person and (iii) payment or other obligations to Praxair or its
Affiliates in respect of employee benefits under the Employee Benefits Disaffiliation Agreement
dated January 1, 1997, between Chicago Bridge & Iron Company and Praxair, as amended from time to
time.




1









 








          “Administrative Agent” means JPMorgan in its capacity as contractual representative for itself
and the Lenders pursuant to Article XII hereof and any successor Administrative Agent appointed
pursuant to Article XII hereof.




          “Advance” means a borrowing hereunder consisting of the aggregate amount of the several Loans
made by some or all of the Lenders to the applicable Borrower of the same Type and, in the case of
Eurodollar Rate Advances for the same Interest Period.




          “Affected Lender” is defined in Section 2.19.




          “Affiliate” of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person is the “beneficial owner” (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934) of greater than ten percent (10.0%) or more of any class of
voting securities (or other voting interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of Capital Stock, by contract or otherwise.




          “Aggregate Commitment” means the aggregate of the Commitments of all the Lenders, as may be
adjusted from time to time pursuant to the terms hereof. The Aggregate Commitment as of the
Closing Date is Eight Hundred Fifty Million Dollars ($850,000,000).




          “Agreed Currencies” means (i) Dollars and (ii) any other Eligible Agreed Currency which the
applicable Borrower requests the applicable Issuing Bank to include as an Agreed Currency hereunder
and which is acceptable to such Issuing Bank and the Administrative Agent. For purposes of this
definition, “Eligible Agreed Currency” means any currency other than Dollars (i) that is readily
available, (ii) that is freely traded, (iii) in which deposits are customarily offered to banks in
the London interbank market, (iv) which is convertible into Dollars in the international interbank
market and (v) as to which an Equivalent Amount may be readily calculated.




          “Agreement” means this Second Amended and Restated Credit Agreement, as it may be amended,
restated or otherwise modified and in effect from time to time.




          “Agreement Accounting Principles” means generally accepted accounting principles as in effect
in the United States from time to time, applied in a manner consistent with that used in preparing
the financial statements of the Company referred to in Section 6.4(B) hereof; provided, however,
except as provided in Section 11.9, that with respect to the calculation of financial ratios and
other financial tests required by this Agreement, “Agreement Accounting Principles” means generally
accepted accounting principles as in effect in the United States as of the date of this Agreement,
applied in a manner consistent with that used in preparing the financial statements of the Company
referred to in Section 6.4(B) hereof.




          “Alternate Base Rate” means, for any day, a fluctuating rate of interest per annum equal to
the higher of (i) the Prime Rate for such day and (ii) the sum of (a) the Federal Funds Effective
Rate for such day and (b) one-half of one percent (0.5%) per annum.




2









 








          “Applicable Commitment Fee Percentage” means, as at any date of determination, the rate per
annum then applicable in the determination of the amount payable under Section 2.14(C)(i) hereof
determined in accordance with the provisions of Section 2.14(D)(ii) hereof.




          “Applicable Eurodollar Margin” means, as at any date of determination, the rate per annum then
applicable to Eurodollar Rate Loans determined in accordance with the provisions of Section
2.14(D)(ii) hereof.




          “Applicable Floating Rate Margins” means, as at any date of determination, the rate per annum
then applicable to Floating Rate Loans, determined in accordance with the provisions of Section
2.14(D)(ii) hereof.




          “Applicable L/C Fee Percentage” means, as at any date of determination, (x) with respect to
Performance Letters of Credit, the rate per annum then applicable to Performance Letters of Credit,
and (y) with respect to Financial Letters of Credit, the rate per annum then applicable to
Financial Letters of Credit, in each case determined in accordance with the provisions of Section
2.14(D)(ii).




          “Arrangers” means JPMSI and BAS, in their respective capacities as the arrangers for the
credit transaction evidenced by this Agreement.




          “Asset Sale” means, with respect to any Person, the sale, lease, conveyance, disposition or
other transfer by such Person of any of its assets (including by way of a sale-leaseback
transaction, and including the sale or other transfer of any of the Equity Interests of any
Subsidiary of such Person, but not the Equity Interests of such Person) to any Person other than
the Company or any of its wholly-owned Subsidiaries other than (i) the sale of inventory in the
ordinary course of business and (ii) the sale or other disposition of any obsolete equipment
disposed of in the ordinary course of business.




          “Assignment Agreement” means an assignment and acceptance agreement entered into in connection
with an assignment pursuant to Section 14.3 hereof in substantially the form of Exhibit D.




          “Assumption Letter” means a letter of a Subsidiary of the Company addressed to the Lenders in
substantially the form of Exhibit J hereto pursuant to which such Subsidiary agrees to become a
“Subsidiary Borrower” and agrees to be bound by the terms and conditions hereof.




          “Authorized Officer” means the Managing Director of the Company, or such other Person as
authorized by the Managing Director, acting singly; provided, that the Administrative Agent shall
have received a manually signed certificate of the Secretary of the Company as to the incumbency
of, and bearing a manual specimen signature of, such duly authorized Person.




          “Bank Undertaking” means an independent undertaking (within the meaning of, and complying with
the requirements of, 12 C.F.R §§7.1016 or 7.1017) of an issuer thereof (including an Issuing Bank)
as to which such issuer’s obligation to honor depends upon the





3









 







presentation of specified documents and not upon nondocumentary conditions or any question or
fact or law.




          “BAS” means Banc of America Securities LLC, and its successors.




          “Benefit Plan” means a defined benefit plan as defined in Section 3(35) of ERISA (other than a
Multiemployer Plan or Foreign Pension Plan) in respect of which the Company or any other member of
the Controlled Group is, or within the immediately preceding six (6) years was, an “employer” as
defined in Section 3(5) of ERISA.




          “Borrower” means, as applicable, any of the Company and the Subsidiary Borrowers, together
with their permitted respective successors and assigns; and “Borrowers” shall mean, collectively,
the Company and the Subsidiary Borrowers.




          “Borrowing Date” means a date on which an Advance or Swing Line Loan is made hereunder.




          “Borrowing/Election Notice” is defined in Section 2.7.




          “Business Day” means (i) with respect to any borrowing, payment or rate selection of Loans
bearing interest at the Eurodollar Rate, a day (other than a Saturday or Sunday) on which banks are
open for business in Chicago, Illinois and New York, New York and on which dealings in Dollars and
the other Agreed Currencies are carried on in the London interbank market (and, if the Letter of
Credit which is the subject of such issuance or payment is denominated in euro, a day upon which
such clearing system as is determined by the Administrative Agent to be suitable for clearing or
settlement of the euro is open for business) and (ii) for all other purposes a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois and New York, New
York.




          “Buying Lender” is defined in Section 2.5(B)(ii).




          “Capital Stock” means (i) in the case of a corporation, corporate stock, (ii) in the case of
an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iii) in the case of a partnership,
partnership interests (whether general or limited) and (iv) any other interest or participation
that confers on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.




          “Capitalized Lease” of a Person means any lease of property by such Person as lessee which
would be capitalized on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.




          “Capitalized Lease Obligations” of a Person means the amount of the obligations of such Person
under Capitalized Leases which would be capitalized on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.




          “Cash Equivalents” means (i) marketable direct obligations issued or unconditionally
guaranteed by the United States government and backed by the full faith and




4









 




credit of the United States government; (ii) domestic and Eurodollar certificates of deposit
and time deposits, bankers’ acceptances and floating rate certificates of deposit issued by any
commercial bank organized under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term indebtedness of which
institution at the time of acquisition is rated A- (or better) by S&P or A3 (or better) by Moody’s,
and which certificates of deposit and time deposits are fully protected against currency
fluctuations for any such deposits with a term of more than ninety (90) days; (iii) shares of money
market, mutual or similar funds having assets in excess of $100,000,000 and the investments of
which are limited to (x) investment grade securities (i.e., securities rated at least Baa by
Moody’s or at least BBB by S&P) and (y) commercial paper of United States and foreign banks and
bank holding companies and their subsidiaries and United States and foreign finance, commercial
industrial or utility companies which, at the time of acquisition, are rated A-1 (or better) by S&P
or P-1 (or better) by Moody’s (all such institutions being, “Qualified Institutions”); (iv)
commercial paper of Qualified Institutions; provided that the maturities of such Cash Equivalents
shall not exceed three hundred sixty-five (365) days from the date of acquisition thereof; and (v)
auction rate securities (long-term, variable rate bonds tied to short-term interest rates) that are
rated Aaa by Moody’s or AAA by S&P.




          “Change” is defined in Section 4.2.




          “Change of Control” means an event or series of events by which:





     (i) any “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule
13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of twenty
percent (20%) or more of the voting power of the then outstanding Capital Stock of the
Company entitled to vote generally in the election of the directors of the Company; or




     (ii) the majority of the board of directors of the Company fails to consist of
Continuing Directors; or




     (iii) except as expressly permitted under the terms of this Agreement, the Company
or any Subsidiary Borrower consolidates with or merges into another Person or conveys,
transfers or leases all or substantially all of its property to any Person, or any
Person consolidates with or merges into the Company or any Subsidiary Borrower, in
either event pursuant to a transaction in which the outstanding Capital Stock of the
Company or such Subsidiary Borrower, as applicable, is reclassified or changed into or
exchanged for cash, securities or other property; or




     (iv) except as otherwise expressly permitted under the terms of this Agreement, the
Company shall cease to own and control all of the economic and voting rights associated
with all of the outstanding Capital Stock of each of the Subsidiary Guarantors or shall
cease to have the power, directly or indirectly, to elect all of the members of the
board of directors of each of the Subsidiary Guarantors.



5









 





          “Closing Date” means October 13, 2006.




          “Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified
from time to time.




          “Commission” means the Securities and Exchange Commission of the United States of America and
any Person succeeding to the functions thereof.




          “Commitment” means, for each Lender, the obligation of such Lender to make Revolving Loans and
to purchase participations in Letters of Credit and to participate in Swing Line Loans not
exceeding the amount set forth on Exhibit A-1 to this Agreement opposite its name thereon under the
heading “Commitment” or in the Assignment Agreement by which it became a Lender, as such amount may
be modified from time to time pursuant to the terms of this Agreement or to give effect to any
applicable Assignment Agreement.




          “Commitment Increase Notice” is defined in Section 2.5(B)(i).




          “Company” means Chicago Bridge & Iron Company N.V., a corporation organized under the laws of
The Kingdom of the Netherlands.




          “Computation Date” is defined in Section 2.4(B).




          “Consolidated Fixed Charges” means, for any period, the sum of (i) Consolidated Long-Term
Lease Rentals for such period and (ii) consolidated interest expense of the Company and its
Subsidiaries (including capitalized interest and the interest component of Capitalized Leases) for
such period.




          “Consolidated Long-Term Lease Rentals” means, for any period, the sum of the minimum amount of
rental and other obligations of the Company and its Subsidiaries required to be paid during such
period under all leases of real or personal property (other than Capital Leases) having a term
(including any required renewals or extensions or any renewals or extensions at the option of the
lessor or lessee) of one year or more after the commencement of the initial term, determined on a
consolidated basis in accordance with GAAP.




          “Consolidated Net Income” means, for any period, the net income (or deficit) of the Company
and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP,
but excluding in any event (a) any extraordinary gain or loss (net of any tax effect) and (b) net
earnings of any Person (other than a Subsidiary) in which the Company or any Subsidiary has an
ownership interest unless such net earnings shall have actually been received by the Company or
such Subsidiary in the form of cash distributions.




          “Consolidated Net Income Available for Fixed Charges” means, for any period, Consolidated Net
Income plus, to the extent deducted in determining such Consolidated Net Income, (i) provisions for
income taxes and (ii) Consolidated Fixed Charges.




          “Consolidated Net Worth” means, at a particular date, all amounts which would be included
under shareholders’ or members’ equity on the consolidated balance sheet for the Company and its
consolidated Subsidiaries plus any preferred stock of the Company to the extent





6









 







that it has not been redeemed for indebtedness, as determined in accordance with Agreement
Accounting Principles.




          “Contaminant” means any waste, pollutant, hazardous substance, toxic substance, hazardous
waste, special waste, petroleum or petroleum-derived substance or waste, asbestos, polychlorinated
biphenyls (“PCBs”), or any constituent of any such substance or waste, and includes but is not
limited to these terms as defined in Environmental, Health or Safety Requirements of Law.




          “Contingent Obligation”, as applied to any Person, means any Contractual Obligation,
contingent or otherwise, of that Person with respect to any Indebtedness of another or other
obligation or liability of another, including, without limitation, any such Indebtedness,
obligation or liability of another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise directly or indirectly
liable, including Contractual Obligations (contingent or otherwise) arising through any agreement
to purchase, repurchase, or otherwise acquire such Indebtedness, obligation or liability or any
security therefor, or to provide funds for the payment or discharge thereof (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise), or to maintain solvency,
assets, level of income, or other financial condition, or to make payment other than for value
received. The amount of any Contingent Obligation shall be equal to the present value of the
portion of the obligation so guaranteed or otherwise supported, in the case of known recurring
obligations, and the maximum reasonably anticipated liability in respect of the portion of the
obligation so guaranteed or otherwise supported assuming such Person is required to perform
thereunder, in all other cases.




          “Continuing Director” means, with respect to any person as of any date of determination, any
member of the board of directors of such Person who (a) was a member of such board of directors on
the Closing Date, or (b) was nominated for election or elected to such board of directors with the
approval of the required majority of the Continuing Directors who were members of such board at the
time of such nomination or election; provided that an individual who is so elected or nominated in
connection with a merger, consolidation, acquisition or similar transaction shall not be a
Continuing Director unless such individual was a Continuing Director prior thereto.




          “Contractual Obligation”, as applied to any Person, means any provision of any equity or debt
securities issued by that Person or any indenture, mortgage, deed of trust, security agreement,
pledge agreement, guaranty, contract, undertaking, agreement or instrument (including, without
limitation, the Note Purchase Agreement), in any case in writing, to which that Person is a party
or by which it or any of its properties is bound, or to which it or any of its properties is
subject.




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




7









 








          “Controlled Group” means the group consisting of (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the
Company; (ii) a partnership or other trade or business (whether or not incorporated) which is under
common control (within the meaning of Section 414(c) of the Code) with the Company; and (iii) a
member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as
the Company, any corporation described in clause (i) above or any partnership or trade or business
described in clause (ii) above.




          “Country Risk Event” means:





     (i) any law, action or failure to act by any Governmental Authority in the
applicable Borrower’s or Letter of Credit beneficiary’s country which has the effect of:




     (a) changing the Obligations as originally agreed,




     (b) changing the ownership or control by the applicable Borrower or Letter of
Credit beneficiary of its business, or




     (c) preventing or restricting the conversion into or transfer of the applicable
Agreed Currency;




     (ii) force majeure; and




     (iii) any similar event


which, in relation to (i), (ii) and (iii), directly or indirectly, prevents or restricts the
payment or transfer of any amounts owing under the Obligations in the applicable Agreed Currency
into an account designated by the Administrative Agent or applicable Issuing Bank and freely
available to the Administrative Agent or such Issuing Bank.




          “Customary Permitted Liens” means:





     (i) Liens (other than Environmental Liens and Liens in favor of the IRS or the
PBGC) with respect to the payment of taxes, assessments or governmental charges in all
cases which are not yet due or (if foreclosure, distraint, sale or other similar
proceedings shall not have been commenced or any such proceeding after being commenced
is stayed) which are being contested in good faith by appropriate proceedings properly
instituted and diligently conducted and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with Agreement Accounting
Principles;




     (ii) statutory Liens of landlords and Liens of suppliers, mechanics, carriers,
materialmen, warehousemen, service providers or workmen and other similar Liens imposed
by law created in the ordinary course of business for amounts not yet due or which are
being contested in good faith by appropriate proceedings properly instituted and
diligently conducted and with respect to which adequate reserves or



8









 







other appropriate
provisions are being maintained in accordance with Agreement Accounting Principles;




     (iii) Liens (other than Environmental Liens and Liens in favor of the IRS or the
PBGC) incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance or other types of social security benefits
or to secure the performance of bids, tenders, sales, contracts (other than for the
repayment of borrowed money), surety, appeal and performance bonds; provided that (A)
all such Liens do not in the aggregate materially detract from the value of the
Company’s or its Subsidiary’s assets or property taken as a whole or materially impair
the use thereof in the operation of the businesses taken as a whole, and (B) all Liens
securing bonds to stay judgments or in connection with appeals do not secure at any time
an aggregate amount exceeding $5,000,000;




     (iv) Liens arising with respect to zoning restrictions, easements, encroachments,
licenses, reservations, covenants, rights-of-way, utility easements, building
restrictions and other similar charges, restrictions or encumbrances on the use of real
property which do not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business of the Company or
any of its respective Subsidiaries;




     (v) Liens of attachment or judgment with respect to judgments, writs or warrants of
attachment, or similar process against the Company or any of its Subsidiaries which do
not constitute a Default under Section 8.1(H) hereof; and




     (vi) any interest or title of the lessor in the property subject to any operating
lease entered into by the Company or any of its Subsidiaries in the ordinary course of
business.



          “Default” means an event described in Article VIII hereof.




          “Designated Lender” means, with respect to each Designating Lender, each Eligible Designee
designated by such Designating Lender pursuant to Section 14.3(D).




          “Designating Lender” means, with respect to each Designated Lender, the Lender that designated
such Designated Lender pursuant to Section 14.3(D).




          “Designation Agreement” is defined in Section 14.3(D).




          “Disclosed Litigation” is defined in Section 6.7.




          “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to
the date that is ninety-one (91) days after the Termination Date.




9









 








          “DOL” means the United States Department of Labor and any Person succeeding to the functions
thereof.




          “Dollar” and “$” means dollars in the lawful currency of the United States of America.




          “Dollar Amount” of any currency at any date shall mean (i) the amount of such currency if such
currency is Dollars or (ii) the equivalent in such currency of such amount of Dollars if such
currency is any currency other than Dollars, calculated on the basis of the arithmetical mean of
the buy and sell spot rates of exchange of the Administrative Agent for such currency on the London
market at 11:00 a.m., London time, on or as of the most recent Computation Date provided for in
Section 2.4(B).




          “Domestic Subsidiary” means a Subsidiary of the Company organized under the laws of a
jurisdiction located in the United States of America and substantially all of the operations of
which are conducted within the United States.




          “Dutch Banking Act” means means the Dutch Act on the Supervision of Credit Institutions 1992
(Wet toezicht kredietwezen 1992), as amended or restated from time to time.




          “Dutch Exemption Regulation” means the Exemption Regulation dated 26 June 2002 of the Ministry
of Finance of the Netherlands, as promulgated in the Dutch Banking Act.




          “EBIT” means, for any period, on a consolidated basis for the Company and its Subsidiaries,
the sum of the amounts for such period, without duplication, calculated in each case in accordance
with Agreement Accounting Principles, of (i) Net Income, plus (ii) Interest Expense to the extent
deducted in computing Net Income, plus (iii) charges against income for foreign, federal, state and
local taxes to the extent deducted in computing Net Income, plus (iv) any other non-recurring
non-cash charges (excluding any such non-cash charges to the extent any such non-cash charge
becomes, or is expected to become, a cash charge in a later period) to the extent deducted in
computing Net Income, plus (v) extraordinary losses incurred other than in the ordinary course of
business to the extent deducted in computing Net Income, minus (vi) any non-recurring non-cash
credits to the extent added in computing Net Income, minus (vii) extraordinary gains realized other
than in the ordinary course of business to the extent added in computing Net Income.




          “EBITDA” means, for any period, on a consolidated basis for the Company and its Subsidiaries,
the sum of the amounts for such period, without duplication, calculated in each case in accordance
with Agreement Accounting Principles, of (i) EBIT plus (ii) depreciation expense to the extent
deducted in computing Net Income, plus (iii) amortization expense, including, without limitation,
amortization of goodwill and other intangible assets to the extent deducted in computing Net
Income.




          “Effective Commitment Amount” is defined in Section 2.5(B)(i).




          “Eligible Assignee” means a Person that is primarily engaged in the business of commercial
banking and that (A) is an affiliate of a Lender or (B) shall have senior unsecured




10









 







long-term debt ratings which are rated at least BBB (or the equivalent) as publicly announced
by S&P or Fitch Investors Services, Inc. or Baa2 (or the equivalent) as publicly announced by
Moody’s, or shall otherwise be reasonably acceptable to the Administrative Agent and the Issuing
Banks.




          “Eligible Cash Equivalents” means Cash Equivalents consisting of (i) marketable direct
obligations issued or unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government, (ii) domestic and Eurodollar certificates of
deposit and time deposits, bankers’ acceptances and floating rate certificates of deposit issued by
any commercial bank organized under the laws of the United States, any state thereof, the District
of Columbia, any foreign bank, or its branches or agencies, the long-term indebtedness of which
institution at the time of acquisition is rated A- (or better) by S&P or A3 (or better) by Moody’s,
and which certificates of deposit and time deposits are fully protected against currency
fluctuations for any such deposits with a term of more than ninety (90) days, (iii) commercial
paper rated at least A-1 by Standard & Poor’s Ratings Services or P-1 by Moody’s Investors Service,
Inc. and maturing not more than thirty (30) days from the date of issuance or (iv) debt securities
other than commercial paper, the issuer of which shall have a senior unsecured long-term debt
rating from Standard & Poor’s Ratings Services of at least A and which debt securities shall mature
not more than thirty (30) days from the date of issuance.




          “Eligible Designee” means a special purpose corporation, partnership, limited partnership or
limited liability company that is administered by a Lender or an Affiliate of a Lender and (i) is
organized under the laws of the United States of America or any state thereof, (ii) is engaged
primarily in making, purchasing or otherwise investing in commercial loans in the ordinary course
of its business, (iii) issues (or the parent of which issues) commercial paper rated at least A-1
or the equivalent thereof by S&P or the equivalent thereof by Moody’s and (iv) to the extent
required under the Dutch Banking Act and the Dutch Exemption Regulation, is a PMP.




          “EMU” means Economic and Monetary Union as contemplated in the Treaty on European Union.




          “Environmental, Health or Safety Requirements of Law” means all Requirements of Law derived
from or relating to foreign, federal, state and local laws or regulations relating to or addressing
pollution or protection of the environment, or protection of worker health or safety, including,
but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. § 9601 et seq., the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., and
the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., in each case
including any amendments thereto, any successor statutes, and any regulations or guidance
promulgated thereunder, and any state or local equivalent thereof.




          “Environmental Lien” means a lien in favor of any Governmental Authority for (a) any liability
under Environmental, Health or Safety Requirements of Law, or (b) damages arising from, or costs
incurred by such Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.




11









 








          “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock). Equity Interests will not include any Incentive Arrangements or obligations or
payments thereunder.




          “Equivalent Amount” of any currency with respect to any amount of Dollars at any date shall
mean the equivalent in such currency of such amount of Dollars, calculated on the basis of the
arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for such
other currency at 11:00 a.m., London time, on the date on or as of which such amount is to be
determined.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time including (unless the context otherwise requires) any rules or regulations promulgated
thereunder.




          “Escalating L/C” means each Letter of Credit which provides for an increasing face amount from
time to time.




          “euro” and/or “EUR” means the euro referred to in Council Regulation (EC) No. 1103/97 dated
June 17, 1997 passed by the Council of the European Union, or, if different, the then lawful
currency of the member states of the European Union that participate in the third stage of EMU.




          “Eurodollar Base Rate” means, with respect to a Eurodollar Rate Advance for the relevant
Interest Period, the applicable British Bankers’ Association Interest Settlement Rate for deposits
in Dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, and having a maturity equal to such Interest Period,
provided that, (i) if Reuters Screen FRBD is not available to the Administrative Agent for any
reason, the applicable Eurodollar Reference Rate for the relevant Interest Period shall instead be
the applicable British Bankers’ Association Interest Settlement Rate for deposits in Dollars as
reported by any other generally recognized financial information service as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, and having a maturity equal
to such Interest Period, and (ii) if no such British Bankers’ Association Interest Settlement Rate
is available, the applicable Eurodollar Reference Rate for the relevant Interest Period shall
instead be the rate determined by the Administrative Agent to be the rate at which JPMorgan offers
to place deposits in Dollars with first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, in the
approximate amount of JPMorgan’s relevant Eurodollar Loan and having a maturity equal to such
Interest Period.




          “Eurodollar Rate” means, with respect to a Eurodollar Rate Advance for the relevant Interest
Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Interest
Period, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to
such Interest Period, plus (ii) the then Applicable Eurodollar Margin, changing as and when the
Applicable Eurodollar Margin changes, plus (iii) for Eurodollar Rate Advances by a Lender from its
office or branch in the United Kingdom, the Mandatory Cost, plus (iv) any other mandatory costs
imposed by any governmental or regulatory authority.




12









 








          “Eurodollar Rate Advance” means an Advance which bears interest at a Eurodollar Rate.




          “Eurodollar Rate Loan” means a Loan made on a fully syndicated basis pursuant to Section 2.1,
which bears interest at a Eurodollar Rate.




          “Excluded Foreign Subsidiary” means any Foreign Subsidiary other than those listed as Foreign
Subsidiaries on Schedule 1.1.5.




          “Executive Equity Repurchase Payment” means the amount of the payment, if any, up to but not
exceeding $36,500,000 made by the Company to fulfill its contractual obligation to honor the
exercise by a former executive of the Company of a put to the Company of common shares of the
Company on or before January 30, 2007 at a per share price equal to the average of the high and low
share price on the date the put exercise notice is received by the Company.




          “Existing Credit Agreement” means that certain Amended and Restated Credit Agreement dated as
of May 12, 2005 by and among the Company and certain of the Subsidiary Borrowers parties thereto,
the lenders party thereto and JPMorgan as administrative agent.




          “Facility Termination Date” shall mean the date on which all of the Termination Conditions
have been satisfied.




          “Federal Funds Effective Rate” means, for any day, an interest rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if
such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a Business Day, the
average of the quotations at approximately 10:00 a.m. (Chicago time) on such day on such
transactions received by the Administrative Agent from three Federal funds brokers of recognized
standing selected by the Administrative Agent in its sole discretion.




          “Financial Credit Obligations” means the sum of the outstanding principal amount of all Loans
and all Financial L/C Obligations.




          “Financial Credit Sublimit” means, at any time, an amount equal to 50% of the Aggregate
Commitment at such time.




          “Financial L/C Obligations” means, without duplication, an amount equal to the sum of (i) the
aggregate of the Dollar Amount then available for drawing under each of the Financial Letters of
Credit (provided that, with respect to any Escalating L/C which is a Financial Letter of Credit,
such available amount shall equal the maximum Dollar Amount (after giving effect to all possible
increases) available to be drawn under such Escalating L/C), (ii) the Dollar Amount equal to the
stated amount of all outstanding L/C Drafts corresponding to the Financial Letters of Credit, which
L/C Drafts have been accepted by the applicable Issuing Bank, (iii) the aggregate outstanding
Dollar Amount of all Reimbursement Obligations under Financial Letters of Credit at such time and
(iv) the aggregate Dollar Amount equal to the maximum stated amount of all Financial Letters of
Credit requested by the Borrowers but not yet issued or, in the





13









 







case of an Escalating L/C which is a Financial Letter of Credit, the portion of such maximum
stated amount not yet issued (unless the request for an unissued Financial Letter of Credit has
been denied).




          “Financial Letter of Credit” means any letter of credit or Bank Undertaking other than a
Performance Letter of Credit.




          “Financial Officer” means any of the chief financial officer, principal accounting officer,
treasurer or controller of the Company, acting singly.




          “Fixed Charge Coverage Ratio” is defined in Section 7.4(B).




          “Floating Rate” means, for any day for any Loan, a rate per annum equal to the Alternate Base
Rate for such day, changing when and as the Alternate Base Rate changes, plus the then Applicable
Floating Rate Margin.




          “Floating Rate Advance” means an Advance which bears interest at the Floating Rate.




          “Floating Rate Loan” means a Loan, or portion thereof, which bears interest at the Floating
Rate.




          “Foreign Employee Benefit Plan” means any employee benefit plan as defined in Section 3(3) of
ERISA which is maintained or contributed to for the benefit of the employees of the Company, any of
its respective Subsidiaries or any members of its Controlled Group and is not covered by ERISA
pursuant to ERISA Section 4(b)(4).




          “Foreign Pension Plan” means any employee benefit plan as described in Section 3(3) of ERISA
for which the Company or any member of its Controlled Group is a sponsor or administrator and which
(i) is maintained or contributed to for the benefit of employees of the Company, any of its
respective Subsidiaries or any member of its Controlled Group, (ii) is not covered by ERISA
pursuant to Section 4(b)(4) of ERISA, and (iii) under applicable local law, is required to be
funded through a trust or other funding vehicle.




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




          “Funded Issuing Bank” means, at any date of determination, each Issuing Bank which has issued
a Letter of Credit and such Letter of Credit is outstanding as of such date.




          “Governmental Acts” is defined in Section 3.10(A).




          “Governmental Authority” means any nation or government, any federal, state, local or other
political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative authority or functions of or pertaining to government, including any
authority or other quasi-governmental entity established to perform any of such functions.




14









 








          “Gross Negligence” means recklessness, or actions taken or omitted with conscious indifference
to or the complete disregard of consequences or rights of others affected. Gross Negligence does
not mean the absence of ordinary care or diligence, or an inadvertent act or inadvertent failure to
act. If the term “gross negligence” is used with respect to the Administrative Agent or any Lender
or any indemnitee in any of the other Loan Documents, it shall have the meaning set forth herein.




          “Guaranteed Obligations” is defined in Section 10.1.




          “Guarantor(s)” shall mean the Company and the Subsidiary Guarantors.




          “Guaranty” means each of (i) the guaranty by the Company and each Subsidiary Borrower of all
of the Obligations of Company and the Subsidiary Borrowers pursuant to this Agreement and (ii) the
Subsidiary Guaranty, in each case, as amended, restated, supplemented or otherwise modified from
time to time.




          “Hedging Arrangements” is defined in the definition of Hedging Obligations below.




          “Hedging Obligations” of a Person means any and all obligations of such Person, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
(i) any and all agreements, devices or arrangements designed to protect at least one of the parties
thereto from the fluctuations of interest rates, commodity prices, exchange rates or forward rates
applicable to such party’s assets, liabilities or exchange transactions, including, but not limited
to, dollar-denominated or cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements, forward rate currency or
interest rate options, puts and warrants or any similar derivative transactions (“Hedging
Arrangements”), and (ii) any and all cancellations, buy backs, reversals, terminations or
assignments of any of the foregoing.




          “Incentive Arrangements” means any stock ownership, restricted stock, stock option, stock
appreciation rights, “phantom” stock plans, employment agreements, non-competition agreements,
subscription and stockholders agreements and other incentive and bonus plans and similar
arrangements made in connection with the retention of executives, officers or employees of the
Company and its Subsidiaries.




          “Indebtedness” of a Person means, without duplication, such Person’s (a) obligations for
borrowed money, (b) obligations representing the deferred purchase price of property or services
(other than (i) accounts payable arising in the ordinary course of such Person’s business payable
on terms customary in the trade, and (ii) earnouts or other similar forms of contingent purchase
prices), (c) obligations, whether or not assumed, secured by Liens or payable out of the proceeds
or production from property or assets now or hereafter owned or acquired by such Person, (d)
obligations which are evidenced by notes, acceptances or other instruments, (e) Capitalized Lease
Obligations, (f) Contingent Obligations, (g) obligations with respect to any letters of credit,
bank guarantees and similar instruments, including, without





15









 







limitation, Financial Letters of Credit and Performance Letters of Credit, and all
reimbursement agreements related thereto, (h) Off-Balance Sheet Liabilities and (j) Disqualified
Stock.




          “Indemnified Matters” is defined in Section 11.7(B).




          “Indemnitees” is defined in Section 11.7(B).




          “Interest Expense” means, for any period, the total gross interest expense of the Company and
its consolidated Subsidiaries, whether paid or accrued, including, without duplication, the
interest component of Capitalized Leases, commitment and letter of credit fees, the discount or
implied interest component of Off-Balance Sheet Liabilities, capitalized interest expense,
pay-in-kind interest expense, amortization of debt documents and net payments (if any) pursuant to
Hedging Arrangements relating to interest rate protection, all as determined in conformity with
Agreement Accounting Principles.




          “Interest Period” means with respect to a Eurodollar Rate Loan, a period of one (1), two (2),
three (3) months or six (6) months, commencing on a Business Day selected by the applicable
Borrower on which a Eurodollar Rate Advance is made to such Borrower pursuant to this Agreement.
Such Interest Period shall end on (but exclude) the day which corresponds numerically to such date
one, two, three or six months thereafter; provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such Interest Period shall
end on the last Business Day of such next, second, third or sixth succeeding month. If an Interest
Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on
the next succeeding Business Day, provided, however, that if said next succeeding Business Day
falls in a new calendar month, such Interest Period shall end on the immediately preceding Business
Day.




          “Investment” means, with respect to any Person, (i) any purchase or other acquisition by that
Person of any Indebtedness, Equity Interests or other securities, or of a beneficial interest in
any Indebtedness, Equity Interests or other securities, issued by any other Person, (ii) any
purchase by that Person of all or substantially all of the assets of a business (whether of a
division, branch, unit operation, or otherwise) conducted by another Person; (iii) any loan,
advance (other than deposits with financial institutions available for withdrawal on demand,
prepaid expenses, accounts receivable, advances to employees and similar items made or incurred in
the ordinary course of business) or capital contribution actually invested by that Person to any
other Person (but excluding any subsequent passive increases or accretions to the value of such
initial capital contribution), including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business; and (iv) any non-arms
length transaction by such Person with another Person or any other transfer of assets by such
Person in another Person, with the amount of such Investment being an amount equal to the net
benefit derived by such other Person resulting from any such transactions.




          “IRS” means the Internal Revenue Service and any Person succeeding to the functions thereof.




          “Issuing Banks” means JPMorgan or any of its Affiliates or any of the other Lenders identified
on Exhibit A-2 hereto (as amended or supplemented from time to time) in its





16









 







separate capacity as an issuer of Letters of Credit pursuant to Section 3.1. The designation
of any Lender as an Issuing Bank after the Closing Date shall be subject to the prior written
consent of such designee and the Administrative Agent.




          “JPMorgan” means JPMorgan Chase Bank, National Association, in its individual capacity, and
its successors.




          “JPMSI” means J.P. Morgan Securities Inc, and its successors.




          “L/C Collateral Account” is defined in Section 3.12.




          “L/C Documents” is defined in Section 3.4.




          “L/C Draft” means a draft drawn on an Issuing Bank pursuant to a Letter of Credit.




          “L/C Interest” is defined in Section 3.6.




          “L/C Obligations” means, without duplication, an amount equal to the sum of (i) the aggregate
of the Dollar Amount then available for drawing under each of the Letters of Credit (provided that,
with respect to any Escalating L/C, such available amount shall equal the maximum Dollar Amount
(after giving effect to all possible increases) available to be drawn under such Escalating L/C),
(ii) the Dollar Amount equal to the stated amount of all outstanding L/C Drafts corresponding to
the Letters of Credit, which L/C Drafts have been accepted by the applicable Issuing Bank, (iii)
the aggregate outstanding Dollar Amount of all Reimbursement Obligations at such time and (iv) the
aggregate Dollar Amount equal to the maximum stated amount of all Letters of Credit requested by
the Borrowers but not yet issued or, in the case of an Escalating L/C, the portion of such maximum
stated amount not yet issued (unless the request for an unissued Letter of Credit has been denied).




          “Lenders” means the lending institutions listed on the signature pages of this Agreement and
their respective successors and assigns.




          “Lender Increase Notice” is defined in Section 2.5(B)(i).




          “Lending Installation” means, with respect to a Lender or the Administrative Agent, any
office, branch, subsidiary or affiliate of such Lender or the Administrative Agent listed on the
signature pages of this Agreement for such Lender, or on the administrative information sheets
provided to the Administrative Agent in connection herewith or otherwise selected by such Lender or
the Administrative Agent pursuant to Section 2.16.




          “Letter of Credit” means the Performance Letters of Credit and Financial Letters of Credit to
be (a) issued by the Issuing Banks pursuant to Section 3.1 hereof or (b) deemed issued by the
Issuing Banks pursuant to Section 3.2 hereof.




          “Letter
of Credit Agreement” means collectively, those certain Letter of
Credit and Term Loan Agreements among
the Company and certain of its Subsidiaries as co-obligors, Bank of America, N.A. (“BofA”), as
administrative agent, BofA and JPMorgan, as L/C issuers, and the lenders





17









 







parties
thereto, providing for supplemental term letter of credit facilities
in an aggregate cumulative principal amount not to exceed $400,000,000 and on terms and conditions satisfactory to the
Administrative Agent.




          “Leverage Ratio” is defined in Section 7.4(A).




          “Lien” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).




          “Loan Account” is defined in Section 2.12(A).




          “Loan Documents” means this Agreement, each Assumption Letter executed hereunder, the
Subsidiary Guaranty and all other documents, instruments, notes and agreements executed in
connection therewith or contemplated thereby, as the same may be amended, restated or otherwise
modified and in effect from time to time.




          “Loan Parties” means, at any time, the Company, each Subsidiary Borrower that is a party
hereto as of such time and each of the Guarantors.




          “Loan(s)” means, with respect to a Lender, such Lender’s portion of any Advance made pursuant
to Section 2.1 hereof, and in the case of the Swing Line Bank, any Swing Line Loan made pursuant to
Section 2.2 hereof, and collectively all Revolving Loans and Swing Line Loans, whether made or
continued as or converted to Floating Rate Loans or Eurodollar Rate Loans.




          “Mandatory Cost” is described in Exhibit A-3 hereto.




          “Margin Stock” shall have the meaning ascribed to such term in Regulation U.




          “Market Disruption” is defined in Section 2.11.




          “Material Adverse Effect” means a material adverse effect upon (a) the business, condition
(financial or otherwise), operations, performance, properties, results of operations or prospects
of the Company, any other Borrower, or the Company and its Subsidiaries, taken as a whole, (b) the
collective ability of the Company or any of its Subsidiaries to perform their respective
obligations under the Loan Documents, or (c) the ability of the Lenders or the Administrative Agent
to enforce the Obligations; it being understood and agreed that the occurrence of a Product
Liability Event shall not constitute an event which causes a “Material Adverse Effect” unless and
until the aggregate amount of, or attributable to, Product Liability Events (to the extent not
covered by third-party insurance as to which the insured does not dispute coverage) exceeds, during
any period of twelve (12) consecutive months, the greater of (x) $20,000,000 and (y) 20% of EBITDA
(for the then most recently completed period of four fiscal quarters of the Company).




          “Material Indebtedness” is defined in Section 8.1(E).




18









 








          “Material Subsidiary” means, without duplication, (a) each Borrowing Subsidiary and (b) any
Subsidiary that directly or indirectly owns or Controls any Borrowing Subsidiary or other Material
Subsidiary and (c) any other Subsidiary (i) the consolidated net revenues of which for the most
recent fiscal year of the Company for which audited financial statements have been delivered
pursuant to Section 7.01(A)(ii) were greater than five percent (5%) of the Company’s consolidated
net revenues for such fiscal year or (ii) the consolidated tangible assets of which as of the end
of such fiscal year were greater than five percent (5%) of the Company’s consolidated tangible
assets as of such date; provided that, if at any time the aggregate amount of the consolidated net
revenues or consolidated tangible assets of all Subsidiaries that are not Material Subsidiaries
exceeds twenty percent (20%) of the Company’s consolidated net revenues for any such fiscal year or
twenty percent (20%) of the Company’s consolidated tangible assets as of the end of any such fiscal
year, the Company (or, in the event the Company has failed to do so within 10 days, the
Administrative Agent) shall designate sufficient Subsidiaries as “Material Subsidiaries” to
eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement
constitute Material Subsidiaries. For purposes of making the determinations required by this
definition, revenues and assets of Foreign Subsidiaries shall be converted into Dollars at the
rates used in preparing the consolidated balance sheet of the Company included in the applicable
financial statements. The Material Subsidiaries on the Closing Date are identified in Schedule
1.1.5 hereto.




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




          “Multiemployer Plan” means a “Multiemployer Plan” as defined in Section 4001(a)(3) of ERISA
which is, or within the immediately preceding six (6) years was, contributed to by either the
Company or any member of the Controlled Group.




          “Net Cash Proceeds” means, with respect to any Asset Sale or Sale and Leaseback Transaction by
any Person, (a) cash or Cash Equivalents (freely convertible into Dollars) received by such Person
or any Subsidiary of such Person from such Asset Sale or Sale and Leaseback Transaction (including
cash received as consideration for the assumption or incurrence of liabilities incurred in
connection with or in anticipation of such Asset Sale or Sale and Leaseback Transaction), after (i)
provision for all income or other taxes measured by or resulting from such Asset Sale or Sale and
Leaseback Transaction, (ii) payment of all brokerage commissions and other fees and expenses and
commissions related to such Asset Sale or Sale and Leaseback Transaction, and (iii) all amounts
used to repay Indebtedness (and any premium or penalty thereon) secured by a Lien on any asset
disposed of in such Asset Sale or Sale and Leaseback Transaction or which is or may be required (by
the express terms of the instrument governing such Indebtedness or by applicable law) to be repaid
in connection with such Asset Sale or Sale and Leaseback Transaction (including payments made to
obtain or avoid the need for the consent of any holder of such Indebtedness); and (b) cash or Cash
Equivalents payments in respect of any other consideration received by such Person or any
Subsidiary of such Person from such Asset Sale or Sale and Leaseback Transaction upon receipt of
such cash payments by such Person or such Subsidiary.




          “Net Income” means, for any period, the net earnings (or loss) after taxes of the Company and
its Subsidiaries on a consolidated basis for such period taken as a single accounting period
determined in conformity with Agreement Accounting Principles.




19









 








          “New Money Credit Event” means, with respect to any Issuing Bank, any increase (directly or
indirectly) in such Issuing Bank’s exposure (whether by way of additional credit or banking
facilities or otherwise, including as part of a restructuring) to the applicable Borrower, any
Governmental Authority in such Borrower’s or any applicable Letter of Credit beneficiary’s country
occurring by reason of (i) any law, action or requirement of any Governmental Authority in such
Borrower’s or such Letter of Credit beneficiary’s country, or (ii) any request in respect of
external indebtedness of borrowers in such Borrowers or such Letter of Credit beneficiary’s country
applicable to banks generally which conduct business with such borrowers, or (iii) any agreement in
relation to clause (i) or (ii), in each case to the extent calculated by reference to the
Obligations outstanding prior to such increase.




          “Note Purchase Agreement” means that certain Note Purchase Agreement dated as of July 1, 2001
among the Company and the purchasers parties thereto.




          “Notice of Assignment” is defined in Section 14.3(B).




          “Obligations” means all Loans, L/C Obligations, advances, debts, liabilities, obligations,
covenants and duties owing, by the Borrowers or any of their Subsidiaries to the Administrative
Agent, any Lender, the Swing Line Bank, the Arrangers, any Affiliate of the Administrative Agent or
any Lender, any Issuing Bank, any Indemnitee, of any kind or nature, present or future, arising
under this Agreement, the L/C Documents or any other Loan Document, whether or not evidenced by any
note, guaranty or other instrument, whether or not for the payment of money, whether arising by
reason of an extension of credit, loan, foreign exchange risk, guaranty, indemnification, or in any
other manner, whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges, expenses, fees, attorneys’ fees and
disbursements, paralegals’ fees (in each case whether or not allowed), and any other sum chargeable
to the Company or any of its Subsidiaries under this Agreement or any other Loan Document.




          “Off-Balance Sheet Liabilities” of a Person means (a) any repurchase obligation or liability
of such Person or any of its Subsidiaries with respect to Receivables sold by such Person or any of
its Subsidiaries, (b) any liability of such Person or any of its Subsidiaries under any sale and
leaseback transactions which do not create a liability on the consolidated balance sheet of such
Person, (c) any liability of such Person or any of its Subsidiaries under any financing lease or
so-called “synthetic lease” or “tax ownership operating lease” transaction, or (d) any obligations
of such Person or any of its Subsidiaries arising with respect to any other transaction which is
the functional equivalent of or takes the place of borrowing but which does not constitute a
liability on the consolidated balance sheets of such Person and its Subsidiaries.




          “Other Taxes” is defined in Section 2.14(E)(ii).




          “Participants” is defined in Section 14.2(A).




          “Payment Date” means the last Business Day of each quarter, the Termination Date and the
Facility Termination Date.




20









 








          “PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.




          “Performance Letter of Credit” means a letter of credit or Bank Undertaking issued to secure
ordinary course performance obligations of the Company or a Subsidiary in connection with active
construction projects (including projects about to be commenced) or bids for prospective
construction projects.




          “Permitted Acquisition” is defined in Section 7.3(F).




          “Permitted Existing Contingent Obligations” means the Contingent Obligations of the Company
and its Subsidiaries identified as such on Schedule 1.1.4 to this Agreement.




          “Permitted Existing Indebtedness” means the Indebtedness of the Company and its Subsidiaries
identified as such on Schedule 1.1.1 to this Agreement.




          “Permitted Existing Investments” means the Investments of the Company and its Subsidiaries
identified as such on Schedule 1.1.2 to this Agreement.




          “Permitted Existing Liens” means the Liens on assets of the Company and its Subsidiaries
identified as such on Schedule 1.1.3 to this Agreement.




          “Permitted Sale and Leaseback Transactions” means (a) (i) any Sale and Leaseback Transaction
of the Company’s administrative headquarters facility in The Woodlands, Texas and (ii) any Sale and
Leaseback Transaction of all or any portion of the Company’s other property, in each case on terms
acceptable to the Administrative Agent and only to the extent that the aggregate amount of Net Cash
Proceeds from all such Permitted Sale and Leaseback Transactions is less than or equal to
$50,000,000 and (b) any Sale and Leaseback Transaction of the Company’s facility in Plainfield,
Illinois.




          “Person” means any individual, corporation, firm, enterprise, partnership, trust, incorporated
or unincorporated association, joint venture, joint stock company, limited liability company or
other entity of any kind, or any government or political subdivision or any agency, department or
instrumentality thereof.




          “Plan” means an employee benefit plan defined in Section 3(3) of ERISA, other than a
Multiemployer Plan, in respect of which the Company or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an “employer” as defined in Section 3(5) of
ERISA.




          “PMP” shall have the meaning set forth in Schedule 1.1.6.




          “Prime Rate” means the prime rate of interest announced by JPMorgan from time to time (which
is not necessarily the lowest rate charged to any customer), changing when and as said prime rate
changes.




          “Proposed New Lender” is defined in Section 2.5(B)(i).




21









 








          “Pro Rata Share” means, with respect to any Lender, the percentage obtained by dividing (A)
the Lender’s Commitment at such time (in each case, as adjusted from time to time in accordance
with the provisions of this Agreement) by (B) the Aggregate Commitment at such time; provided,
however, if the Commitments are terminated pursuant to the terms of this Agreement, then “Pro Rata
Share” means the percentage obtained by dividing (x) the sum of (A) such Lender’s Revolving Loans,
plus (B) such Lender’s share of the obligations to purchase participations in Swing Line Loans and
Letters of Credit, by (y) the sum of (A) the aggregate outstanding amount of Revolving Loans, plus
(B) the aggregate outstanding amount of all Swing Line Loans and the Dollar Amount of all Letters
of Credit.




          “Product Liability Event” means, solely in connection with asbestos-related claims and
litigation, (i) the entry of one or more final judgments or orders against the Company or any
Subsidiary, or (ii) the Company or any Subsidiary (a) enters into settlements for the payment of
money or (b) pays any legal expenses associated with such judgment, orders or settlements and any
and all other aspects of any claims and litigation associated therewith, and with respect to such
judgments or orders, (A) enforcement proceedings are commenced by any creditor upon such judgment
or order, or (B) there is a period of 30 consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect.




          “Purchasers” is defined in Section 14.3(A)(i).




          “Rate Option” means the Eurodollar Rate or the Floating Rate, as applicable.




          “Receivable(s)” means and includes all of the Company’s and its consolidated Subsidiaries’
presently existing and hereafter arising or acquired accounts, accounts receivable, and all present
and future rights of the Company or its Subsidiaries, as applicable, to payment for goods sold or
leased or for services rendered (except those evidenced by instruments or chattel paper), whether
or not they have been earned by performance, and all rights in any merchandise or goods which any
of the same may represent, and all rights, title, security and guaranties with respect to each of
the foregoing, including, without limitation, any right of stoppage in transit.




          “Register” is defined in Section 14.3(C).




          “Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor or other regulation or official interpretation of
said Board of Governors relating to the extension of credit by and to brokers and dealers of
securities for the purpose of purchasing or carrying margin stock (as defined therein).




          “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor or other regulation or official interpretation of
said Board of Governors relating to the extension of credit by banks, non-banks and non-broker
lenders for the purpose of purchasing or carrying Margin Stock applicable to member banks of the
Federal Reserve System.




          “Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor or other regulation or official





22









 







interpretation of said Board of Governors relating to the extension of credit by foreign
lenders for the purpose of purchasing or carrying margin stock (as defined therein).




          “Reimbursement Obligation” is defined in Section 3.7.




          “Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor environment, including the
movement of Contaminants through or in the air, soil, surface water or groundwater.




          “Replacement Lender” is defined in Section 2.19.




          “Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section, with respect to a Plan, excluding, however, such events as
to which the PBGC by regulation or otherwise waived the requirement of Section 4043(a) of ERISA
that it be notified within thirty (30) days after such event occurs, provided, however, that a
failure to meet the minimum funding standards of Section 412 of the Code and of Section 302 of
ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.




          “Required Lenders” means Lenders whose Pro Rata Shares, in the aggregate, are greater than
fifty percent (50%); provided, however, that, if any of the Lenders shall have failed to fund its
Pro Rata Share of (i) any Revolving Loan requested by the applicable Borrower, (ii) any Revolving
Loan required to be made in connection with reimbursement for any L/C Obligations, (iii) any
participation in any Swing Line Loan as requested by the Administrative Agent, which such Lenders
are obligated to fund under the terms of this Agreement and any such failure has not been cured,
then for so long as such failure continues, “Required Lenders” means Lenders (excluding all Lenders
whose failure to fund their respective Pro Rata Shares of such Revolving Loans or any participation
in Swing Line Loans has not been so cured) whose Pro Rata Shares represent greater than fifty
percent (50%) of the aggregate Pro Rata Shares of such Lenders; provided further, however, that, if
the Commitments have been terminated pursuant to the terms of this Agreement, “Required Lenders”
means Lenders (without regard to the Lenders’ performance of their respective obligations
hereunder) whose aggregate ratable shares (stated as a percentage) of the aggregate outstanding
principal balance of the sum of all Loans and L/C Obligations are greater than fifty percent (50%).




          “Requirements of Law” means, as to any Person, the charter and by-laws or other organizational
or governing documents of such Person, and any law, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities Exchange Act of 1934,
Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker Adjustment and Retraining
Notification Act, Americans with Disabilities Act of 1990, and any certificate of occupancy, zoning
ordinance, building, environmental or land use requirement or permit or environmental, labor,
employment, occupational safety or health law, rule or regulation, including Environmental, Health
or Safety Requirements of Law.




23









 








          “Reserve Requirement” means, with respect to an Interest Period, the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other reserves) which is imposed under
Regulation D on Eurodollar liabilities.




          “Restricted Payment” means (i) any dividend or other distribution, direct or indirect, on
account of any Equity Interests of the Company or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in such Person’s Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock, (ii)
any redemption, retirement, purchase or other acquisition for value, direct or indirect, of any
Equity Interests of the Company or any of its Subsidiaries now or hereafter outstanding, other than
in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of other Equity Interests of the Company or any of its Subsidiaries
(other than Disqualified Stock), (iii) any payment or prepayment of principal of, or interest
(whether in cash or as payment-in-kind), premium, if any, fees or other charges with respect to,
any Indebtedness subordinated to the Obligations, or any redemption, purchase, retirement,
defeasance, prepayment or other acquisition for value, direct or indirect, of any Indebtedness
other than (a) the Obligations and (b) any scheduled payments of principal of or interest with
respect to Company’s Indebtedness issued pursuant to the Note Purchase Agreement or the Letter of
Credit Agreement, (iv) any payment of a claim for the rescission of the purchase or sale of, or for
material damages arising from the purchase or sale of, any Indebtedness (other than the
Obligations) or any Equity Interests of the Company or any of its Subsidiaries, or of a claim for
reimbursement, indemnification or contribution arising out of or related to any such claim for
damages or rescission and (v) any payment in respect of a purchase price adjustment, earn-out or
other similar form of contingent purchase price.




          “Revolving Credit Availability” means, at any particular time, the amount by which the
Adjusted Aggregate Commitment at such time exceeds the Revolving Credit Obligations outstanding at
such time.




          “Revolving Credit Obligations” means, at any particular time, the sum of (i) the outstanding
principal amount of the Revolving Loans at such time, plus (ii) the outstanding principal amount of
the Swing Line Loans at such time, plus (iii) the outstanding L/C Obligations at such time.




          “Revolving Loan” is defined in Section 2.1.




          “Risk-Based Capital Guidelines” is defined in Section 4.2.




          “S&P” means Standard & Poor’s Ratings Group, a division of McGraw-Hill, Inc.




          “Sale and Leaseback Transaction” means any lease, whether an operating lease or a Capitalized
Lease, of any property (whether real or personal or mixed), (i) which the Company or one of its
Subsidiaries sold or transferred or is to sell or transfer to any other Person, or (ii) which the
Company or one of its Subsidiaries intends to use for substantially the same purposes as any other
property which has been or is to be sold or transferred by the Company or one of its Subsidiaries
to any other Person in connection with such lease.




          “Securities Act” means the Securities Act of 1933, as amended from time to time.




24









 








          “Selling Lender” is defined in Section 2.5(B)(ii).




          “Single Employer Plan” means a Plan maintained by the Company or any member of the Controlled
Group for employees of the Company or any member of the Controlled Group.




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





     (i) the fair value of its assets (both at fair valuation and at present fair
saleable value) is equal to or in excess of the total amount of its liabilities,
including, without limitation, contingent liabilities; and




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




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


With respect to contingent liabilities (such as litigation, guarantees and pension plan
liabilities), such liabilities shall be computed at the amount which, in light of all the facts and
circumstances existing at the time, represent the amount which can be reasonably be expected to
become an actual or matured liability.




          “Subsidiary” means, as to any Person, any corporation, association or other business entity in
which such Person or one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such entity, and any partnership, limited liability company or
joint venture if more than 50% interest in the profits or capital thereof is owned by such Person
or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries (unless such
partnership, limited liability company or joint venture can and does ordinarily take major business
actions without the prior approval of such Person or one or more of its Subsidiaries). Unless the
context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary
of the Company




          “Subsidiary Borrower” means any Subsidiaries of the Company duly designated by the Company
pursuant to Section 2.20 to request Advances hereunder, which Subsidiary shall have delivered to
the Administrative Agent an Assumption Letter in accordance with Section 2.20 and such other
documents as may be required pursuant to this Agreement, in each case together with its respective
successors and assigns, including a debtor-in-possession on behalf of such Subsidiary Borrower.




          “Subsidiary Guarantor(s)” means (a) each Subsidiary Borrower, (b) all of the Company’s
Material Subsidiaries (other than any Excluded Foreign Subsidiary); (c) all New Subsidiaries which
are Material Subsidiaries and which have or are required to have satisfied the provisions of
Section 7.2(K)(i); (d) all of the Company’s Subsidiaries which become Material Subsidiaries and
which have satisfied or are required to have satisfied the provisions of Section 7.2(K)(ii); and
(e) all other Subsidiaries which become Subsidiary Guarantors in satisfaction of





25









 







the provisions of Section 7.2(K)(iii) or Section 7.3(Q), in each case with respect to clauses
(a) through (e) above, and together with their respective successors and assigns.




          “Subsidiary Guaranty” means that certain Subsidiary Guaranty, dated as of August 22, 2003
executed by each of Subsidiary Guarantors as of such date (and any and all supplements thereto
executed from time to time by each additional Subsidiary Guarantor) in favor of the Administrative
Agent in substantially the form of Exhibit H attached hereto, as the same may be amended, restated,
supplemented or otherwise modified from time to time.




          “Substantial Portion” means, with respect to the assets of the Company and its Subsidiaries,
assets which (i) represent more than 10% of the consolidated assets of the Company and its
Subsidiaries as would be shown in the consolidated financial statements of the Company and its
Subsidiaries as at the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) are responsible for more than 10% of the consolidated net sales or
of the consolidated net income of the Company and its Subsidiaries as reflected in the financial
statements referred to in clause (i) above.




          “Swing Line Bank” means JPMorgan or any other Lender as a successor Swing Line Bank pursuant
to the terms hereof.




          “Swing Line Commitment” means the commitment of the Swing Line Bank to make Swing Line Loans
up to a maximum principal amount of Twenty-Five Million and 00/100 Dollars ($25,000,000) at any one
time outstanding.




          “Swing Line Loan” means a Loan made available to the applicable Borrower by the Swing Line
Bank pursuant to Section 2.2 hereof.




          “Taxes” is defined in Section 2.14(E)(i).




          “Termination Conditions” is defined in Section 2.18.




          “Termination Date” means the earlier of (a) October 13, 2011, and (b) the date of termination
in whole of the Aggregate Commitment pursuant to Section 2.5 hereof or the Commitments pursuant to
Section 9.1 hereof.




          “Termination Event” means (i) a Reportable Event with respect to any Benefit Plan; (ii) the
withdrawal of the Company or any member of the Controlled Group from a Benefit Plan during a plan
year in which the Company or such Controlled Group member was a “substantial employer” as defined
in Section 4001(a)(2) of ERISA or the cessation of operations which results in the termination of
employment of twenty percent (20%) of Benefit Plan participants who are employees of the Company or
any member of the Controlled Group; (iii) the imposition of an obligation on the Company or any
member of the Controlled Group under Section 4041 of ERISA to provide affected parties written
notice of intent to terminate a Benefit Plan in a distress termination described in Section 4041(c)
of ERISA; (iv) the institution by the PBGC or any similar foreign governmental authority of
proceedings to terminate a Benefit Plan or Foreign Pension Plan; (v) any event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Benefit Plan; (vi) that a foreign governmental authority shall appoint
or institute proceedings to appoint a





26









 







trustee to administer any Foreign Pension Plan in place of the existing administrator, or
(vii) the partial or complete withdrawal of the Company or any member of the Controlled Group from
a Multiemployer Plan or Foreign Pension Plan.




          “Transferee” is defined in Section 14.5.




          “Treaty on European Union” means the Treaty of Rome of March 25, 1957, as amended by the
Single European Act 1986 and the Maastricht Treaty (which was signed at Maastricht on February 7,
1992 and came into force on November 1, 1993), as amended from time to time.




          “Type” means, with respect to any Loan, its nature as a Floating Rate Loan or a Eurodollar
Rate Loan.




          “Unfunded Liabilities” means (i) in the case of Single Employer Plans, the amount (if any) by
which the aggregate accumulated benefit obligations exceeds the aggregate fair market value of
assets of present value of all vested nonforfeitable benefits under all Single Employer Plans as of
the most recent measurement date, all as determined under FAS 87 using the methods and assumptions
used by the Company for financial accounting purposes, and (ii) in the case of Multiemployer Plans,
the withdrawal liability that would be incurred by the Controlled Group if all members of the
Controlled Group completely withdrew from all Multiemployer Plans.




          “Unmatured Default” means an event which, but for the lapse of time or the giving of notice,
or both, would constitute a Default.




          1.2. Singular/Plural References; Accounting Terms. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the defined terms. Any accounting terms used
in this Agreement which are not specifically defined herein shall have the meanings customarily
given them in accordance with Agreement Accounting Principles.




          1.3. References. Any references to the Company’s Subsidiaries shall not in any way be
construed as consent by the Administrative Agent or any Lender to the establishment, maintenance or
acquisition of any Subsidiary, except as may otherwise be permitted hereunder.




          1.4. Supplemental Disclosure. At any time at the request of the Administrative Agent and at
such additional times as the Company determines, the Company shall supplement each schedule or
representation herein or in the other Loan Documents with respect to any matter hereafter arising
which, if existing or occurring at the date of this Agreement, would have been required to be set
forth or described in such schedule or as an exception to such representation or which is necessary
to correct any information in such schedule or representation which has been rendered inaccurate
thereby. Notwithstanding that any such supplement to such schedule or representation may disclose
the existence or occurrence of events, facts or circumstances which are either prohibited by the
terms of this Agreement or any other Loan Documents or which result in the breach of any
representation or warranty, such supplement to such schedule or representation shall not be deemed
either an amendment thereof or a waiver of such breach unless expressly consented to in writing by
Administrative Agent and the Required Lenders, and





27









 




no such amendments, except as the same may be consented to in a writing which expressly
includes a waiver, shall be or be deemed a waiver by the Administrative Agent or any Lender of any
Default disclosed therein. Any items disclosed in any such supplemental disclosures shall be
included in the calculation of any limits, baskets or similar restrictions contained in this
Agreement or any of the other Loan Documents.




ARTICLE II: REVOLVING LOAN FACILITY




          2.1. Revolving Loans.





     (A) Amount of Revolving Loans. Upon the satisfaction of the conditions precedent set
forth in Sections 5.1, 5.2 and 5.3, as applicable, from and including the Closing Date and
prior to the Termination Date, each Lender severally and not jointly agrees, on the terms
and conditions set forth in this Agreement, to make revolving loans to the Borrowers from
time to time, in Dollars, in an amount not to exceed such Lender’s Pro Rata Share of
Revolving Credit Availability at such time (each individually, a “Revolving Loan” and,
collectively, the “Revolving Loans”); provided however, at no time shall (i) the amount of
the Revolving Credit Obligations exceed the Adjusted Aggregate Commitment and (ii) the
Financial Credit Obligations exceed the Financial Credit Sublimit. Subject to the terms of
this Agreement, the Borrowers may borrow, repay and reborrow Revolving Loans at any time
prior to the Termination Date. The Revolving Loans made on the Closing Date or on or before
the third (3rd) Business Day thereafter shall initially be Floating Rate Loans and
thereafter may be continued as Floating Rate Loans or converted into Eurodollar Rate Loans
in the manner provided in Section 2.9 and subject to the other conditions and limitations
therein set forth and set forth in this Article II and set forth in the definition of
Interest Period. Revolving Loans made after the third (3rd) Business Day after the Closing
Date shall be, at the option of the applicable Borrower, either Floating Rate Loans or
Eurodollar Rate Loans selected in accordance with Section 2.9. On the Termination Date,
each of the Borrowers shall repay in full the outstanding principal balance of the Revolving
Loans made to it. Each Advance under this Section 2.1 shall consist of Revolving Loans
made by each Lender ratably in proportion to such Lender’s respective Pro Rata Share.




     (B) Borrowing/Election Notice. The applicable Borrower shall deliver to the
Administrative Agent a Borrowing/Election Notice, signed by it, in accordance with the terms
of Section 2.7.




     (C) Making of Revolving Loans. Promptly after receipt of the Borrowing/Election Notice
under Section 2.7 in respect of Revolving Loans, the Administrative Agent shall notify each
Lender by telecopy, or other similar form of transmission, of the requested Revolving Loan.
Each Lender shall make available its Revolving Loan in accordance with the terms of Section
2.6. The Administrative Agent will promptly make the funds so received from the Lenders
available to the applicable Borrower at the Administrative Agent’s office in Chicago,
Illinois on the applicable Borrowing Date and shall disburse such proceeds in accordance
with the applicable Borrower’s disbursement instructions set forth in such
Borrowing/Election Notice. The failure of any Lender to deposit the amount described above
with the Administrative



28









 







Agent on the applicable Borrowing Date shall not relieve any other Lender of its
obligations hereunder to make its Revolving Loan on such Borrowing Date.



          2.2. Swing Line Loans.





     (A) Amount of Swing Line Loans. On the terms and conditions set forth in this
Agreement and upon the satisfaction of the conditions precedent set forth in Section 5.1,
5.2 and 5.3, as applicable, from and including the Closing Date and prior to the Termination
Date, the Swing Line Bank agrees to make swing line loans to the Borrowers from time to
time, in Dollars, in an amount not to exceed the Swing Line Commitment (each, individually,
a “Swing Line Loan” and collectively, the “Swing Line Loans”); provided, however, at no time
shall (i) the amount of the Revolving Credit Obligations exceed the Adjusted Aggregate
Commitment and (ii) the amount of the Financial Credit Obligations exceed the Financial
Credit Sublimit; and provided, further, that at no time shall the sum of (a) the Swing Line
Bank’s Pro Rata Share of the Swing Line Loans, plus (b) the outstanding amount of Revolving
Loans made by the Swing Line Bank pursuant to Section 2.1, plus (c) the Swing Line Bank’s
share of the obligations to purchase participations in Letters of Credit, exceed the Swing
Line Bank’s Commitment at such time. Subject to the terms of this Agreement, the Borrowers
may borrow, repay and reborrow Swing Line Loans at any time prior to the Termination Date.




     (B) Borrowing/Election Notice. The applicable Borrower shall deliver to the
Administrative Agent and the Swing Line Bank a Borrowing/Election Notice, signed by it, not
later than 12:00 p.m. (Chicago time) on the Borrowing Date of each Swing Line Loan,
specifying (i) the applicable Borrowing Date (which date shall be a Business Day and which
may be the same date as the date the Borrowing/Election Notice is given), and (ii) the
aggregate amount of the requested Swing Line Loan which shall be an amount not less than
$100,000 (and increments of $100,000 if in excess thereof).




     (C) Making of Swing Line Loans. Promptly after receipt of the Borrowing/Election
Notice under Section 2.2(B) in respect of Swing Line Loans the Administrative Agent shall
notify each Lender by telex or telecopy, or other similar form of transmission, of the
requested Swing Line Loan. Not later than 4:00 p.m. (Chicago time) on the applicable
Borrowing Date, the Swing Line Bank shall make available its Swing Line Loan, in funds
immediately available in Chicago to the Administrative Agent at its address specified
pursuant to Article XV. The Administrative Agent will promptly make the funds so received
from the Swing Line Bank available to the applicable Borrower on the Borrowing Date at the
Administrative Agent’s aforesaid address. The Swing Line Loans shall be Floating Rate Loans
unless the applicable Borrower and the Swing Line Bank agree otherwise.




     (D) Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in full by the
applicable Borrower on or before the fifth (5th) Business Day after the Borrowing Date for
such Swing Line Loan. The applicable Borrower may at any time pay, without penalty or
premium, all outstanding Swing Line Loans or, in a minimum amount of $100,000 and increments
of $100,000 in excess thereof, any portion of the outstanding Swing Line Loans, upon notice
to the Administrative Agent and the Swing



29









 







Line Bank. In addition, the Administrative Agent (i) may at any time in the sole
discretion of the Swing Line Bank with respect to any outstanding Swing Line Loan, or (ii)
shall on the fifth (5th) Business Day after the Borrowing Date of any Swing Line Loan,
require each Lender (including the Swing Line Bank) to make a Revolving Loan in the amount
of such Lender’s Pro Rata Share of such Swing Line Loan, for the purpose of repaying such
Swing Line Loan. Not later than 2:00 p.m. (Chicago time) on the date of any notice received
pursuant to this Section 2.2(D), each Lender shall make available its required Revolving
Loan or Revolving Loans, in funds immediately available in Chicago to the Administrative
Agent at its address specified pursuant to Article XV. Revolving Loans made pursuant to
this Section 2.2(D) shall initially be Floating Rate Loans and thereafter may be continued
as Floating Rate Loans or converted into Eurodollar Rate Loans in the manner provided in
Section 2.9 and subject to the other conditions and limitations therein set forth and set
forth in this Article II. Unless a Lender shall have notified the Swing Line Bank, prior to
its making any Swing Line Loan, that any applicable condition precedent set forth in
Sections 5.1, 5.2 and 5.3, as applicable, had not then been satisfied, such Lender’s
obligation to make Revolving Loans pursuant to this Section 2.2(D) to repay Swing Line Loans
shall be unconditional, continuing, irrevocable and absolute and shall not be affected by
any circumstances, including, without limitation, (a) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Administrative Agent, the
Swing Line Bank or any other Person, (b) the occurrence or continuance of a Default or
Unmatured Default, (c) any adverse change in the condition (financial or otherwise) of the
Company, or (d) any other circumstances, happening or event whatsoever. In the event that
any Lender fails to make payment to the Administrative Agent of any amount due under this
Section 2.2(D), the Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to such Lender
hereunder until the Administrative Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition to the foregoing, if for any reason
any Lender fails to make payment to the Administrative Agent of any amount due under this
Section 2.2(D), such Lender shall be deemed, at the option of the Administrative Agent, to
have unconditionally and irrevocably purchased from the Swing Line Bank, without recourse or
warranty, an undivided interest and participation in the applicable Swing Line Loan in the
amount of such Revolving Loan, and such interest and participation may be recovered from
such Lender together with interest thereon at the Federal Funds Effective Rate for each day
during the period commencing on the date of demand and ending on the date such amount is
received. On the Termination Date, each of the Borrowers shall repay in full the
outstanding principal balance of all Swing Line Loans made to it.



          2.3. Rate Options for all Advances; Maximum Interest Periods. The Swing Line Loans shall be
Floating Rate Loans unless the applicable Borrower and the Swing Line Bank agree otherwise. The
Revolving Loans may be Floating Rate Advances or Eurodollar Rate Advances, or a combination
thereof, selected by the applicable Borrowers in accordance with Section 2.9. The Borrowers may
select, in accordance with Section 2.9, Rate Options and Interest Periods applicable to portions of
the Revolving Loans; provided that there shall be no more than seven (7) Interest Periods in effect
with respect to all of the Loans at any time.




          2.4. Optional Payments; Mandatory Prepayments.




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     (A) Optional Payments. The Borrowers may from time to time and at any time upon at
least one (1) Business Day’s prior written notice repay or prepay, without penalty or
premium all or any part of outstanding Floating Rate Advances in an aggregate minimum amount
of One Million Dollars ($1,000,000) and in integral multiples of One Million Dollars
($1,000,000) in excess thereof. Eurodollar Rate Advances may be voluntarily repaid or
prepaid prior to the last day of the applicable Interest Period, subject to the
indemnification provisions contained in Section 4.4, in an aggregate minimum amount of Four
Million and 00/100 Dollars ($4,000,000) and in integral multiples of One Million and 00/100
Dollars ($1,000,000) in excess thereof; provided, that the applicable Borrower may not so
prepay Eurodollar Rate Advances unless it shall have provided at least three (3) Business
Days’ prior written notice to the Administrative Agent of such prepayment and provided,
further, all Eurodollar Loans constituting part of the same Eurodollar Rate Advance shall be
repaid or prepaid at the same time.




     (B) Determination of Dollar Amounts of Letters of Credit; Mandatory Prepayments of
Revolving Loans and Cash Collateralization of Letters of Credit.




     (i) The Administrative Agent will determine the Dollar Amount of:




     (a) each Letter of Credit on the date three (3) Business Days prior to the
issuance date, or, if applicable, renewal date of such Letter of Credit; and




     (b) all outstanding L/C Obligations on and as of the last Business Day of each
calendar month and on any other Business Day elected by the Administrative Agent in
its discretion or upon instruction by the Required Lenders.




Each day upon or as of which the Administrative Agent determines Dollar Amounts as
described in the preceding clauses (a) and (b) is herein described as a “Computation
Date” with respect to each Letter of Credit for which a Dollar Amount is determined
on or as of such day.




     (ii) If at any time and for any reason (other than as the result of fluctuations in
currency exchange rates) the Dollar Amount of (a) the Revolving Credit Obligations
(calculated, with respect to all L/C Obligations denominated in Agreed Currencies other
than Dollars, as of the most recent Computation Date with respect to each such L/C
Obligation) is greater than the Adjusted Aggregate Commitment or (b) the Financial
Credit Obligations (calculated, with respect to all Financial L/C Obligations
denominated in Agreed Currencies other than Dollars, as of the most recent Computation
Date with respect to each such Financial L/C Obligations) is greater than the Financial
Credit Sublimit, the Borrowers shall immediately make a mandatory prepayment of the
Obligations in an amount equal to such excess.




     (iii) If, on any Computation Date, as a result of fluctuations in currency exchange
rates, the Dollar Amount of the Revolving Credit Obligations exceeds, by more than the
Equivalent Amount of $500,000, the Adjusted Aggregate Commitment (such excess being the
“Deficient Amount”), the Administrative Agent shall so notify



31









 







the Company and the Lenders of such occurrence and the Borrowers shall immediately
remit to the Administrative Agent a payment in an aggregate principal amount sufficient
to eliminate the Deficient Amount, which funds shall be deposited in the L/C Collateral
Account and shall be held as cash collateral for the benefit of the Revolving Credit
Obligations; provided, however, if and to the extent the Deficient Amount is reduced
from one Computation Date to the immediately succeeding Computation Date, the
Administrative Agent shall (so long as no Default or Unmatured Default is then
continuing) promptly remit to the Company all cash amounts in excess of the Deficient
Amount then held in the L/C Collateral Account on such succeeding Computation Date.




     (iv) All of the mandatory prepayments made under this Section 2.4(B) shall be
applied first to Floating Rate Loans and to any Eurodollar Rate Loans maturing on such
date and then to subsequently maturing Eurodollar Rate Loans.



          2.5. Changes in Commitments.




          (A) Voluntary Commitment Reductions. The Company may permanently reduce the Aggregate
Commitment in whole, or in part ratably among the Lenders, in an aggregate minimum amount of
Ten Million and 00/100 Dollars ($10,000,000) and integral multiples of One Million and
00/100 Dollars ($1,000,000) in excess of that amount (unless the Aggregate Commitment is
reduced in whole), upon at least three (3) Business Day’s prior written notice to the
Administrative Agent, which notice shall specify the amount of any such reduction; provided,
however, that the amount of the Aggregate Commitment may not be reduced below the aggregate
principal amount of the outstanding Revolving Credit Obligations. All accrued commitment
fees shall be payable on the effective date of any termination of all or any part of the
obligations of the Lenders to make Loans hereunder.




          (B) Increase in Commitments.





     (i) At any time, the Company (on behalf of itself and the other Borrowers) may
request that the Aggregate Commitment be increased by an aggregate principal amount not
in excess of $150,000,000; provided that, without the prior written consent of the
Required Lenders, (a) the Aggregate Commitment shall at no time exceed $1,000,000,000
minus the aggregate amount of all reductions in the Aggregate Commitment previously made
pursuant to Section 2.5(A); (b) the Company shall not make any such request during the
six month period following any reduction in the Aggregate Commitment previously made
pursuant to Section 2.5(A); (c) the Company shall not be entitled to make more than one
such request during any calendar year; and (d) each such request shall be in a minimum
amount of at least $50,000,000 and increments of $5,000,000 in excess thereof. Such
request shall be made in a written notice given to the Administrative Agent and the
Lenders by the Company not less than twenty (20) Business Days prior to the proposed
effective date of such increase, which notice (a “Commitment Increase Notice”) shall
specify the amount of the proposed increase in the Aggregate Commitment and the proposed
effective date of such increase. In the event of such a Commitment Increase Notice,



32









 







each of the Lenders shall be given the opportunity to participate in the requested
increase ratably in proportions that their respective Commitments bear to the Aggregate
Commitment. No Lender shall have any obligation to increase its Commitment pursuant to
a Commitment Increase Notice. On or prior to the date that is fifteen (15) Business
Days after receipt of the Commitment Increase Notice, each Lender shall submit to the
Administrative Agent a notice indicating the maximum amount by which it is willing to
increase its Commitment in connection with such Commitment Increase Notice (any such
notice to the Administrative Agent being herein a “Lender Increase Notice”). Any Lender
which does not submit a Lender Increase Notice to the Administrative Agent prior to the
expiration of such fifteen (15) Business Day period shall be deemed to have denied any
increase in its Commitment. In the event that the increases of Commitments set forth in
the Lender Increase Notices exceed the amount requested by the Company in the Commitment
Increase Notice, the Administrative Agent and each Arranger shall have the right, in
consultation with the Company, to allocate the amount of increases necessary to meet the
Company’s Commitment Increase Notice. In the event that the Lender Increase Notices are
less than the amount requested by the Company, not later than three (3) Business Days
prior to the proposed effective date the Company may notify the Administrative Agent of
any financial institution that shall have agreed to become a “Lender” party hereto (a
“Proposed New Lender”) in connection with the Commitment Increase Notice. Any Proposed
New Lender shall be consented to by the Administrative Agent (which consent shall not be
unreasonably withheld). If the Company shall not have arranged any Proposed New
Lender(s) to commit to the shortfall from the Lender Increase Notices, then the Company
shall be deemed to have reduced the amount of its Commitment Increase Notice to the
aggregate amount set forth in the Lender Increase Notices. Based upon the Lender
Increase Notices, any allocations made in connection therewith and any notice regarding
any Proposed New Lender, if applicable, the Administrative Agent shall notify the
Company and the Lenders on or before the Business Day immediately prior to the proposed
effective date of the amount of each Lender’s and Proposed New Lenders’ Commitment (the
“Effective Commitment Amount”) and the amount of the Aggregate Commitment, which amounts
shall be effective on the following Business Day. Any increase in the Aggregate
Commitment shall be subject to the following conditions precedent: (A) the Company shall
have obtained the consent thereto of each Guarantor and its reaffirmation of the Loan
Document(s) executed by it, which consent and reaffirmation shall be in writing and in
form and substance reasonably satisfactory to the Administrative Agent, (B) as of the
date of the Commitment Increase Notice and as of the proposed effective date of the
increase in the Aggregate Commitment all representations and warranties shall be true
and correct in all material respects as though made on such date and no event shall have
occurred and then be continuing which constitutes a Default or Unmatured Default, (C)
the Borrowers, the Administrative Agent and each Proposed New Lender or Lender that
shall have agreed to provide a “Commitment” in support of such increase in the Aggregate
Commitment shall have executed and delivered a “Commitment and Acceptance” substantially
in the form of Exhibit L hereto, (D) counsel for the Company and for the Guarantors
shall have provided to the Administrative Agent



33









 







supplemental opinions in form and substance reasonably satisfactory to the
Administrative Agent and (E) the Borrowers and the Proposed New Lender shall otherwise
have executed and delivered such other instruments and documents as may be required
under Article V or that the Administrative Agent shall have reasonably requested in
connection with such increase. If any fee shall be charged by the Lenders in connection
with any such increase, such fee shall be in accordance with then prevailing market
conditions, which market conditions shall have been reasonably documented by the
Administrative Agent to the Company. Upon satisfaction of the conditions precedent to
any increase in the Aggregate Commitment, the Administrative Agent shall promptly advise
the Company and each Lender of the effective date of such increase. Upon the effective
date of any increase in the Aggregate Commitment that is supported by a Proposed New
Lender, such Proposed New Lender shall be a party to this Agreement as a Lender and
shall have the rights and obligations of a Lender hereunder and thereunder. Nothing
contained herein shall constitute, or otherwise be deemed to be, a commitment on the
part of any Lender to increase its Commitment hereunder at any time.




     (ii) For purposes of this clause (ii), (A) the term “Buying Lender(s)” shall mean
(1) each Lender the Effective Commitment Amount of which is greater than its Commitment
prior to the effective date of any increase in the Aggregate Commitment and (2) each
Proposed New Lender that is allocated an Effective Commitment Amount in connection with
any Commitment Increase Notice and (b) the term “Selling Lender(s)” shall mean each
Lender whose Commitment is not being increased from that in effect prior to such
increase in the Aggregate Commitment. Effective on the effective date of any increase
in the Aggregate Commitment pursuant to clause (i) above, each Selling Lender hereby
sells, grants, assigns and conveys to each Buying Lender, without recourse, warranty, or
representation of any kind, except as specifically provided herein, an undivided
percentage in such Selling Lender’s right, title and interest in and to its outstanding
Loans and L/C Obligations in the respective Dollar Amounts and percentages necessary so
that, from and after such sale, each such Selling Lender’s outstanding Loans and L/C
Obligations shall equal such Selling Lender’s Pro Rata Share (calculated based upon the
Effective Commitment Amounts) of the outstanding Loans and L/C Obligations. Effective
on the effective date of the increase in the Aggregate Commitment pursuant to clause (i)
above, each Buying Lender hereby purchases and accepts such grant, assignment and
conveyance from the Selling Lenders. Each Buying Lender hereby agrees that its
respective purchase price for the portion of the outstanding Loans and L/C Obligations
purchased hereby shall equal the respective Dollar Amount necessary so that, from and
after such payments, each Buying Lender’s outstanding Loans and L/C Obligations shall
equal such Buying Lender’s Pro Rata Share (calculated based upon the Effective
Commitment Amounts) of the outstanding Loans and L/C Obligations. Such amount shall be
payable on the effective date of the increase in the Aggregate Commitment by wire
transfer of immediately available funds to the Administrative Agent. The Administrative
Agent, in turn, shall wire transfer any such funds received to the Selling Lenders, in
same day funds, for the sole account of the Selling Lenders. Each Selling Lender hereby
represents and warrants to each Buying Lender that such Selling Lender owns the Loans
and L/C Obligations being sold and assigned hereby



34









 







for its own account and has not sold, transferred or encumbered any or all of its
interest in such Loans and L/C Obligations, except for participations which will be
extinguished upon payment to Selling Lender of an amount equal to the portion of the
outstanding Loans and L/C Obligations being sold by such Selling Lender. Each Buying
Lender hereby acknowledges and agrees that, except for each Selling Lender’s
representations and warranties contained in the foregoing sentence, each such Buying
Lender has entered into its Commitment and Acceptance with respect to such increase on
the basis of its own independent investigation and has not relied upon, and will not
rely upon, any explicit or implicit written or oral representation, warranty or other
statement of the Lenders or the Administrative Agent concerning the authorization,
execution, legality, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or the other Loan Documents. The Company hereby agrees to compensate
each Selling Lender for all losses, expenses and liabilities incurred by each Lender in
connection with the sale and assignment of any Eurodollar Loan hereunder on the terms
and in the manner as set forth in Section 4.4.



          2.6. Method of Borrowing. On each Borrowing Date, each Lender shall make available its
Revolving Loan or Revolving Loans, if any, not later than noon, Chicago time, in Federal or other
funds immediately available to the Administrative Agent, in Chicago, Illinois at its address
specified in or pursuant to Article XV. Unless the Administrative Agent determines that any
applicable condition specified in Article V has not been satisfied, the Administrative Agent will
make the funds so received from the Lenders available to the applicable Borrower at the
Administrative Agent’s aforesaid address.




          2.7. Method of Selecting Types and Interest Periods for Advances. The applicable Borrower
shall select the Type of Advance and, in the case of each Eurodollar Rate Advance, the Interest
Period applicable to each Advance from time to time. The applicable Borrower shall give the
Administrative Agent irrevocable notice in substantially the form of Exhibit B hereto (a
“Borrowing/Election Notice”) not later than 10:00 a.m. (Chicago time) (a) on or before the
Borrowing Date of each Floating Rate Advance, (b) three (3) Business Days before the Borrowing Date
for each Eurodollar Rate Advance. The Borrowers shall select Interest Periods so that, to the best
of their knowledge, it will not be necessary to prepay all or any portion of any Eurodollar Rate
Loan prior to the last day of the applicable Interest Period in order to make mandatory prepayments
as required pursuant to the terms hereof. Each Floating Rate Advance and all Obligations other
than Loans shall bear interest from and including the date of the making of such Advance, in the
case of Loans, and the date such Obligation is due and owing in the case of such other Obligations,
to (but not including) the date of repayment thereof at the Floating Rate changing when and as such
Floating Rate changes. Changes in the rate of interest on that portion of any Advance maintained
as a Floating Rate Loan will take effect simultaneously with each change in the Alternate Base
Rate. Each Eurodollar Rate Advance shall bear interest from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such Interest Period at
the interest rate determined as applicable to such Eurodollar Rate Advance and shall change as and
when the Applicable Eurodollar Margin changes.




35









 








          2.8. Minimum Amount of Each Advance. Each Advance (other than an Advance to repay Swing Line
Loans or a Reimbursement Obligation) shall be in the minimum amount of Four Million Dollars
($4,000,000) and in multiples of One Million Dollars ($1,000,000) if in excess thereof, provided,
however, that any Floating Rate Advance may be in the amount of the unused Adjusted Aggregate
Commitment.




          2.9. Method of Selecting Types and Interest Periods for Conversion and Continuation of
Advances.





     (A) Right to Convert. The applicable Borrower may elect from time to time, subject to
the provisions of Section 2.3 and this Section 2.9, to convert all or any part of a Loan of
any Type into any other Type or Types of Loans; provided that any conversion of any
Eurodollar Rate Advance shall be made on, and only on, the last day of the Interest Period
applicable thereto.




     (B) Automatic Conversion and Continuation. Floating Rate Loans shall continue as
Floating Rate Loans unless and until such Floating Rate Loans are converted into Eurodollar
Rate Loans. Eurodollar Rate Loans shall continue as Eurodollar Rate Loans until the end of
the then applicable Interest Period therefor, at which time such Eurodollar Rate Loans shall
be automatically converted into Floating Rate Loans unless such Eurodollar Rate Loans shall
have been repaid or the Company shall have given the Administrative Agent notice in
accordance with Section 2.9 (D) requesting that, at the end of such Interest Period, such
Eurodollar Rate Loans continue as a Eurodollar Rate Loan.




     (C) No Conversion Post-Default or Post-Unmatured Default. Notwithstanding anything to
the contrary contained in Section 2.9(A) or Section 2.9(B), no Loan may be converted into or
continued as a Eurodollar Rate Loan (except with the consent of the Required Lenders) when
any Default or Unmatured Default has occurred and is continuing.




     (D) Borrowing/Election Notice. The Company shall give the Administrative Agent an
irrevocable Borrowing/Election Notice of each conversion of a Floating Rate Loan into a
Eurodollar Rate Loan or continuation of a Eurodollar Rate Loan not later than 10:00 a.m.
(Chicago time) (x) one (1) Business Day prior to the date of the requested conversion or
continuation, with respect to any Loan to be converted to or continued as a Floating Rate
Advance, and (y) three (3) Business Days prior to the date of the requested conversion or
continuation, with respect to any Loan to be converted or continued as a Eurodollar Rate
Loan, specifying: (1) the requested date (which shall be a Business Day) of such conversion
or continuation; (2) the amount and Type of the Loan to be converted or continued; and (3)
if applicable, the amount of Eurodollar Rate Loan(s) into which such Loan is to be converted
or continued and the duration of the Interest Period applicable thereto.



          2.10. Default Rate. After the occurrence and during the continuance of a Default, at the
option of the Administrative Agent or at the direction of the Required Lenders the interest rate(s)
applicable to the Obligations and all other fees (including the fees payable under

36









 








Section 3.8 with respect to Letters of Credit) shall be equal to (x) the interest rates and
fees calculated based on the maximum Applicable Floating Rate Margins, Applicable Eurodollar
Margin, Applicable L/C Fee Percentage and Applicable Commitment Fee Percentage, as applicable, as
specified pursuant to Section 2.14(D)(ii) plus (y) two percent (2.00%) per annum for all such
Obligations and fees; provided that during the continuation of a Default under Sections 8.1(F) or
8.1(G) such interest rate and fee increases shall be automatically applicable without any election
of the Administrative Agent or action of the Required Lenders.




          2.11. Method of Payment.





     (A) Method of Payment. All payments of principal, interest, fees, reimbursements,
commissions, L/C Obligations and other Obligations hereunder shall be made, without setoff,
deduction or counterclaim (unless indicated otherwise in Section 2.14(E)), in immediately
available funds to the Administrative Agent at the Administrative Agent’s address specified
pursuant to Article XV, or at any other Lending Installation of the applicable Issuing Bank
specified in writing by such Issuing Bank to the applicable Borrower in connection with any
Letter of Credit issued in an Agreed Currency other than Dollars. Each Advance shall be
repaid or prepaid in Dollars in the amount equal to the amount borrowed and interest payable
thereon shall also be paid in Dollars. Each L/C Obligation denominated in an Agreed Currency
other than Dollars shall be repaid, and all interest and fees to be paid in respect thereof
shall be paid, in the currency in which the related Letter of Credit was issued or, where
such currency has converted to euro, in euro. All payments to be made by any Borrower
hereunder in any currency other than Dollars shall be made in such currency on the date due
in such funds as may then be customary for the settlement of international transactions in
such currency for the account of the Administrative Agent or applicable Issuing Bank, as
applicable, at its designated Lending Installation for such currency. Each payment
delivered to the Administrative Agent for the account of any Lender shall be delivered
promptly by the Administrative Agent to such Lender in the same type of funds that the
Administrative Agent received at its address specified pursuant to Article XV or at any
Lending Installation specified in a notice received by the Administrative Agent from such
Lender. The Administrative Agent is hereby authorized to charge any account of the
applicable Borrower maintained with JPMorgan or any of its Affiliates for each payment of
principal, interest and fees as it becomes due hereunder. Each reference to the
Administrative Agent in this Section 2.11 shall also be deemed to refer, and shall apply
equally, to each Issuing Bank, in the case of payments required to be made by any Borrower
to any Issuing Bank pursuant to Article III.




     (B) Market Disruption. If, after the designation by the applicable Issuing Bank and
the Administrative Agent of any currency as an Agreed Currency, in the reasonable opinion of
any Borrower, any Issuing Bank, the Required Lenders or the Administrative Agent, (x) there
shall occur any change in national or international financial, political or economic
conditions or currency exchange rates or currency control or other exchange regulations are
imposed in the country which issues such currency with the result that it shall be
impractical for any L/C Obligation to be denominated in such currency or different types of
such currency are introduced, (y) such currency is no longer readily available or freely
traded or (z) an Equivalent Amount of such currency is



37









 







not readily calculable (any such event a “Market Disruption”), such Borrower, such
Issuing Bank, the Required Lenders or the Administrative Agent, as applicable, shall
promptly notify the Lenders, the Issuing Banks, the Administrative Agent and the Borrowers,
and such currency shall no longer be an Agreed Currency until such time as the
Administrative Agent and any applicable Issuing Bank agrees to reinstate such currency as an
Agreed Currency, and all payments to be made by the applicable Borrower hereunder in such
currency shall instead be made when due in Dollars in an amount equal to the Dollar Amount
(as of the date of repayment) of such payment due, it being the intention of the parties
hereto that the Borrowers take all risks of the imposition of any such currency control or
exchange regulations. For purposes of this Section 2.11(B), the commencement of the third
stage of the European Economic and Monetary Union shall not constitute the imposition of
currency control or exchange regulations.



          2.12. Evidence of Debt.





     (A) Loan Account. Each Lender shall maintain in accordance with its usual practice an
account or accounts (a “Loan Account”) on its books and records evidencing the indebtedness
of the Borrowers to such Lender owing to such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to time
hereunder.




     (B) Register. The Register maintained by the Administrative Agent pursuant to Section
14.3(C) shall include a control account, and a subsidiary account for each Lender and each
Borrower, in which accounts (taken together) shall be recorded (i) the date and the amount
of each Loan made hereunder, the Type thereof and the Interest Period, if any, applicable
thereto, (ii) the amount of any principal or interest due and payable or to become due and
payable from each of the Borrowers to each Lender hereunder, (iii) the effective date and
amount of each Assignment Agreement delivered to and accepted by it and the parties thereto
pursuant to Section 14.3, (iv) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof, and (v) all other
appropriate debits and credits as provided in this Agreement, including, without limitation,
all fees, charges, expenses and interest.




     (C) Entries in Loan Account and Register. The entries made in the Loan Account, the
Register and the other accounts maintained pursuant to clauses (A) or (B) of this Section
shall be prima facie evidence thereof for all purposes, absent manifest error, unless the
applicable Borrower objects to information contained in the Loan Accounts, the Register or
the other accounts within thirty (30) days of the applicable Borrower’s receipt of such
information; 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
Borrowers to repay the Loans or other amounts in accordance with the terms of this
Agreement.




     (D) Noteless Transaction; Notes Issued Upon Request. Any Lender may request that the
Revolving Loans made or to be made by it each be evidenced by a promissory note in
substantially the form of Exhibit I to evidence such Lender’s Revolving Loans. In such
event, the Borrowers shall prepare, execute and deliver to such



38









 







Lender a promissory note for such Loans payable to the order of such Lender.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 14.3) be represented by one or more
promissory notes in such form payable to the order of the payee named therein.



          2.13. Telephonic Notices. The Borrowers authorize the Lenders and the Administrative Agent to
extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds
based on telephonic notices made by any person or persons the Administrative Agent or any Lender in
good faith believes to be acting on behalf of the applicable Borrower. Each of the Subsidiary
Borrowers authorizes the Company to make requests and give notices hereunder on behalf of such
Subsidiary Borrowers. The Borrowers agree to deliver promptly to the Administrative Agent a
written confirmation, signed by an Authorized Officer, if such confirmation is requested by the
Administrative Agent or any Lender, of each telephonic notice. If the written confirmation differs
in any material respect from the action taken by the Administrative Agent and the Lenders, the
records of the Administrative Agent and the Lenders shall govern absent manifest error. In case of
disagreement concerning such notices, if the Administrative Agent has recorded telephonic borrowing
notices, such recordings will be made available to the applicable Borrower upon its request
therefor.




          2.14. Promise to Pay; Interest and Commitment Fees; Interest Payment Dates; Interest and Fee
Basis; Taxes; Loan and Control Accounts.





     (A) Promise to Pay. All Advances shall be paid in full by the applicable Borrowers on
the Termination Date. Each Borrower unconditionally promises to pay when due the principal
amount of each Loan and all other Obligations incurred by it, and to pay all unpaid interest
accrued thereon, in accordance with the terms of this Agreement and the other Loan
Documents, and confirms that all Borrowers (other than Borrowers which are Foreign
Subsidiaries) shall be jointly and severally liable for all of the Obligations.




     (B) Interest Payment Dates. Interest accrued on each Floating Rate Loan shall be
payable on each Payment Date, commencing with the first such date to occur after the Closing
Date, upon any prepayment whether by acceleration or otherwise, and at maturity (whether by
acceleration or otherwise). Interest accrued on each Eurodollar Rate Loan shall be payable
on the last day of its applicable Interest Period, on any date on which the Eurodollar Rate
Loan is prepaid, whether by acceleration or otherwise, and at maturity; provided, interest
accrued on each Eurodollar Rate Loan having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such Interest
Period. Interest accrued on the principal balance of all other Obligations shall be payable
in arrears (i) on the last day of each calendar quarter, commencing on the first such day
following the incurrence of such Obligation, (ii) upon repayment thereof in full or in part,
and (iii) if not theretofore paid in full, at the time such other Obligation becomes due and
payable (whether by acceleration or otherwise).




     (C) Commitment Fees; Additional Fees.



39









 






     (i) The Company shall pay to the Administrative Agent, for the account of the
Lenders in accordance with their Pro Rata Shares, from and after the Closing Date until
the date on which the Aggregate Commitment shall be terminated in whole, a commitment
fee at the rate of the then Applicable Commitment Fee Percentage multiplied by the
average amount by which (A) the Aggregate Commitment in effect from time to time exceeds
(B) the Revolving Credit Obligations (excluding the outstanding principal amount of the
Swing Line Loans) in effect from time to time during each fiscal quarter of the Company.
All such commitment fees payable under this clause (C) shall be payable quarterly on
the last day of each fiscal quarter of the Company occurring after the Closing Date
(with the first such payment being calculated for the period from the Closing Date and
ending on December 31, 2006), and, in addition, on any date on which the Aggregate
Commitment shall be terminated in whole.




     (ii) The Company agrees to pay or to cause the Borrowers to pay to (a) the
Administrative Agent for the sole account of the Administrative Agent and JPMSI and (b)
the Syndication Agent for the sole account of the Syndication Agent and BAS, in each
case the applicable fees set forth in those certain fee letters identified and described
in Section 5.1(viii), in each case payable at the times and in the amounts set forth
therein.




         (D) Interest and Fee Basis; Applicable Floating Rate Margins, Applicable Eurodollar
Margin, Applicable L/C Fee Percentage and Applicable Commitment Fee Percentage.




     (i) Interest on all fees, Eurodollar Rate Loans and Floating Rate Loans calculated
by reference to the Federal Fund Effective Rate shall be calculated for actual days
elapsed on the basis of a 360-day year; provided, that the Applicable L/C Fee Percentage
applicable to Letters of Credit issued in British Pounds Sterling, if any, shall be
calculated for actual days elapsed on the basis of a 365-day year. Interest on all
Alternate Base Rate Loans calculated by reference to the Prime Rate shall be calculated
for actual days elapsed on the basis of a 365/366-day year. Interest shall be payable
for the day an Obligation is incurred but not for the day of any payment on the amount
paid if payment is received prior to 2:00 p.m. (Chicago time or local time, as
applicable) at the place of payment. If any payment of principal of or interest on a
Loan or any payment of any other Obligations shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day and, in the
case of a principal payment, such extension of time shall be included in computing
interest, fees and commissions in connection with such payment.




     (ii) (a) The Applicable Floating Rate Margins, Applicable Eurodollar Margin,
Applicable L/C Fee Percentage and Applicable Commitment Fee Percentage shall, subject to
the provisions of Section 2.14(D)(ii)(b) below, be determined from time to time by
reference to the table set forth below, on the basis of the then applicable Leverage
Ratio as described in this Section 2.14(D)(ii):



40









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Greater than or	 	Greater than or	 	 
	 	 	 	 	 	 	equal to 1.00 to	 	equal to 1.50 to	 	Greater than or
	 	 	Less than 1.00	 	1.00 and less	 	1.00 but less	 	equal to 2.00 to
	Leverage Ratio	 	to 1.00	 	than 1.50 to 1.00	 	than 2.00 to 1.00	 	1.00
	Applicable
Commitment Fee
	 	 	0.175	%	 	 	0.20	%	 	 	0.25	%	 	 	0.30	%
	Applicable L/C Fee
for Performance
Letters of Credit
	 	 	0.65	%	 	 	0.725	%	 	 	0.9125	%	 	 	1.10	%
	Applicable L/C Fee
for Financial
Letters of Credit
	 	 	0.875	%	 	 	1.00	%	 	 	1.25	%	 	 	1.50	%
	Applicable
Eurodollar Margin
	 	 	0.875	%	 	 	1.00	%	 	 	1.25	%	 	 	1.50	%
	Applicable Floating
Rate Margin
	 	 	0.00	%	 	 	0.00	%	 	 	0.00	%	 	 	0.25	%







(b) (1) Notwithstanding the foregoing or anything else contained in this Agreement to
the contrary, for purposes of computing the Revolving Credit Obligations in connection
with determining the applicable commitment fee, the parties hereto acknowledge and agree
that to the extent any Escalating L/C is then issued and outstanding, the applicable
commitment fee shall accrue at 200% of the commitment fee which would be applicable
solely by reference to the foregoing table multiplied by the difference
between (x) the Dollar Amount then available to be drawn under such Escalating L/C and
(y) the maximum Dollar Amount (after giving effect to all possible increases) available
to be drawn thereunder.




(2) For purposes of this Section 2.14(D)(ii), the Leverage Ratio shall be calculated as
provided in Section 7.4(A); provided, however, that until such time as
the Company delivers the financial statements for the fiscal quarter ending September
30, 2006, the Leverage Ratio shall be deemed to be greater than or equal to 1.00 to 1.00
and less than 1.50 to 1.00. Upon receipt of the financial statements delivered pursuant
to Sections 7.1(A)(i) and (ii), as applicable, the Applicable Floating Rate Margins,
Applicable Eurodollar Margin, Applicable L/C Fee Percentage and Applicable Commitment
Fee Percentage shall be adjusted, such adjustment being effective five (5) Business Days
following the date such financial statements and the compliance certificate required to
be delivered in connection therewith pursuant to Section 7.1(A)(iii) shall be due;
provided, that if the Company shall not have timely delivered



41









 







its financial statements in accordance with Section 7.1(A)(i) or (ii), as applicable,
then commencing on the date upon which such financial statements should have been
delivered and continuing until five (5) Business Days following the date such financial
statements are actually delivered, the Applicable Floating Rate Margins, Applicable
Eurodollar Margin, Applicable L/C Fee Percentage and Applicable Commitment Fee
Percentage shall be the maximum Applicable Floating Rate Margins, Applicable Eurodollar
Margin, Applicable L/C Fee Percentage and Applicable Commitment Fee Percentage, as
applicable, as set forth in this Section 2.14(D)(ii).



          (E) Taxes.





     (i) Any and all payments by the Borrowers hereunder (whether in respect of
principal, interest, fees or otherwise) shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions, charges
or withholdings or any interest, penalties and liabilities with respect thereto
including those arising after the Closing Date as a result of the adoption of or any
change in any law, treaty, rule, regulation, guideline or determination of a
Governmental Authority or any change in the interpretation or application thereof by a
Governmental Authority but excluding, in the case of each Lender and the Administrative
Agent, such taxes (including income taxes, franchise taxes and branch profit taxes) as
are imposed on or measured by such Lender’s or the Administrative Agent’s, as the case
may be, net income by the United States of America or any Governmental Authority of the
jurisdiction under the laws of which such Lender or the Administrative Agent, as the
case may be, is organized (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings, and liabilities which the Administrative Agent or a Lender
determines to be applicable to this Agreement, the other Loan Documents, the
Commitments, the Loans or the Letters of Credit being hereinafter referred to as
“Taxes”). If any Borrower shall be required by law to deduct or withhold any Taxes from
or in respect of any sum payable hereunder or under the other Loan Documents to any
Lender or the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions or withholdings (including
deductions applicable to additional sums payable under this Section 2.14(E)) such Lender
or Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions or withholdings been made, (ii) the
applicable Borrower shall make such deductions or withholdings, and (iii) the applicable
Borrower shall pay the full amount deducted or withheld to the relevant taxation
authority or other authority in accordance with applicable law. If a withholding tax of
the United States of America or any other Governmental Authority shall be or become
applicable (y) after the date of this Agreement, to such payments by the applicable
Borrower made to the Lending Installation or any other office that a Lender may claim as
its Lending Installation, or (z) after such Lender’s selection and designation of any
other Lending Installation, to such payments made to such other Lending Installation,
such Lender shall use reasonable efforts to make, fund and maintain the affected Loans
through another Lending Installation of such Lender in another jurisdiction so as to
reduce the applicable Borrower’s liability hereunder, if the making, funding or
maintenance of



42









 







such Loans through such other Lending Installation of such Lender does not, in the
judgment of such Lender, otherwise adversely affect such Loans, or obligations under the
Commitment of such Lender.




     (ii) In addition, the Borrowers agree to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges, or similar levies
which arise from any payment made hereunder, from the issuance of Letters of Credit
hereunder, or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the other Loan Documents, the Commitments, the Loans or the Letters
of Credit (hereinafter referred to as “Other Taxes”).




     (iii) The Company and each Subsidiary Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental Authority on amounts
payable under this Section 2.14(E)) paid by such Lender or the Administrative Agent (as
the case may be) and any liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within thirty (30)
days after the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor. If the Taxes or Other Taxes with respect to which the Company
or any Subsidiary Borrower has made either a direct payment to the taxation or other
authority or an indemnification payment hereunder are subsequently refunded to any
Lender, such Lender will return to the applicable Borrower, if no Event of Default has
occurred and is continuing, an amount equal to the lesser of the indemnification payment
or the refunded amount. A certificate as to any additional amount payable to any Lender
or the Administrative Agent under this Section 2.14(E) submitted to the applicable
Borrower and the Administrative Agent (if a Lender is so submitting) by such Lender or
the Administrative Agent shall show in reasonable detail the amount payable and the
calculations used to determine such amount and shall, absent manifest error, be final,
conclusive and binding upon all parties hereto. With respect to such deduction or
withholding for or on account of any Taxes and to confirm that all such Taxes have been
paid to the appropriate Governmental Authorities, the applicable Borrower shall promptly
(and in any event not later than thirty (30) days after receipt) furnish to each Lender
and the Administrative Agent such certificates, receipts and other documents as may be
required (in the reasonable judgment of such Lender or the Administrative Agent) to
establish any tax credit to which such Lender or the Administrative Agent may be
entitled.




     (iv) Within thirty (30) days after the date of any payment of Taxes or Other Taxes
by the Company or any Subsidiary Borrower, the Company shall furnish to the
Administrative Agent the original or a certified copy of a receipt evidencing payment
thereof.




     (v) Without prejudice to the survival of any other agreement of the Company and the
Subsidiary Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 2.14(E) shall survive the payment in full of all



43









 







Obligations, the termination of the Letters of Credit and the termination of this
Agreement.




     (vi) Each Lender (including any Replacement Lender or Purchaser) that is not
created or organized under the laws of the United States of America or a political
subdivision thereof (each a “Non-U.S. Lender”) shall deliver to the Company and the
Administrative Agent on or before the Closing Date, or, if later, the date on which such
Lender becomes a Lender pursuant to Section 14.3 hereof (and from time to time
thereafter upon the request of the Company or the Administrative Agent, but only for so
long as such Non-U.S. Lender is legally entitled to do so), either (1) two (2) duly
completed copies of either (A) IRS Form W-8BEN, or (B) IRS Form W-8ECI, or in either
case an applicable successor form; or (2) in the case of a Non-U.S. Lender that is not
legally entitled to deliver the forms listed in clause (vi)(1), (x) a certificate of a
duly authorized officer of such Non-U.S. Lender to the effect that such Non-U.S. Lender
is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10
percent shareholder” of the Company or any Subsidiary Borrower within the meaning of
Section 881(c)(3)(B) of the Code, or (C) a controlled foreign corporation receiving
interest from a related person within the meaning of Section 881(c)(3)(C) of the Code
(such certificate, an “Exemption Certificate”) and (y) two (2) duly completed copies of
IRS Form W-8BEN or applicable successor form. Each such Lender further agrees to
deliver to the Company and the Administrative Agent from time to time a true and
accurate certificate executed in duplicate by a duly authorized officer of such Lender
in a form satisfactory to the Company and the Administrative Agent, before or promptly
upon the occurrence of any event requiring a change in the most recent certificate
previously delivered by it to the Company and the Administrative Agent pursuant to this
Section 2.14(E)(vi). Further, each Lender which delivers a form or certificate pursuant
to this clause (vi) covenants and agrees to deliver to the Company and the
Administrative Agent within fifteen (15) days prior to the expiration of such form, for
so long as this Agreement is still in effect, another such certificate and/or two (2)
accurate and complete original newly-signed copies of the applicable form (or any
successor form or forms required under the Code or the applicable regulations
promulgated thereunder).




     Each Lender shall promptly furnish to the Company and the Administrative Agent such
additional documents as may be reasonably required by any Borrower or the Administrative
Agent to establish any exemption from or reduction of any Taxes or Other Taxes required
to be deducted or withheld and which may be obtained without undue expense to such
Lender. Notwithstanding any other provision of this Section 2.14(E), no Borrower shall
be obligated to gross up any payments to any Lender pursuant to Section 2.14(E)(i), or
to indemnify any Lender pursuant to Section 2.14(E)(iii), in respect of United States
federal withholding taxes to the extent imposed as a result of (x) the failure of such
Lender to deliver to the Company the form or forms and/or an Exemption Certificate, as
applicable to such Lender, pursuant to Section 2.14(E)(vi), (y) such form or forms
and/or Exemption Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by the Lender being
untrue or inaccurate on the date delivered in any material respect, or (z) the Lender
designating a successor



44









 







Lending Installation at which it maintains its Loans which has the effect of
causing such Lender to become obligated for tax payments in excess of those in effect
immediately prior to such designation; provided, however, that the applicable Borrower
shall be obligated to gross up any payments to any such Lender pursuant to Section
2.14(E)(i), and to indemnify any such Lender pursuant to Section 2.14(E)(iii), in
respect of United States federal withholding taxes if (i) any such failure to deliver a
form or forms or an Exemption Certificate or the failure of such form or forms or
exemption certificate to establish a complete exemption from U.S. federal withholding
tax or inaccuracy or untruth contained therein resulted from a change in any applicable
statute, treaty, regulation or other applicable law or any interpretation of any of the
foregoing occurring after the Closing Date, which change rendered such Lender no longer
legally entitled to deliver such form or forms or Exemption Certificate or otherwise
ineligible for a complete exemption from U.S. federal withholding tax, or rendered the
information or the certifications made in such form or forms or Exemption Certificate
untrue or inaccurate in any material respect, (ii) the redesignation of the Lender’s
Lending Installation was made at the request of the Company or (iii) the obligation to
gross up payments to any such Lender pursuant to Section 2.14(E)(i), or to indemnify any
such Lender pursuant to Section 2.14(E)(iii), is with respect to a Purchaser that
becomes a Purchaser as a result of an assignment made at the request of the Company.




     (vii) Upon the request, and at the expense of the Company, each Lender to which any
Borrower is required to pay any additional amount pursuant to this Section 2.14(E),
shall reasonably afford the applicable Borrower the opportunity to contest, and shall
reasonably cooperate with the applicable Borrower in contesting, the imposition of any
Tax giving rise to such payment; provided, that (i) such Lender shall not be required to
afford the applicable Borrower the opportunity to so contest unless the applicable
Borrower shall have confirmed in writing to such Lender its obligation to pay such
amounts pursuant to this Agreement; and (ii) the Company shall reimburse such Lender for
its reasonable attorneys’ and accountants’ fees and disbursements incurred in so
cooperating with the applicable Borrower in contesting the imposition of such Tax.



          2.15. Notification of Advances, Interest Rates, Prepayments and Aggregate Commitment
Reductions. Promptly after receipt thereof, the Administrative Agent will notify each Lender of
the contents of each Aggregate Commitment reduction notice, Borrowing/Election Notice, and
repayment notice received by it hereunder. The Administrative Agent will notify the applicable
Borrower and each Lender of the interest rate applicable to each Eurodollar Rate Loan promptly upon
determination of such interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.




          2.16. Lending Installations. Each Lender will book its Loans or Letters of Credit at the
appropriate Lending Installation listed on the administrative information sheets provided to the
Administrative Agent in connection herewith or such other Lending Installation designated by such
Lender in accordance with the final sentence of this Section 2.16. All terms of this Agreement
shall apply to any such Lending Installation. Each Lender may, by written or facsimile notice to
the Administrative Agent and the Company, designate a Lending Installation

45









 








through which Loans will be made by it and for whose account Loan payments and/or payments of
L/C Obligations are to be made.




          2.17. Non-Receipt of Funds by the Administrative Agent. Unless a Borrower or a Lender, as the
case may be, notifies the Administrative Agent prior to the date on which it is scheduled to make
payment to the Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii)
in the case of any Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment, the Administrative
Agent may assume that such payment has been made. The Administrative Agent may, but shall not be
obligated to, make the amount of such payment available to the intended recipient in reliance upon
such assumption. If such Lender or the applicable Borrower, as the case may be, has not in fact
made such payment to the Administrative Agent, the recipient of such payment shall, on demand by
the Administrative Agent, repay to the Administrative Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on the date such amount
was so made available by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (i) in the case of payment by a Lender, the Federal Funds
Effective Rate for such day or (ii) in the case of payment by a Borrower, the interest rate
applicable to the relevant Loan.




          2.18. Termination Date. This Agreement shall be effective until the Termination Date.
Notwithstanding the termination of this Agreement, until (A) all financing arrangements among the
Borrowers and the Lenders shall have been terminated and (B) all of the Letters of Credit shall
have expired, been cancelled or terminated, or cash collateralized pursuant to the terms of this
Agreement or supported by a letter of credit acceptable to the Administrative Agent (collectively,
the “Termination Conditions”), all of the rights and remedies under this Agreement and the other
Loan Documents shall survive.




          2.19. Replacement of Certain Lenders. In the event a Lender (“Affected Lender”) shall have:
(i) failed to fund its Pro Rata Share of any Advance requested by the applicable Borrower, or to
fund a Revolving Loan in order to repay Swing Line Loans pursuant to Section 2.2(D), which such
Lender is obligated to fund under the terms of this Agreement and which failure has not been cured,
(ii) requested compensation from any Borrower under Sections 2.14(E), 4.1 or 4.2 to recover Taxes,
Other Taxes or other additional costs incurred by such Lender which are not being incurred
generally by the other Lenders, (iii) delivered a notice pursuant to Section 4.3 claiming that such
Lender is unable to extend Eurodollar Rate Loans to any Borrower for reasons not generally
applicable to the other Lenders or (iv) has invoked Section 11.2; then, in any such case, after
engagement of one or more “Replacement Lenders” (as defined below) by the Company and/or the
Administrative Agent, the Company or the Administrative Agent may make written demand on such
Affected Lender (with a copy to the Administrative Agent in the case of a demand by the Company and
a copy to the Company in the case of a demand by the Administrative Agent) for the Affected Lender
to assign, and such Affected Lender shall use commercially reasonable efforts to assign pursuant to
one or more duly executed Assignment Agreements five (5) Business Days after the date of such
demand, to one or more financial institutions that comply with the provisions of Section 14.3(A)
which the Company or the Administrative Agent, as the case may be, shall have engaged for such
purpose (“Replacement Lender”), all of such Affected Lender’s rights and obligations under this





46










 




Agreement and the other Loan Documents (including, without limitation, its Commitment, all
Loans owing to it, all of its participation interests in existing Letters of Credit, L/C Drafts and
unreimbursed drawings under Letters of Credit, and its obligation to participate in additional
Letters of Credit and Swing Line Loans hereunder) in accordance with Section 14.3. The
Administrative Agent agrees, upon the occurrence of such events with respect to an Affected Lender
and upon the written request of the Company, to use its reasonable efforts to obtain the
commitments from one or more financial institutions to act as a Replacement Lender. The
Administrative Agent is authorized to execute one or more of such assignment agreements as
attorney-in-fact for any Affected Lender failing to execute and deliver the same within five (5)
Business Days after the date of such demand. Further, with respect to such assignment the Affected
Lender shall have concurrently received, in cash, all amounts due and owing to the Affected Lender
hereunder or under any other Loan Document, including, without limitation, the aggregate
outstanding principal amount of the Loans owed to such Lender, together with accrued interest
thereon through the date of such assignment, amounts payable under Sections 2.14(E), 4.1, and 4.2
with respect to such Affected Lender and compensation payable under Section 2.14(C) in the event of
any replacement of any Affected Lender under clause (ii) or clause (iii) of this Section 2.19;
provided that upon such Affected Lender’s replacement, such Affected Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.14(E), 4.1, 4.2, 4.4,
and 11.7, as well as to any fees accrued for its account hereunder and not yet paid, and shall
continue to be obligated under Section 12.8.




          2.20. Subsidiary Borrowers. The Company may at any time or from time to time, with the
consent of the Administrative Agent add as a party to this Agreement any Subsidiary to be a
Subsidiary Borrower hereunder by the execution and delivery to the Administrative Agent and the
Lenders of (a) a duly completed Assumption Letter by such Subsidiary, with the written consent of
the Company at the foot thereof, (b) such guaranty and subordinated intercompany indebtedness
documents as may be reasonably required by the Administrative Agent and such other opinions,
documents, certificates or other items as may be required by Section 5.2, such documents with
respect to any additional Subsidiaries to be substantially similar in form and substance to the
Loan Documents executed on or about the Closing Date by the Subsidiaries parties hereto as of the
Closing Date. Upon such execution, delivery and consent such Subsidiary shall for all purposes be
a party hereto as a Subsidiary Borrower as fully as if it had executed and delivered this
Agreement. So long as the principal of and interest on any Advances made to any Subsidiary
Borrower under this Agreement shall have been repaid or paid in full, all Letters of Credit issued
for the account of such Subsidiary Borrower have expired or been returned and terminated and all
other obligations of such Subsidiary Borrower under this Agreement shall have been fully performed,
the Company may, by not less than five (5) Business Days’ prior notice to the Administrative Agent
(which shall promptly notify the Lenders thereof), terminate such Subsidiary Borrower’s status as a
“Subsidiary Borrower”. The Administrative Agent shall give the Lenders written notice of the
addition of any Subsidiary Borrowers to this Agreement.




          2.21. Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due from any Borrower hereunder in the currency expressed to be payable
herein (the “specified currency”) into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent




47









 







could purchase the specified currency with such other currency at the Administrative Agent’s
main office in Chicago, Illinois on the Business Day preceding that on which the final,
non-appealable judgment is given. The obligations of each Borrower in respect of any sum due to
any Lender, any Issuing Bank or the Administrative Agent hereunder shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only to the extent that on
the Business Day following receipt by such Lender, such Issuing Bank or the Administrative Agent
(as the case may be) of any sum adjudged to be so due in such other currency such Lender, such
Issuing Bank or the Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other currency. If the
amount of the specified currency so purchased is less than the sum originally due to such Lender,
such Issuing Bank or the Administrative Agent, as the case may be, in the specified currency, each
Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to reimburse such Lender, such Issuing Bank or the
Administrative Agent, as the case may be, for any such loss; and if no Default or Unmatured Default
shall have occurred and is continuing and the amount of the specified currency so purchased exceeds
(a) the sum originally due to any Lender, any Issuing Bank or the Administrative Agent, as the case
may be, in the specified currency and (b) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender or Issuing Bank under
Section 14.2, such Lender, such Issuing Bank or the Administrative Agent, as the case may be,
agrees to remit such excess to such Borrower.




ARTICLE III: THE LETTER OF CREDIT FACILITY




          3.1. Obligation to Issue Letters of Credit. Subject to the terms and conditions of this
Agreement and in reliance upon the representations, warranties and covenants of the Borrowers
herein set forth, each Issuing Bank hereby agrees to issue for the account of the Company or any
Subsidiary Borrower through such Issuing Bank’s branches as it and the Company may jointly agree,
one or more Letters of Credit denominated in an Agreed Currency in accordance with this Article
III, from time to time during the period, commencing on the Closing Date and ending on the fifth
(5th) Business Day prior to the Termination Date; provided, however, if an Issuing Bank
is requested to issue Letters of Credit with respect to a jurisdiction such Issuing Bank deems, in
its sole discretion, may at any time subject it to a New Money Credit Event, the Company shall, at
the request of such Issuing Bank, guaranty and indemnify such Issuing Bank against any and all
costs, liabilities and losses resulting from any New Money Credit Event in a form and substance
satisfactory to such Issuing Bank.




          3.2. Transitional Provision. Subject to the satisfaction of the conditions contained in
Sections 5.1, 5.2 and 5.3, from and after the Closing Date each of the letters of credit identified
on Schedule 3.2 hereto and issued for the account of the Company and its Subsidiaries pursuant to
the Existing Credit Agreement (or deemed to be issued under the Existing Credit Agreement) shall be
deemed to be Letters of Credit issued pursuant to this Article III.




          3.3. Types and Amounts. No Issuing Bank shall have any obligation to and no Issuing Bank
shall:




48









 









     (i) issue (or amend) any Letter of Credit if on the date of issuance (or
amendment), before or after giving effect to the Letter of Credit requested hereunder,
(a) the Dollar Amount of the Revolving Credit Obligations at such time would exceed the
Adjusted Aggregate Commitment at such time (as such amount may be increased from time to
time as provided in Section 2.5(B)) calculated as of the date of issuance of any Letter
of Credit or (b) the Dollar Amount of the Financial Credit Obligations at such time
would exceed the Financial Credit Sublimit as of the date of issuance of any Letter of
Credit; or




     (ii) issue (or amend) any Letter of Credit which has an expiration date later than
the date which is five (5) Business Days immediately preceding the Termination Date;
provided, that any Letter of Credit may provide for the renewal thereof for additional
periods (which in no event shall extend beyond the fifth (5th) Business Day
prior to the Termination Date).



          3.4. Conditions. In addition to being subject to the satisfaction of the conditions contained
in Sections 5.1, 5.2 and 5.3, the obligation of an Issuing Bank to issue any Letter of Credit is
subject to the satisfaction in full of the following conditions:





     (i) the applicable Borrower shall have delivered to the applicable Issuing Bank (at
such times and in such manner as such Issuing Bank may reasonably prescribe) and the
Administrative Agent, a request for issuance of such Letter of Credit in substantially
the form of Exhibit C hereto, duly executed applications for such Letter of Credit and
such other documents, instructions and agreements as may be required pursuant to the
terms thereof (all such applications, documents, instructions, and agreements being
referred to herein as the “L/C Documents”), and the proposed Letter of Credit shall be
reasonably satisfactory to such Issuing Bank as to form and content; and




     (ii) as of the date of issuance no order, judgment or decree of any court,
arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain
the applicable Issuing Bank from issuing such Letter of Credit and no law, rule or
regulation applicable to such Issuing Bank and no request or directive (whether or not
having the force of law) from a Governmental Authority with jurisdiction over such
Issuing Bank shall prohibit or request that such Issuing Bank refrain from the issuance
of Letters of Credit generally or the issuance of that Letter of Credit.



          3.5. Procedure for Issuance of Letters of Credit.





     (A) Issuance. Subject to the terms and conditions of this Article III and provided
that the applicable conditions set forth in Sections 5.1, 5.2 and 5.3 hereof have been
satisfied, the applicable Issuing Bank shall, on the requested date, issue a Letter of
Credit for the account of the Company or a Subsidiary Borrower, as applicable in accordance
with such Issuing Bank’s usual and customary business practices and, in this connection,
such Issuing Bank may assume that the applicable conditions set forth in Section 5.3 hereof
have been satisfied unless it shall have received notice to the contrary from the
Administrative Agent or a Lender or has knowledge that the applicable



49









 







conditions have not been met. To the extent that there shall be any conflict between
the provisions of any L/C Document and the provisions of this Agreement, the provisions of
this Agreement shall prevail.




     (B) Notice. The applicable Issuing Bank shall give the Administrative Agent written or
telex notice, or telephonic notice confirmed promptly thereafter in writing, of (i) the
issuance of a Letter of Credit and (ii) its reasonable determination as to whether such
Letter of Credit is a Financial Letter of Credit or a Performance Letter of Credit;
provided, however, that the failure to provide such notice shall not result in any liability
on the part of such Issuing Bank.




     (C) No Amendment. No Issuing Bank shall extend or amend any Letter of Credit unless
the requirements of this Section 3.5 are met as though a new Letter of Credit was being
requested and issued.



          3.6. Letter of Credit Participation. On the date of this Agreement, with respect to the
Letters of Credit identified in Section 3.2, and immediately upon the issuance of each Letter of
Credit hereunder, each Lender shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from the applicable Issuing Bank an undivided interest and
participation in and to such Letter of Credit, the obligations of the applicable Borrower in
respect thereof, and the liability of such Issuing Bank thereunder (collectively, an “L/C
Interest”) in an amount equal to the Dollar Amount available for drawing under such Letter of
Credit multiplied by such Lender’s Pro Rata Share. Each Issuing Bank will notify the
Administrative Agent and each Lender promptly upon presentation to it of an L/C Draft or upon any
other draw under a Letter of Credit, which notice shall also state the Agreed Currency and face
amount of such L/C Draft or other draw. On the Business Day on which an Issuing Bank makes payment
of each such L/C Draft or, in the case of any other draw on a Letter of Credit, on demand by the
Administrative Agent or the applicable Issuing Bank, each Lender shall make payment to the
Administrative Agent, for the account of the applicable Issuing Bank, in immediately available
funds in Dollars in an amount (to the extent such amount has not been timely reimbursed by the
Borrowers pursuant to Section 3.7) equal to such Lender’s Pro Rata Share of the Dollar Amount of
such payment or draw. The obligation of each Lender to reimburse the Issuing Banks under this
Section 3.6 shall be unconditional, continuing, irrevocable and absolute. In the event that any
Lender fails to make payment to the Administrative Agent of any amount due under this Section 3.6,
the Administrative Agent shall be entitled to receive, retain and apply against such obligation the
principal and interest otherwise payable to such Lender hereunder until the Administrative Agent
receives such payment from such Lender or such obligation is otherwise fully satisfied; provided,
however, that nothing contained in this sentence shall relieve such Lender of its obligation to
reimburse the applicable Issuing Bank for such amount in accordance with this Section 3.6.




          3.7. Reimbursement Obligation. Each of the Borrowers agree unconditionally, irrevocably and
absolutely to pay immediately to the Administrative Agent, for the account of the Lenders, the
amount of each advance drawn under or pursuant to a Letter of Credit issued to it or an L/C Draft
related thereto (such obligation of such Borrower to reimburse the Administrative Agent for an
advance made under a Letter of Credit or L/C Draft being hereinafter referred to as a
“Reimbursement Obligation” with respect to such Letter of Credit or




50









 







L/C Draft), each such reimbursement to be made by the applicable Borrower no later than the
Business Day on which the applicable Issuing Bank makes payment of each such L/C Draft or, if the
applicable Borrower shall have received notice of a Reimbursement Obligation later than 12:00 p.m.
(Chicago time), on any Business Day or on a day which is not a Business Day, no later than 12:00
p.m. (Chicago time), on the immediately following Business Day or, in the case of any other draw on
a Letter of Credit, the date specified in the demand of such Issuing Bank. If any Borrower at any
time fails to repay a Reimbursement Obligation at the time specified in the preceding sentence,
such unpaid Reimbursement Obligation shall at that time be automatically converted into an
obligation denominated in Dollars and such Borrower shall be deemed to have elected to borrow
Revolving Loans from the Lenders, as of the date of the advance giving rise to the Reimbursement
Obligation, equal in amount to the Dollar Amount of the unpaid Reimbursement Obligation. Such
Revolving Loans shall be made as of the date of the payment giving rise to such Reimbursement
Obligation, automatically, without notice and without any requirement to satisfy the conditions
precedent otherwise applicable to an Advance of Revolving Loans. Such Revolving Loans shall
constitute a Floating Rate Advance, the proceeds of which Advance shall be used to repay such
Reimbursement Obligation. If, for any reason, any Borrower fails to repay a Reimbursement
Obligation on the day such Reimbursement Obligation arises and, for any reason, the Lenders are
unable to make or have no obligation to make Revolving Loans, then such Reimbursement Obligation
shall become immediately due and payable and bear interest from and after such day, until paid in
full, at the interest rate applicable to a Floating Rate Advance (or, in the case of a
Reimbursement Obligation denominated in an Agreed Currency other than Dollars, at the rate
determined by the applicable Issuing Bank in good faith to represent such Issuing Bank’s cost of
overnight or short-term funds in the applicable Agreed Currency plus the then effective Applicable
Eurodollar Margin). The Borrowers agree to indemnify each Issuing Bank against any loss or expense
determined by such Issuing Bank in good faith to have resulted from any conversion pursuant to this
Section 3.7 by reason of the inability of such Issuing Bank to convert the Dollar Amount received
from the applicable Borrower or from the Lenders, as applicable, into an amount in the applicable
Agreed Currency of such Letter of Credit equal to the amount of such Reimbursement Obligation.




          3.8. Letter of Credit Fees. The Borrowers agree to pay:





     (i) quarterly, in arrears, to the Administrative Agent for the ratable benefit of
the Lenders, a letter of credit fee at a rate per annum equal to the Applicable L/C Fee
Percentage for Performance Letters of Credit and Financial Letters of Credit, as
applicable, on the average daily outstanding Dollar Amount available for drawing under
all Performance Letters of Credit and Financial Letters of Credit, respectively;




     (ii) quarterly, in arrears, to the applicable Issuing Bank, a letter of credit
fronting fee equal to 0.125% per annum on the average daily outstanding stated amount
available for drawing under all Letters of Credit issued by such Issuing Bank; and




     (iii) to the applicable Issuing Bank, all customary fees and other issuance,
amendment, cancellation, document examination, negotiation, transfer and presentment
expenses and related charges in connection with the issuance, amendment, cancellation,
presentation of L/C Drafts, negotiation, transfer and the like



51









 







customarily charged by such Issuing Banks with respect to financial, performance
and commercial letters of credit, including, without limitation, standard commissions
with respect to Performance Letters of Credit, payable at the time of invoice of such
amounts.



          3.9. Borrower and Issuing Bank Reporting Requirements. The Company shall, at any time as
requested by the Administrative Agent or the Required Lenders but in any event no later than the
tenth Business Day following the last day of each month, provide to the Administrative Agent
schedules, in form and substance reasonably satisfactory to the Administrative Agent, showing (i)
the date of issue, account party, Agreed Currency and amount in such Agreed Currency, Issuing Bank,
expiration date and the reference number of each Letter of Credit issued hereunder and outstanding
at any time during such month and (ii) the comparable information and details for each other letter
of credit issued for the account of the Company or any Subsidiary and outstanding at the end of
such month. In addition to the notices required by Section 3.5(B), each Issuing Bank shall, at any
time as requested by the Administrative Agent or the Required Lenders but in any event no later
than the tenth Business Day following the last day of each month, provide to the Administrative
Agent schedules, in form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party, Agreed Currency and amount in such Agreed Currency, expiration
date and the reference number of each Letter of Credit issued by it outstanding at any time during
such month and the aggregate amount payable by the applicable Borrower during such month. In
addition, upon the request of the Administrative Agent, each Issuing Bank shall furnish to the
Administrative Agent copies of any Letter of Credit and any application for or reimbursement
agreement with respect to a Letter of Credit to which the Issuing Bank is party and such other
documentation as may reasonably be requested by the Administrative Agent. Upon the request of any
Lender, the Administrative Agent will provide to such Lender information concerning such Letters of
Credit as the Administrative Agent has received from the Issuing Banks.




          3.10. Indemnification; Exoneration.





     (A) Indemnification. In addition to amounts payable as elsewhere provided in this
Article III, each Borrower hereby agrees to protect, indemnify, pay and save harmless the
Administrative Agent, each Issuing Bank and each Lender from and against any and all
liabilities and costs which the Administrative Agent, such Issuing Bank or such Lender may
incur or be subject to in any way directly connected with (i) the issuance of any Letter of
Credit other than, in the case of the applicable Issuing Bank, as a result of its Gross
Negligence or willful misconduct of such Issuing Bank, as determined by the final judgment
of a court of competent jurisdiction, or (ii) the failure of the applicable Issuing Bank to
honor a drawing under a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto Governmental Authority
(all such acts or omissions herein called “Governmental Acts”).




     (B) Risk Assumption. As among the Borrowers, the Lenders, the Administrative Agent and
the Issuing Banks, the Borrowers assume all risks of the acts and omissions of, or misuse of
such Letter of Credit by, the beneficiary of any Letters of Credit. In furtherance and not
in limitation of the foregoing, subject to the provisions of the Letter of Credit
applications and Letter of Credit reimbursement agreements executed



52









 







by the Borrowers at the time of request for any Letter of Credit, neither the
Administrative Agent, any Issuing Bank nor any Lender shall be responsible (in the absence
of Gross Negligence or willful misconduct in connection therewith, as determined by the
final judgment of a court of competent jurisdiction): (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letters of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any
reason; (iii) for failure of the beneficiary of a Letter of Credit to comply duly with
conditions required in order to draw upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex, or other similar form of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any Letter of Credit or
of the proceeds thereof; (vii) for the misapplication by the beneficiary of a Letter of
Credit of the proceeds of any drawing under such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of the Administrative Agent, the Issuing
Banks and the Lenders, including, without limitation, any Governmental Acts. None of the
above shall affect, impair, or prevent the vesting of any Issuing Bank’s rights or powers
under this Section 3.10.




     (C) No Liability. In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing Bank under or
in connection with the Letters of Credit or any related certificates shall not, in the
absence of Gross Negligence or willful misconduct of such Issuing Bank, as determined by the
final judgment of a court of competent jurisdiction, put the applicable Issuing Bank, the
Administrative Agent or any Lender under any resulting liability to any Borrower or relieve
any Borrower of any of its obligations hereunder to any such Person.




     (D) Survival of Agreements and Obligations. Without prejudice to the survival of any
other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 3.10 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this Agreement.



          3.11. Market Disruption. Notwithstanding the satisfaction of all conditions referred to in
Article II, Article III and Article V with respect to any Letter of Credit to be issued in any
Agreed Currency other than Dollars, if there shall occur on or prior to the date of issuance of
such Letter of Credit any Market Disruption, then the Administrative Agent shall forthwith give
notice thereof to the Borrowers, the Issuing Bank and the Lenders, and such Letter of Credit shall
not be denominated in such Agreed Currency but shall be made on the date of issuance of such Letter
of Credit in Dollars, in a face amount equal to the Dollar Amount of the face amount specified in
the related request or application for such Letter of Credit, unless the Borrower notifies the
Administrative Agent at least one Business Day before such date that (i) it elects not to request
the issuance of such Letter of Credit on such date or (ii) it elects to have such Letter of




53









 







Credit issued on such date in a different Agreed Currency, as the case may be, in which the
denomination of such Letter of Credit would in the opinion of the applicable Issuing Bank, the
Administrative Agent and the Required Lenders be practicable and in a face amount equal to the
Dollar Amount of the face amount specified in the related request or application for such Letter of
Credit, as the case may be.




          3.12. L/C Collateral Account. The Company agrees that it will, as required by Sections
2.4(B)(iii) or 9.1 and until the final expiration date of any Letter of Credit and thereafter as
long as any amount is payable to the Issuing Banks or the Lenders in respect of any Letter of
Credit, maintain a special collateral account pursuant to arrangements satisfactory to the
Administrative Agent (the “L/C Collateral Account”) at the Administrative Agent’s office at the
address specified pursuant to Article XV, in the name of the Company but under the sole dominion
and control of the Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Banks and the Lenders and in which the Company shall have no interest other than as set forth in
Sections 2.4(B)(iii) or 9.1. The Company hereby pledges, assigns and grants to the Administrative
Agent, on behalf of and for the ratable benefit of the Administrative Agent, the Issuing Banks and
the Lenders, a security interest in all of the Company’s right, title and interest in and to all
funds which may from time to time be on deposit in the L/C Collateral Account to secure the prompt
and complete payment and performance of the Obligations. The Administrative Agent will invest any
funds on deposit from time to time in the L/C Collateral Account in certificates of deposit of
JPMorgan having a maturity not exceeding thirty (30) days. Nothing in this Section 3.12 shall
either obligate the Administrative Agent to require the Company to deposit any funds in the L/C
Collateral Account or limit the right of the Administrative Agent to release any funds held in the
L/C Collateral Account in each case other than as required by Sections 2.4(B)(iii) or 9.1.




ARTICLE IV: CHANGE IN CIRCUMSTANCES




          4.1. Yield Protection.





     (A) Yield Protection. If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of law) adopted
after the date of this Agreement and having general applicability to all banks within the
jurisdiction in which such Lender operates (excluding, for the avoidance of doubt, the
effect of and phasing in of capital requirements or other regulations or guidelines passed
prior to the date of this Agreement), or any interpretation or application thereof by any
Governmental Authority charged with the interpretation or application thereof, or the
compliance of any Lender therewith,




     (i) subjects any Lender or any applicable Lending Installation to any tax, duty,
charge or withholding on or from payments due from any Borrower (excluding taxation of
the overall net income of any Lender or taxation of a similar basis, which are governed
by Section 2.14(E)), or changes the basis of taxation of payments to any Lender in
respect of its Commitment, Loans, its L/C Interests, the Letters of Credit or other
amounts due it hereunder, or



54









 






     (ii) imposes or increases or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or any applicable Lending Installation
(other than reserves and assessments taken into account in determining the interest rate
applicable to Eurodollar Rate Loans) with respect to its Commitment, Loans, L/C
Interests or the Letters of Credit, or




     (iii) imposes any other condition the result of which is to increase the cost to
any Lender or any applicable Lending Installation of making, funding or maintaining its
Commitment, the Loans, the L/C Interests or the Letters of Credit or reduces any amount
receivable by any Lender or any applicable Lending Installation in connection with its
Commitment, Loans or Letters of Credit, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the amount of Commitment,
Loans or L/C Interests held or interest received by it or by reference to the Letters of
Credit, by an amount deemed material by such Lender;




and the result of any of the foregoing is to increase the cost to that Lender of making,
renewing or maintaining its Commitment, Loans, L/C Interests, or Letters of Credit or to
reduce any amount received under this Agreement, then, within fifteen (15) days after
receipt by the Company or any other Borrower of written demand by such Lender pursuant to
Section 4.5, the applicable Borrowers shall pay such Lender that portion of such increased
expense incurred or reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Loans, L/C Interests, Letters of Credit
and its Commitment.




     (B) Non-U.S. Reserve Costs or Fees With Respect to Loans and Letters of Credit to
Borrowers. If any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive of any jurisdiction outside of the United States of America or any
subdivision thereof (whether or not having the force of law), imposes or deems applicable
any reserve requirement against or fee with respect to assets of, deposits with or for the
account of, or credit extended by, any Lender, any Issuing Bank or any applicable Lending
Installation, and the result of the foregoing is to increase the cost to such Lender, such
Issuing Bank or applicable Lending Installation of making or maintaining its Eurodollar
Loans to, or issuing a Letter of Credit in an Agreed Currency other than Dollars for the
benefit of, any Borrower or its Commitment to any Borrower or to reduce the return received
by such Lender, such Issuing Bank or applicable Lending Installation in connection with such
Eurodollar Loans or Letters of Credit to or for the benefit of any Borrower or Commitment to
any Borrower, then, within 15 days of demand by such Lender or such Issuing Bank, such
Borrower shall pay such Lender or such Issuing Bank, as applicable, such additional amount
or amounts as will compensate such Lender or such Issuing Bank for such increased cost or
reduction in amount received, provided that such Borrower shall not be required to
compensate any Lender for such non-U.S. reserve costs or fees to the extent that an amount
equal to such reserve costs or fees is received by such Lender as a result of the
calculation of the interest rate applicable to Eurodollar Rate Advances pursuant to clause
(i)(b) of the definition of “Eurodollar Rate.”



55









 





          4.2. Changes in Capital Adequacy Regulations. If a Lender determines (i) the amount of
capital required or expected to be maintained by such Lender, any Lending Installation of such
Lender or any corporation controlling such Lender is increased as a result of a “Change” (as
defined below), and (ii) such increase in capital will result in an increase in the cost to such
Lender of maintaining its Commitment, Loans, L/C Interests, the Letters of Credit or its obligation
to make Loans hereunder, then, within fifteen (15) days after receipt by the Company or any other
Borrower of written demand by such Lender pursuant to Section 4.5, the applicable Borrowers shall
pay such Lender the amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines is attributable to this Agreement,
its Commitment, its Loans, its L/C Interests, the Letters of Credit or its obligation to make Loans
hereunder (after taking into account such Lender’s policies as to capital adequacy). “Change”
means (i) any change after the date of this Agreement in the “Risk-Based Capital Guidelines” (as
defined below) excluding, for the avoidance of doubt, the effect of any phasing in of such
Risk-Based Capital Guidelines or any other capital requirements passed prior to the Closing Date,
or (ii) any adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not having the force of
law) after the date of this Agreement which affects the amount of capital required or expected to
be maintained by any Lender or any Lending Installation or any corporation controlling any Lender.
“Risk-Based Capital Guidelines” means (i) the risk-based capital guidelines in effect in the United
States on the date of this Agreement, including transition rules, and (ii) the corresponding
capital regulations promulgated by regulatory authorities outside the United States implementing
the July 1988 report of the Basle Committee on Banking Regulation and Supervisory Practices
Entitled “International Convergence of Capital Measurements and Capital Standards,” including
transition rules, and any amendments to such regulations adopted prior to the date of this
Agreement.




          4.3. Availability of Types of Advances. If (i) any Lender determines that maintenance of its
Eurodollar Rate Loans at a suitable Lending Installation would violate any applicable law, rule,
regulation or directive, whether or not having the force of law, or (ii) the Required Lenders
determine that (x) deposits of a type or maturity appropriate to match fund Eurodollar Rate Loans
are not available or (y) the interest rate applicable to a Eurodollar Rate Loan does not accurately
reflect the cost of making or maintaining such an Advance, then the Administrative Agent shall
suspend the availability of the affected Type of Advance and, in the case of any occurrence set
forth in clause (i), require any Advances of the affected Type to be repaid or converted into
another Type.




          4.4. Funding Indemnification. If any payment of a Eurodollar Rate Loan occurs on a date which
is not the last day of the applicable Interest Period, whether because of acceleration, prepayment
(whether voluntary or mandatory, including, without limitation, as required pursuant to Section
2.4(B)), or otherwise (including, without limitation, as a result of the provisions of Section
2.5(B)), or a Eurodollar Rate Loan is not made on the date specified by the applicable Borrower for
any reason other than default by the Lenders, or a Eurodollar Rate Loan is not prepaid on the date
specified by the applicable Borrower for any reason, the Borrowers indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Eurodollar Rate Loan.




56









 








          4.5. Lender Statements; Survival of Indemnity. If reasonably possible, each Lender shall
designate an alternate Lending Installation with respect to its Eurodollar Rate Loan to reduce any
liability of any Borrower to such Lender under Sections 4.1 and 4.2 or to avoid the unavailability
of a Type of Advance under Section 4.3, so long as such designation is not, in the judgment of the
Lender, disadvantageous to such Lender. Each Lender shall deliver a written statement of such
Lender to the Company (with a copy to the Administrative Agent) as to the amount due, if any, under
Sections 2.14(E), 4.1, 4.2 or 4.4 and shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be prima facie evidence thereof and binding on
the Borrowers in the absence of manifest error. Determination of amounts payable under such
Sections in connection with a Eurodollar Rate Loan shall be calculated as though each Lender funded
its Eurodollar Rate Loan through the purchase of a deposit of the type and maturity corresponding
to the deposit used as a reference in determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in
the written statement of any Lender shall be payable on demand after receipt by the applicable
Borrower of such statement. The obligations of the Company and the other Borrowers under Sections
2.14(E), 4.1, 4.2 and 4.4 shall survive payment of the Obligations and termination of this
Agreement.




ARTICLE V: CONDITIONS PRECEDENT




          5.1. Initial Advances and Letters of Credit. The Lenders shall not be required to make the
initial Loans or issue any Letters of Credit unless, on or prior to the Closing Date, the Borrowers
have furnished to the Administrative Agent each of the following, with sufficient copies (if
applicable) for the Lenders, all in form and substance satisfactory to the Administrative Agent and
the Lenders:





     (i) Copies of the Certificate of Incorporation or comparable charter documents of
each of the Borrowers as of the Closing Date, together with all amendments and a
certificate of good standing, both certified as of a recent date by the appropriate
governmental officer in its jurisdiction of incorporation;




     (ii) Copies, certified by the Secretary or Assistant Secretary of each of the
Borrowers of their respective By-Laws or comparable governance documents and of their
respective Board of Directors’ resolutions authorizing the execution of the Loan
Documents entered into by it;




     (iii) An incumbency certificate, executed by the Secretary or Assistant Secretary
of each of the Borrowers, which shall identify by name and title and bear the signature
of the officers of the applicable Borrower authorized to sign the Loan Documents and, of
the applicable Borrower to make borrowings hereunder, upon which certificate the Lenders
shall be entitled to rely until informed of any change in writing by the Company;




     (iv) A certificate, in form and substance satisfactory to the Administrative Agent,
signed by an Authorized Officer of the Company, certifying that on the date of this
Agreement (a) all the representations in this Agreement are true and correct (unless
such representation and warranty is made as of a specific date, in which case,



57









 







such representation and warranty shall be true and correct as of such date), (b) no
Default or Unmatured Default has occurred and is continuing and (c) there exists no
injunction or temporary restraining order which would prohibit the making of the Loans,
the issuance of the Letters of Credit or the consummation of the other transactions
contemplated by the Loan Documents or any litigation seeking such an injunction or
restraining order;




     (v) The written opinions of the Borrowers’ and Guarantors’ Assistant General
Counsel, and of the Company’s Dutch counsel, addressed to the Administrative Agent and
the Lenders, in substantially the forms attached hereto as Exhibit E-1 and Exhibit E-2,
respectively;




     (vi) Such other documents as the Administrative Agent or its counsel may have
reasonably requested, including, without limitation, all of the documents reflected on
the List of Closing Documents attached as Exhibit E-3 to this Agreement;




     (vii) Evidence satisfactory to the Administrative Agent of the payment, prior to or
simultaneously with the initial Advance hereunder, of all principal, interest, fees and
premiums, if any, on all loans and other extensions of credit outstanding under the
Existing Credit Agreement; and




     (viii) Evidence satisfactory to (a) the Administrative Agent that the Company has
paid or caused to be paid to the Administrative Agent and JPMSI the fees (including,
without limitation, the upfront fees payable to the Lenders) agreed to in the fee letter
dated September 14, 2006, among the Administrative Agent, JPMSI and the Company and (b)
the Syndication Agent that the Company has paid or caused to be paid to the Syndication
Agent and BAS the fees agreed to in the fee letter dated September 14, 2006 among the
Syndication Agent, BAS and the Company.



          5.2. Initial Advance to Each New Subsidiary Borrower. No Lender shall be required to make an
Advance hereunder or purchase participations in Letters of Credit, no Issuing Bank shall be
required to issue a Letter of Credit hereunder, in each case, to a new Subsidiary Borrower added
after the Closing Date unless the Company has furnished or caused to be furnished to the
Administrative Agent with sufficient copies for the Lenders:





     (i) The Assumption Letter executed and delivered by such Subsidiary Borrower and
containing the written consent of the Company at the foot thereof, as contemplated by
Section 2.20;




     (ii) Copies, certified by the Secretary, Assistant Secretary, Director or Officer
of the Subsidiary Borrower, of its Board of Directors’ resolutions (and/or resolutions
of other bodies, if any are deemed necessary by the Administrative Agent) approving the
Assumption Letter;




     (iii) An incumbency certificate, executed by the Secretary, Assistant Secretary,
Director or Officer of the Subsidiary Borrower, which shall identify by name and title
and bear the signature of the officers of such Subsidiary Borrower authorized to sign



58









 







the Assumption Letter and the other documents to be executed and delivered by such
Subsidiary Borrower hereunder, upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change in writing by the
Company;




     (iv) An opinion of counsel to such Subsidiary Borrower, substantially in the form
of Exhibit E-4 hereto or, in the case of a new non-domestic Subsidiary Borrower, in a
form reasonably acceptable to the Administrative Agent;




     (v) Guaranty documentation, if applicable, from such Subsidiary Borrower in form
and substance acceptable to the Administrative Agent as required pursuant to Section
7.2(K);




     (vi) With respect to the initial Advance or any Swing Line Loan made to, or Letter
of Credit issued for the account of, any Subsidiary Borrower organized under the laws of
England and Wales (or any other jurisdiction where filings are required in order for
amounts payable under this Agreement to be exempt from applicable withholding or other
taxes), the Administrative Agent shall have received originals and/or copies, as
applicable, of all filings required to be made and such other evidence as the
Administrative Agent may require establishing to the Administrative Agent’s satisfaction
that each Lender, Swing Line Bank and Issuing Bank is entitled to receive payments under
the Loan Documents without deduction or withholding of any English (or other applicable
jurisdictions) taxes or with such deductions and withholding of English (or other
applicable jurisdictions) taxes as may be acceptable to the Administrative Agent.



          5.3. Each Advance and Letter of Credit. The Lenders shall not be required to make any
Advance, or convert or continue any Advance, or issue or amend any Letter of Credit and no Swing
Line Bank shall be required to make any Swing Line Loans hereunder, unless on the applicable
Borrowing Date, or in the case of a Letter of Credit, the date on which the Letter of Credit is to
be issued or amended:





     (A) No Defaults. There exists no Default or Unmatured Default;




     (B) Representations and Warranties. All of the representations and warranties
contained in Article VI are true and correct as of such Borrowing Date (unless such
representation and warranty is made as of a specific date, in which case, such
representation and warranty shall be true and correct as of such date) except for changes in
the Schedules to this Agreement reflecting transactions permitted by or not in violation of
this Agreement; and




     (C) Maximum Amounts. The Revolving Credit Obligations do not, and after making such
proposed Advance or issuing or amending such Letter of Credit would not, exceed the Adjusted
Aggregate Commitment and the Financial Credit Obligations do not, and after making such
proposed Advance or issuing or amending such Letter of Credit would not, exceed the
Financial Credit Sublimit.



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     Each Borrowing/Election Notice with respect to each such Advance and the letter of credit
application with respect to each Letter of Credit shall constitute a representation and warranty by
the Borrowers that the conditions contained in Sections 5.3(A), (B) and (C) have been satisfied.



ARTICLE VI: REPRESENTATIONS AND WARRANTIES




          In order to induce the Administrative Agent and the Lenders to enter into this Agreement and
to make the Loans and the other financial accommodations to the Borrowers and to issue the Letters
of Credit described herein, the Company represents and warrants as follows to each Lender and the
Administrative Agent as of the Closing Date, giving effect to the consummation of the transactions
contemplated by the Loan Documents on the Closing Date, and thereafter on each date as required by
Section 5.1, 5.2 and 5.3:




          6.1. Organization; Corporate Powers; Dutch Banking Act. The Company and each of its
Subsidiaries (i) is a corporation, limited liability company or partnership that is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, (ii)
is duly qualified to do business as a foreign entity and is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing could not reasonably be
expected to have a Material Adverse Effect, and (iii) has all requisite power and authority to own,
operate and encumber its property and to conduct its business as presently conducted and as
proposed to be conducted. Furthermore, each Borrower organized under the laws of the Netherlands
represents and warrants to the Lenders that it is in compliance with the applicable provisions of
the Dutch Banking Act and any implementing regulation including but not limited to the Dutch
Exemption Regulation.




          6.2. Authority, Execution and Delivery; Loan Documents.





     (A) Power and Authority. Each of the Loan Parties has the requisite power and
authority to execute, deliver and perform each of the Loan Documents which are to be
executed by it as required by this Agreement and the other Loan Documents and (ii) to file
the Loan Documents which must be filed by it as required by this Agreement, the other Loan
Documents or otherwise with any Governmental Authority.




     (B) Execution and Delivery. The execution, delivery, performance and filing, as the
case may be, of each of the Loan Documents as required by this Agreement or otherwise and to
which any Loan Party is party, and the consummation of the transactions contemplated
thereby, have been duly approved by the respective boards of directors and, if necessary,
the shareholders of the applicable Loan Parties, and such approvals have not been rescinded.




     (C) Loan Documents. Each of the Loan Documents to which the Company or any of its
Subsidiaries is a party has been duly executed, delivered or filed, as the case may be, by
it and constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms (except as enforceability may be limited by bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors’ rights generally), is in
full force and effect and no material term or condition thereof has been amended, modified
or waived from the terms and conditions contained in the Loan Documents



60









 







delivered to the Administrative Agent pursuant to Section 5.1 without the prior written
consent of the Administrative Agent, and the Company and its Subsidiaries have, and, to the
best of the Company’s and its Subsidiaries’ knowledge, all other parties thereto have,
performed and complied with all the terms, provisions, agreements and conditions set forth
therein and required to be performed or complied with by such parties, and no unmatured
default, default or breach of any covenant by any such party exists thereunder.



          6.3. No Conflict; Governmental Consents. The execution, delivery and performance of each of
the Loan Documents to which each of the Loan Parties is a party do not and will not (i) conflict
with the certificate or articles of incorporation or by-laws of such Loan Party, (ii) constitute a
tortious interference with any Contractual Obligation of any Person or conflict with, result in a
breach of or constitute (with or without notice or lapse of time or both) a default under any
Requirement of Law or Contractual Obligation of any such Loan Party, or require termination of any
Contractual Obligation, (iii) result in or require the creation or imposition of any Lien
whatsoever upon any of the property or assets of the Company or any of its Subsidiaries, other than
Liens permitted or created by the Loan Documents, or (iv) require any approval of any Loan Party’s
Board of Directors or shareholders except such as have been obtained. The execution, delivery and
performance of each of the Loan Documents to which the Company or any of its Subsidiaries is a
party do not and will not require any registration with, consent or approval of, or notice to, or
other action to, with or by any Governmental Authority, except filings, consents or notices which
have been made, obtained or given, or which, if not made, obtained or given, individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect.




          6.4. Financial Statements.





     (A) Pro Forma Financials. The combined pro forma balance sheet, income statements and
statements of cash flow of the Company and its Subsidiaries, copies of which are attached
hereto as Schedule 6.4 to this Agreement, present on a pro forma basis the financial
condition of the Company and such Subsidiaries as of such date, and demonstrate that the
Company and its Subsidiaries can repay their debts and satisfy their other obligations as
and when due, and can comply with the requirements of this Agreement. The projections and
assumptions expressed in the pro forma financials referenced in this Section 6.4(A) were
prepared in good faith and represent management’s opinion based on the information available
to the Company at the time so furnished and, since the preparation thereof and up to the
Closing Date, there has occurred no change in the business, financial condition, operations,
or prospects of the Company or any of its Subsidiaries, or the Company and its Subsidiaries
taken as a whole, which has had or could reasonably be expected to have a Material Adverse
Effect.




     (B) Audited Financial Statements. Complete and accurate copies of the audited
financial statements and the audit reports related thereto of the Company and its
consolidated Subsidiaries as at December 31, 2005 have been delivered to the Administrative
Agent and such financial statements were prepared in accordance with generally accepted
accounting principles in effect on the date such statements were prepared and fairly present
the consolidated financial condition and operations of the



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Company and its Subsidiaries at such date and the consolidated results of their
operations for the period then ended.




     (C) Interim Financial Statements. Complete and accurate copies of the unaudited
financial statements of the Company and its consolidated Subsidiaries as at June 30, 2006
have been delivered to the Administrative Agent and such financial statements were prepared
in accordance with generally accepted accounting principles in effect on the date such
statements were prepared and fairly present the consolidated financial condition and
operations of the Company and its Subsidiaries at such date and the consolidated results of
their operations for the period then ended, subject to normal year-end audit adjustments.



          6.5. No Material Adverse Change. Since December 31, 2005, there has occurred no change in the
business, properties, condition (financial or otherwise), performance, results of operations or
prospects of the Company, any other Borrower or the Company and its Subsidiaries taken as a whole,
or any other event which has had or could reasonably be expected to have a Material Adverse Effect.




          6.6. Taxes.





     (A) Tax Examinations. All deficiencies which have been asserted against the Company or
any of the Company’s Subsidiaries as a result of any federal, state, local or foreign tax
examination for each taxable year in respect of which an examination has been conducted have
been fully paid or finally settled or are being contested in good faith, and no issue has
been raised by any taxing authority in any such examination which, by application of similar
principles, could reasonably be expected to result in assertion by such taxing authority of
a material deficiency for any other year not so examined which has not been reserved for in
the Company’s consolidated financial statements to the extent, if any, required by Agreement
Accounting Principles. Except as permitted pursuant to Section 7.2(D), neither the Company
nor any of the Company’s Subsidiaries anticipates any tax liability with respect to the
years which have not been closed pursuant to applicable law.




     (B) Payment of Taxes. All material tax returns and reports of the Company and its
Subsidiaries required to be filed have been timely filed, and all taxes, assessments, fees
and other governmental charges thereupon and upon their respective property, assets, income
and franchises which are shown in such returns or reports to be due and payable have been
paid except those items which are being contested in good faith and have been reserved for
in accordance with Agreement Accounting Principles. The Company has no knowledge of any
proposed tax assessment against it or any of its Subsidiaries that will have or could
reasonably be expected to have a Material Adverse Effect.



          6.7. Litigation; Loss Contingencies and Violations. Other than as identified on Schedule 6.7,
there is no action, suit, proceeding, arbitration or, to the Company’s knowledge, investigation
before or by any Governmental Authority or private arbitrator pending or, to the Company’s
knowledge, threatened against or affecting the Company or any of its Subsidiaries or any property
of any of them, including, without limitation, any such actions, suits, proceedings,




62









 







arbitrations and investigations disclosed in the Company’s SEC Forms 10-K and 10-Q (the
“Disclosed Litigation”), which (i) challenges the validity or the enforceability of any material
provision of the Loan Documents or (ii) has or could reasonably be expected to have a Material
Adverse Effect. There is no material loss contingency within the meaning of Agreement Accounting
Principles which has not been reflected in the consolidated financial statements of the Company
prepared and delivered pursuant to Section 7.1(A) for the fiscal period during which such material
loss contingency was incurred. Neither the Company nor any of its Subsidiaries is (A) in violation
of any applicable Requirements of Law which violation could reasonably be expected to have a
Material Adverse Effect, or (B) subject to or in default with respect to any final judgment, writ,
injunction, restraining order or order of any nature, decree, rule or regulation of any court or
Governmental Authority which could reasonably be expected to have a Material Adverse Effect.




          6.8. Subsidiaries. Schedule 6.8 to this Agreement (i) contains a description of the corporate
structure of the Company, its Subsidiaries and any other Person in which the Company or any of its
Subsidiaries holds an Equity Interest; and (ii) accurately sets forth (A) the correct legal name,
the jurisdiction of incorporation and the jurisdictions in which each of the Company and the direct
and indirect Subsidiaries of the Company are qualified to transact business as a foreign
corporation, (B) the authorized, issued and outstanding shares of each class of Capital Stock of
each of the Company’s Foreign Subsidiaries and the owners of such shares (both as of the Closing
Date and on a fully-diluted basis), and (C) a summary of the direct and indirect partnership, joint
venture, or other Equity Interests, if any, of the Company and each of its Subsidiaries in any
Person. Except as disclosed on Schedule 6.8, none of the issued and outstanding Capital Stock of
the Company’s Foreign Subsidiaries is subject to any vesting, redemption, or repurchase agreement,
and there are no warrants or options outstanding with respect to such Capital Stock. The
outstanding Capital Stock of each of the Company’s Subsidiaries is duly authorized, validly issued,
fully paid and nonassessable and is not Margin Stock.




          6.9. ERISA. No Benefit Plan has incurred any material accumulated funding deficiency (as
defined in Sections 302(a)(2) of ERISA and 412(a) of the Code) whether or not waived. Neither the
Company nor any member of the Controlled Group has incurred any material liability to the PBGC
which remains outstanding other than the payment of premiums. As of the last day of the most
recent prior plan year, the market value of assets under each Benefit Plan, other than any
Multiemployer Plan, was not by a material amount less than the present value of benefit liabilities
thereunder (determined in accordance with the actuarial valuation assumptions described therein).
Neither the Company nor any member of the Controlled Group has (i) failed to make a required
contribution or payment to a Multiemployer Plan of a material amount or (ii) incurred a material
complete or partial withdrawal under Section 4203 or Section 4205 of ERISA from a Multiemployer
Plan. Neither the Company nor any member of the Controlled Group has failed to make an installment
or any other payment of a material amount required under Section 412 of the Code on or before the
due date for such installment or other payment. Each Plan, Foreign Employee Benefit Plan and
Non-ERISA Commitment complies in all material respects in form, and has been administered in all
material respects in accordance with its terms and in accordance with all applicable laws and
regulations, including but not limited to ERISA and the Code. There have been no and there is no
prohibited transaction described in Sections 406 of ERISA or 4975 of the Code with respect to any
Plan for




63









 







which a statutory or administrative exemption does not exist which could reasonably be
expected to subject the Company or any of is Subsidiaries to material liability. Neither the
Company nor any member of the Controlled Group has taken or failed to take any action which would
constitute or result in a Termination Event, which action or inaction could reasonably be expected
to subject the Company or any of its Subsidiaries to material liability. Neither the Company nor
any member of the Controlled Group is subject to any material liability under, or has any potential
material liability under, Section 4063, 4064, 4069, 4204 or 4212(c) of ERISA. The present value of
the aggregate liabilities to provide all of the accrued benefits under any Foreign Pension Plan do
not exceed the current fair market value of the assets held in trust or other funding vehicle for
such plan by a material amount. With respect to any Foreign Employee Benefit Plan other than a
Foreign Pension Plan, reasonable reserves have been established in accordance with prudent business
practice or where required by ordinary accounting practices in the jurisdiction in which such plan
is maintained. Neither the Company nor any other member of the Controlled Group has taken or
failed to take any action, nor has any event occurred, with respect to any “employee benefit plan”
(as defined in Section 3(3) of ERISA) which action, inaction or event could reasonably be expected
to subject the Company or any of its Subsidiaries to material liability. For purposes of this
Section 6.9, “material” means any amount, noncompliance or other basis for liability which could
reasonably be expected to subject the Company or any of its Subsidiaries to liability, individually
or in the aggregate with each other basis for liability under this Section 6.9, in excess of
$2,000,000.




          6.10. Accuracy of Information. The information, exhibits and reports furnished by or on
behalf of the Company and any of its Subsidiaries to the Administrative Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents, the representations and
warranties of the Company and its Subsidiaries contained in the Loan Documents, and all
certificates and documents delivered to the Administrative Agent and the Lenders pursuant to the
terms thereof, taken as a whole, do not contain as of the date furnished any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements contained
herein or therein, in light of the circumstances under which they were made, not misleading.




          6.11. Securities Activities. Neither the Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock. Margin Stock constitutes less than 25% of the
value of those assets of the Company and its Subsidiaries which are subject to any limitation on
sale, pledge, or other restriction hereunder.




          6.12. Material Agreements. Neither the Company nor any of its Subsidiaries is a party to any
Contractual Obligation or subject to any charter or other corporate restriction which individually
or in the aggregate has had or could reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries has received notice or has knowledge that (i) it is
in default in the performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation applicable to it, or (ii) any condition exists
which, with the giving of notice or the lapse of time or both, would constitute a default with
respect to any such Contractual Obligation, in each case, except where such default or defaults, if
any, individually or in the aggregate could not reasonably be expected to have a Material Adverse
Effect.




64









 








          6.13. Compliance with Laws. The Company and its Subsidiaries are in compliance with all
Requirements of Law applicable to them and their respective businesses, in each case where the
failure to so comply individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect.




          6.14. Assets and Properties. The Company and each of its Subsidiaries has good and marketable
title to all of its material assets and properties (tangible and intangible, real or personal)
owned by it or a valid leasehold interest in all of its material leased assets (except insofar as
marketability may be limited by any laws or regulations of any Governmental Authority affecting
such assets), and all such assets and property are free and clear of all Liens, except Liens
permitted under Section 7.3(C). Substantially all of the assets and properties owned by, leased to
or used by the Company and/or each such Subsidiary of the Company are in adequate operating
condition and repair, ordinary wear and tear excepted. Neither this Agreement nor any other Loan
Document, nor any transaction contemplated under any such agreement, will affect any right, title
or interest of the Company or such Subsidiary in and to any of such assets in a manner that could
reasonably be expected to have a Material Adverse Effect.




          6.15. Statutory Indebtedness Restrictions. Neither the Company nor any of its Subsidiaries is
subject to regulation under the Federal Power Act, the Investment Company Act of 1940, or any other
foreign, federal or state statute or regulation which limits its ability to incur indebtedness or
its ability to consummate the transactions contemplated hereby.




          6.16. Insurance. The insurance policies and programs in effect with respect to the
respective properties, assets, liabilities and business of the Company and its Subsidiaries reflect
coverage that is reasonably consistent with prudent industry practice.




          6.17. Environmental Matters.





     (A) Environmental Representations. Except as disclosed on Schedule 6.17 to this
Agreement:




     (i) the operations of the Company and its Subsidiaries comply in all material
respects with Environmental, Health or Safety Requirements of Law;




     (ii) the Company and its Subsidiaries have all material permits, licenses or other
authorizations required under Environmental, Health or Safety Requirements of Law and
are in material compliance with such permits;




     (iii) neither the Company, any of its Subsidiaries nor any of their respective
present property or operations, or, to the Company’s or any of its Subsidiaries’
knowledge, any of their respective past property or operations, are subject to or the
subject of, any investigation known to the Company or any of its Subsidiaries, any
judicial or administrative proceeding, order, judgment, decree, settlement or other
agreement respecting: (A) any material violation of Environmental, Health or Safety
Requirements of Law; (B) any remedial action; or (C) any material claims or liabilities
arising from the Release or threatened Release of a Contaminant into the environment;



65









 






     (iv) there is not now, nor to the Company’s or any of its Subsidiaries’ knowledge
has there ever been, on or in the property of the Company or any of its Subsidiaries any
landfill, waste pile, underground storage tanks, aboveground storage tanks, surface
impoundment or hazardous waste storage facility of any kind, any polychlorinated
biphenyls (PCBs) used in hydraulic oils, electric transformers or other equipment, or
any asbestos containing material; and




     (v) neither the Company nor any of its Subsidiaries has any material Contingent
Obligation in connection with any Release or threatened Release of a Contaminant into
the environment.




     (B) Materiality. For purposes of this Section 6.17 “material” means any noncompliance
or basis for liability which could reasonably be likely to subject the Company or any of its
Subsidiaries to liability, individually or in the aggregate, in excess of $5,000,000.



          6.18. Representations and Warranties of each Subsidiary Borrower. Each Subsidiary Borrower
represents and warrants to the Lenders that:





     (A) Organization and Corporate Powers. Such Subsidiary Borrower (i) is a company duly
formed and validly existing and in good standing under the laws of the state or country of
its organization (such jurisdiction being hereinafter referred to as the “Home Country”) and
(ii) has the requisite power and authority to own its property and assets and to carry on
its business substantially as now conducted except where the failure to have such requisite
authority would not reasonably be expected to have a Material Adverse Effect.




     (B) Binding Effect. Each Loan Document executed by such Subsidiary Borrower is the
legal, valid and binding obligation of such Subsidiary Borrower enforceable in accordance
with its respective terms, except as enforceability may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors’ rights generally and general
equitable principles.




     (C) No Conflict; Government Consent. Neither the execution and delivery by such
Subsidiary Borrower of the Loan Documents to which it is a party, nor the consummation by it
of the transactions therein contemplated to be consummated by it, nor compliance by such
Subsidiary Borrower with the provisions thereof will violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on such Subsidiary Borrower or
any of its Subsidiaries or such Subsidiary Borrower’s or any of its Subsidiaries’ memoranda
or articles of association or the provisions of any indenture, instrument or agreement to
which such Subsidiary Borrower or any of its Subsidiaries is a party or is subject, or by
which it, or its property, is bound, or conflict with or constitute a default thereunder, or
result in the creation or imposition of any lien in, of or on the property of such
Subsidiary Borrower or any of its Subsidiaries pursuant to the terms of any such indenture,
instrument or agreement in any such case which violation, conflict, default, creation or
imposition would not reasonably be expected to have a Material Adverse Effect. No order,
consent, approval, license, authorization, or validation of, or



66









 







filing, recording or registration with, or exemption by, any Governmental Authority is
required to authorize, or is required in connection with the execution, delivery and
performance of, or the legality, validity, binding effect or enforceability of, any of the
Loan Documents, except for such as have been obtained or made.




     (D) Filing. To ensure the enforceability or admissibility in evidence of this
Agreement and each Loan Document to which such Subsidiary Borrower is a party in its Home
Country, it is not necessary that this Agreement or any other Loan Document to which such
Subsidiary Borrower is a party or any other document be filed or recorded with any court or
other authority in its Home Country or that any stamp or similar tax be paid to or in
respect of this Agreement or any other Loan Document of such Subsidiary Borrower. The
qualification by any Lender or the Administrative Agent for admission to do business under
the laws of such Subsidiary Borrower’s Home Country does not constitute a condition to, and
the failure to so qualify does not affect, the exercise by any Lender or the Administrative
Agent of any right, privilege, or remedy afforded to any Lender or the Administrative Agent
in connection with the Loan Documents to which such Subsidiary Borrower is a party or the
enforcement of any such right, privilege, or remedy against Subsidiary Borrower. The
performance by any Lender or the Administrative Agent of any action required or permitted
under the Loan Documents will not (i) violate any law or regulation of such Subsidiary
Borrower’s Home Country or any political subdivision thereof, (ii) result in any tax or
other monetary liability to such party pursuant to the laws of such Subsidiary Borrower’s
Home Country or political subdivision or taxing authority thereof (provided that, should any
such action result in any such tax or other monetary liability to the Lender or the
Administrative Agent, the Borrowers hereby agree to indemnify such Lender or the
Administrative Agent, as the case may be, against (x) any such tax or other monetary
liability and (y) any increase in any tax or other monetary liability which results from
such action by such Lender or the Administrative Agent and, to the extent the Borrowers make
such indemnification, the incurrence of such liability by the Administrative Agent or any
Lender will not constitute a Default) or (iii) violate any rule or regulation of any
federation or organization or similar entity of which the such Subsidiary Borrower’s Home
Country is a member.




     (E) No Immunity. Neither such Subsidiary Borrower nor any of its assets is entitled to
immunity from suit, execution, attachment or other legal process. Such Subsidiary
Borrower’s execution and delivery of the Loan Documents to which it is a party constitute,
and the exercise of its rights and performance of and compliance with its obligations under
such Loan Documents will constitute, private and commercial acts done and performed for
private and commercial purposes.




     (F) Application of Representations and Warranties. It is understood and agreed by the
parties hereto that the representations and warranties of each Subsidiary Borrower in this
Section 6.18 shall only be applicable to such Subsidiary Borrower on and after the date of
its execution of an Assumption Letter.



          6.19. Benefits. Each of the Company and its Subsidiaries will benefit from the financing
arrangement established by this Agreement. The Administrative Agent and the Lenders have stated
and the Company acknowledges that, but for the agreement by each of the




67









 







Subsidiary Guarantors to execute and deliver the Subsidiary Guaranty, the Administrative Agent
and the Lenders would not have made available the credit facilities established hereby on the terms
set forth herein.




          6.20. Solvency. After giving effect to (i) the Loans to be made, and the Letters of Credit to
be issued, on the Closing Date or such other date as Loans or Letters of Credit requested hereunder
are made or issued (as applicable), (ii) the other transactions contemplated by this Agreement and
the other Loan Documents and (iii) the payment and accrual of all transaction costs with respect to
the foregoing, the Company and its Subsidiaries taken as a whole are Solvent.




ARTICLE VII: COVENANTS




          The Company covenants and agrees that so long as any Commitments are outstanding and
thereafter until all of the Termination Conditions have been satisfied, unless the Required Lenders
shall otherwise give prior written consent:




          7.1. Reporting. The Company shall:





     (A) Financial Reporting. Furnish to the Administrative Agent (for delivery to each of
the Lenders):




     (i) Quarterly Reports. As soon as practicable and in any event within forty-five
(45) days after the end of each of (a) the first three quarterly periods of each of its
fiscal years, the consolidated balance sheet of the Company and its Subsidiaries as at
the end of such period and the related consolidated statements of income and cash flows
of the Company and its Subsidiaries for such fiscal quarter and for the period from the
beginning of the then current fiscal year to the end of such fiscal quarter, certified
by a Financial Officer of the Company on behalf of the Company and its Subsidiaries as
fairly presenting the consolidated financial position of the Company and its
Subsidiaries as at the dates indicated and the results of their operations and cash
flows for the periods indicated in accordance with Agreement Accounting Principles,
subject to normal year-end audit adjustments and the absence of footnotes and (b) each
quarterly period of its fiscal year, (1) schedules, in form and substance reasonably
satisfactory to the Administrative Agent, showing (aa) the date of issue, account party,
Agreed Currency and amount (both drawn and undrawn) in such Agreed Currency, Issuing
Bank, expiration date and the reference number of each Letter of Credit issued hereunder
and (bb) the comparable information and details for each other letter of credit issued
for the account of the Company or any Subsidiary, in each case outstanding at the end of
such quarterly period and (2) a report relating to the asbestos litigation described in
Schedule 6.17, and any other Product Liability Events, for such quarter, such report
being in form and substance satisfactory to the Administrative Agent and in any event
describing (aa) any final judgments or orders (whether monetary or non-monetary) entered
against the Company or any Subsidiary and (bb) any settlements for the payment of money
entered into by the Company or any Subsidiary.



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     (ii) Annual Reports. As soon as practicable, and in any event within ninety (90)
days after the end of each fiscal year, (a) the consolidated balance sheet of the
Company and its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, stockholders’ equity and cash flows of the Company
and its Subsidiaries for such fiscal year, and in comparative form the corresponding
figures for the previous fiscal year along with consolidating schedules in form and
substance sufficient to calculate the financial covenants set forth in Section 7.4 and
(b) an audit report on the consolidated financial statements (but not the consolidating
financial statements or schedules) listed in clause (a) hereof of independent certified
public accountants of recognized national standing, which audit report shall be
unqualified and shall state that such financial statements fairly present the
consolidated financial position of the Company and its Subsidiaries as at the dates
indicated and the results of their operations and cash flows for the periods indicated
in conformity with Agreement Accounting Principles and that the examination by such
accountants in connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards. The deliveries made pursuant to
this clause (ii) shall be accompanied by (x) any management letter prepared by the
above-referenced accountants, and (y) a certificate of such accountants that, in the
course of their examination necessary for their certification of the foregoing, they
have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of
such accountants, any Default or Unmatured Default shall exist, stating the nature and
status thereof.




     (iii) Officer’s Certificate. Together with each delivery of any financial
statement (a) pursuant to clauses (i) or (ii) of this Section 7.1(A), an Officer’s
Certificate of the Company, substantially in the form of Exhibit F attached hereto and
made a part hereof, stating that as of the date of such Officer’s Certificate no Default
or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the
nature and status thereof and (b) pursuant to clauses (i) and (ii) of this Section
7.1(A), a compliance certificate, substantially in the form of Exhibit G attached hereto
and made a part hereof, signed by an Authorized Officer, which demonstrates compliance
with the tests contained in Section 7.3 and Section 7.4, and which calculates the
Leverage Ratio for purposes of determining the then Applicable Floating Rate Margin,
Applicable Eurodollar Margin, Applicable L/C Fee Percentage and Applicable Commitment
Fee Percentage.




     (iv) Budgets; Business Plans; Financial Projections. As soon as practicable and in
any event not later than one hundred twenty (120) days after the beginning of each
fiscal year commencing with the fiscal year beginning January 1, 2007, a copy of the
plan and forecast (including a projected balance sheet, income statement and a statement
of cash flow) of the Company and its Subsidiaries for the upcoming three (3) fiscal
years prepared in such detail as shall be reasonably satisfactory to the Administrative
Agent.




     (B) Notice of Default. Promptly upon any of the chief executive officer, chief
operating officer, chief financial officer, treasurer, controller, chief legal officer or
general counsel of the Company obtaining knowledge (i) of any condition or event which



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constitutes a Default or Unmatured Default, or becoming aware that any Lender or
Administrative Agent has given any written notice with respect to a claimed Default or
Unmatured Default under this Agreement, or (ii) that any Person has given any written notice
to the Company or any Subsidiary of the Company or taken any other action with respect to a
claimed default or event or condition of the type referred to in Section 8.1(E), or (iii)
that any other development, financial or otherwise, which could reasonably be expected to
have a Material Adverse Effect has occurred, the Company shall deliver to the Administrative
Agent and the Lenders an Officer’s Certificate specifying (a) the nature and period of
existence of any such claimed default, Default, Unmatured Default, condition or event, (b)
the notice given or action taken by such Person in connection therewith, and (c) what action
the Company has taken, is taking and proposes to take with respect thereto.




     (C) Lawsuits.




     (i) Promptly upon the Company obtaining knowledge of the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or arbitration, by
or before any Governmental Authority, against or affecting the Company or any of its
Subsidiaries or any property of the Company or any of its Subsidiaries not previously
disclosed pursuant to Section 6.7, which action, suit, proceeding, governmental
investigation or arbitration exposes, or in the case of multiple actions, suits,
proceedings, governmental investigations or arbitrations arising out of the same general
allegations or circumstances which expose, in the Company’s reasonable judgment, the
Company and/or any of its Subsidiaries to liability in an amount aggregating $20,000,000
or more, give written notice thereof to the Administrative Agent and the Lenders and
provide such other information as may be reasonably available to enable each Lender and
the Administrative Agent and its counsel to evaluate such matters; and




     (ii) Promptly upon the Company or any of its Subsidiaries obtaining knowledge of
any material adverse developments with respect to any of the Disclosed Litigation, which
Disclosed Litigation exposes, in the Company’s reasonable judgment, the Company and/or
any of its Subsidiaries to liability in an amount aggregating $5,000,000 or more, give
written notice thereof to the Administrative Agent and the Lenders and provide such
other information as may be reasonably available to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters; and




     (iii) In addition to the requirements set forth in clauses (i) and (ii) of this
Section 7.1(C), upon request of the Administrative Agent or the Required Lenders,
promptly give written notice of the status of any Disclosed Litigation or any action,
suit, proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) above and provide such other information as may be
reasonably available to it that would not jeopardize any attorney-client privilege by
disclosure to the Lenders to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters.



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     (D) ERISA Notices. Deliver or cause to be delivered to the Administrative Agent and
the Lenders, at the Company’s expense, the following information and notices as soon as
reasonably possible, and in any event:




     (i) (a) within ten (10) Business Days after the Company obtains knowledge that a
Termination Event has occurred, a written statement of a Financial Officer of the
Company describing such Termination Event and the action, if any, which the Company has
taken, is taking or proposes to take with respect thereto, and when known, any action
taken or threatened by the IRS, DOL or PBGC with respect thereto and (b) within ten (10)
Business Days after any member of the Controlled Group obtains knowledge that a
Termination Event has occurred which could reasonably be expected to subject the Company
or any of its Subsidiaries to liability in excess of $5,000,000, a written statement of
a Financial Officer or designee of the Company describing such Termination Event and
the action, if any, which the member of the Controlled Group has taken, is taking or
proposes to take with respect thereto, and when known, any action taken or threatened by
the IRS, DOL or PBGC with respect thereto;




     (ii) within ten (10) Business Days after the filing of any funding waiver request
with the IRS, a copy of such funding waiver request and thereafter all communications
received by the Company or a member of the Controlled Group with respect to such request
within ten (10) Business Days such communication is received; and




     (iii) within ten (10) Business Days after the Company or any member of the
Controlled Group knows or has reason to know that (a) a Multiemployer Plan has been
terminated, (b) the administrator or plan sponsor of a Multiemployer Plan intends to
terminate a Multiemployer Plan, or (c) the PBGC has instituted or will institute
proceedings under Section 4042 of ERISA to terminate a Multiemployer Plan, a notice
describing such matter.




For purposes of this Section 7.1(D), the Company, any of its Subsidiaries and any member of
the Controlled Group shall be deemed to know all facts known by the administrator of any
Plan of which the Company or any member of the Controlled Group or such Subsidiary is the
plan sponsor.




     (E) Other Indebtedness. Deliver to the Administrative Agent (i) a copy of each regular
report, notice or communication regarding potential or actual defaults or amortization
events (including any accompanying officer’s certificate) delivered by or on behalf of the
Company to the holders of Material Indebtedness pursuant to the terms of the agreements
governing such Material Indebtedness, such delivery to be made at the same time and by the
same means as such notice of default is delivered to such holders, and (ii) a copy of each
notice or other communication received by the Company from the holders of Material
Indebtedness regarding potential or actual defaults pursuant to the terms of such Material
Indebtedness, such delivery to be made promptly after such notice or other communication is
received by the Company or any of its Subsidiaries.



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     (F) Other Reports. Deliver or cause to be delivered to the Administrative Agent and
the Lenders copies of (i) all financial statements, reports and notices, if any, sent or
made available generally by the Company to their securities holders or filed with the
Commission by the Company, (ii) all press releases made available generally by the Company
or any of the Company’s Subsidiaries to the public concerning material developments in the
business of the Company or any such Subsidiary and (iii) all notifications received from the
Commission by the Company or its Subsidiaries pursuant to the Securities Exchange Act of
1934 and the rules promulgated thereunder.




     (G) Environmental Notices. As soon as possible and in any event within ten (10) days
after receipt by the Company, deliver to the Administrative Agent and the Lenders a copy of
(i) any notice or claim to the effect that the Company or any of its Subsidiaries is or may
be liable to any Person as a result of the Release by the Company, any of its Subsidiaries,
or any other Person of any Contaminant into the environment, and (ii) any notice alleging
any violation of any Environmental, Health or Safety Requirements of Law by the Company or
any of its Subsidiaries if, in either case, such notice or claim relates to an event which
could reasonably be expected to subject the Company and its Subsidiaries to liability
individually or in the aggregate in excess of $5,000,000.




     (H) Other Information. Promptly upon receiving a request therefor from the
Administrative Agent, prepare and deliver to the Administrative Agent and the Lenders such
other information with respect to the Company, any of its Subsidiaries, as from time to time
may be reasonably requested by the Administrative Agent.



          7.2. Affirmative Covenants.





     (A) Existence, Etc. The Company shall and, except as permitted pursuant to Section
7.3(H), shall cause each of its Subsidiaries to, at all times maintain its existence and
preserve and keep, or cause to be preserved and kept, in full force and effect its rights
and franchises material to its businesses.




     (B) Corporate Powers; Conduct of Business. The Company shall, and shall cause each of
its Subsidiaries to, qualify and remain qualified to do business in each jurisdiction in
which the nature of its business requires it to be so qualified and where the failure to be
so qualified will have or could reasonably be expected to have a Material Adverse Effect.
The Company will, and will cause each Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise as it is
presently conducted.




     (C) Compliance with Laws, Etc. The Company shall, and shall cause its Subsidiaries to,
(a) comply with all Requirements of Law and all restrictive covenants affecting such Person
or the business, properties, assets or operations of such Person, and (b) obtain as needed
all permits necessary for its operations and maintain such permits in good standing unless
failure to comply or obtain such permits could not reasonably be expected to have a Material
Adverse Effect. Furthermore, each Borrower organized under the laws of the Netherlands
shall at all times remain in compliance with the



72









 







applicable provisions of the Dutch Banking Act and any implementing regulation
including but not limited to the Dutch Exemption Regulation.




     (D) Payment of Taxes and Claims; Tax Consolidation. The Company shall pay, and cause
each of its Subsidiaries to pay, (i) all taxes, assessments and other governmental charges
imposed upon it or on any of its properties or assets or in respect of any of its
franchises, business, income or property before any penalty or interest accrues thereon, and
(ii) all claims (including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or may become a
Lien (other than a Lien permitted by Section 7.3(C)) upon any of the Company’s or such
Subsidiary’s property or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto; provided, however, that no such taxes, assessments and
governmental charges referred to in clause (i) above or claims referred to in clause (ii)
above (and interest, penalties or fines relating thereto) need be paid if being contested in
good faith by appropriate proceedings diligently instituted and conducted and if such
reserve or other appropriate provision, if any, as shall be required in conformity with
Agreement Accounting Principles shall have been made therefor.




     (E) Insurance. The Company shall maintain for itself and its Subsidiaries, or shall
cause each of its Subsidiaries to maintain in full force and effect, insurance policies and
programs, with such deductibles or self-insurance amounts as reflect coverage that is
reasonably consistent with prudent industry practice as determined by the Company.




     (F) Inspection of Property; Books and Records; Discussions. The Company shall permit
and cause each of its Subsidiaries to permit, any authorized representative(s) designated by
either the Administrative Agent or any Lender to visit and inspect any of the properties of
the Company or any of its Subsidiaries, to examine their respective financial and accounting
records and other material data relating to their respective businesses or the transactions
contemplated hereby (including, without limitation, in connection with environmental
compliance, hazard or liability), and to discuss their affairs, finances and accounts with
their officers and independent certified public accountants, all upon reasonable notice and
at such reasonable times during normal business hours, as often as may be reasonably
requested (provided that an officer of the Company or any of its Subsidiaries may, if it so
desires, be present at and participate in any such discussion). The Company shall keep and
maintain, and cause each of its Subsidiaries to keep and maintain, in all material respects,
proper books of record and account in which entries in conformity with Agreement Accounting
Principles shall be made of all dealings and transactions in relation to their respective
businesses and activities. If a Default has occurred and is continuing, the Company, upon
the Administrative Agent’s request, shall turn over copies of any such records to the
Administrative Agent or its representatives.




     (G) ERISA Compliance. The Company shall, and shall cause each of its Subsidiaries to,
establish, maintain and operate all Plans to comply in all material respects with the
provisions of ERISA and shall operate all Plans to comply in all material respects with the
applicable provisions of the Code, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the



73









 







governing documents for such Plans, except for any noncompliance which, individually or
in the aggregate, could not reasonably be expected to subject the Company or any of its
Subsidiaries to liability, individually or in the aggregate, in excess of $20,000,000.




     (H) Maintenance of Property. The Company shall cause all property used or useful in
the conduct of its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary equipment and shall
cause to be made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the business carried
on in connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 7.2(H) shall prevent the Company or any of
its Subsidiaries from discontinuing the operation or maintenance of any of such property if
such discontinuance is, in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary and not disadvantageous in any material respect
to the Administrative Agent or the Lenders.




     (I) Environmental Compliance. The Company and its Subsidiaries shall comply with all
Environmental, Health or Safety Requirements of Law, except where noncompliance will not
have or is not reasonably likely to subject the Company or any of its Subsidiaries to
liability, individually or in the aggregate, in excess of $20,000,000.




     (J) Use of Proceeds. The Borrowers shall use the proceeds of the Revolving Loans to
provide funds for general corporate purposes of the Company and its Subsidiaries, including,
without limitation, to refinance certain existing debt, for working capital purposes and to
finance Permitted Acquisitions. The Company will not, nor will they permit any Subsidiary
to, use any of the proceeds of the Loans to purchase or carry any Margin Stock in violation
of any applicable legal and regulatory requirements including, without limitation,
Regulations T, U, and X, the Securities Act of 1933 and the Securities Exchange Act of 1934
and the regulations promulgated thereunder, or to make any Acquisition, other than a
Permitted Acquisition pursuant to Section 7.3(F).




     (K) Subsidiary Guarantors.




     (i) New Subsidiaries. The Company shall cause each New Subsidiary that is, at any
time, a Material Subsidiary (other than any Excluded Foreign Subsidiary) and each other
Subsidiary as is necessary to remain in compliance with the terms of Section 7.3(Q), to
deliver to the Administrative Agent an executed supplement to the Subsidiary Guaranty in
the form of the supplement attached thereto (a “Supplement”) to become a Subsidiary
Guarantor and appropriate corporate resolutions, opinions and other documentation in
form and substance reasonably satisfactory to the Administrative Agent, such Supplement
and other documentation to be delivered to the Administrative Agent as promptly as
possible upon the creation, acquisition of or capitalization thereof or if otherwise
necessary to remain in compliance with Section 7.3(Q), but in any event within thirty
(30) days of such creation, acquisition or capitalization.



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     (ii) Additional Material Subsidiaries. If any consolidated Subsidiary of the
Company (other than a New Subsidiary to the extent addressed in Section 7.2(K)(i))
becomes a Material Subsidiary (other than an Excluded Foreign Subsidiary), the Company
shall cause any such Material Subsidiary to deliver to the Administrative Agent an
executed Supplement to become a Subsidiary Guarantor and appropriate corporate
resolutions, opinions and other documentation in form and substance reasonably
satisfactory to the Administrative Agent in connection therewith, such Supplement and
other documentation to be delivered to the Administrative Agent as promptly as possible
but in any event within thirty (30) days following the date on which such consolidated
Subsidiary became a Material Subsidiary.




     (iii) Other Required Guarantors. If at any time any Subsidiary of the Company
which is not a Subsidiary Guarantor guaranties any Indebtedness of the Company
(including, without limitation, Indebtedness incurred pursuant to the Note Purchase
Agreement and all replacements, substitutions, extensions or renewals thereof) other
than the Indebtedness hereunder, the Company shall cause such Subsidiary to deliver to
the Administrative Agent an executed Supplement to become a Subsidiary Guarantor and
appropriate corporate resolutions, opinions and other documentation in form and
substance reasonably satisfactory to the Administrative Agent in connection therewith,
such Supplement and other documentation to be delivered to the Administrative Agent
concurrently with the delivery of the guaranty of such other Indebtedness.




     (iv) Additional Excluded Foreign Subsidiaries. In the event any Subsidiary
otherwise required to become a Guarantor under paragraphs (ii) or (iii) above would
cause the Company adverse tax consequences if it were to become a Guarantor or is
restricted from becoming a Guarantor as a result of domestic laws or otherwise, the
Administrative Agent may, in its discretion, permit such Subsidiary to be treated as an
Excluded Foreign Subsidiary, and, accordingly, such Subsidiary would not be required to
become a Guarantor.




     (L) Foreign Employee Benefit Compliance. The Company shall, and shall cause each of
its Subsidiaries and each member of its Controlled Group to, establish, maintain and
operate all Foreign Employee Benefit Plans to comply in all material respects with all laws,
regulations and rules applicable thereto and the respective requirements of the governing
documents for such Plans, except for failures to comply which, in the aggregate, would not
be reasonably likely to subject the Company or any of its Subsidiaries to liability,
individually or in the aggregate, in excess of $20,000,000.



          7.3. Negative Covenants.





     (A) Subsidiary Indebtedness. The Company shall not permit any of its Subsidiaries
directly or indirectly to create, incur, assume or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness, except:




     (i) Indebtedness of the Subsidiaries under the Subsidiary Guaranty;



75









 






     (ii) Indebtedness in respect of guaranties executed by any Subsidiary Guarantor
with respect to any Indebtedness of the Company, provided such Indebtedness is not
incurred by the Company in violation of this Agreement;




     (iii) Indebtedness in respect of obligations secured by Customary Permitted Liens;




     (iv) Indebtedness constituting Contingent Obligations permitted by Section 7.3(E);




     (v) Unsecured Indebtedness arising from loans from (a) any Subsidiary to any
wholly-owned Subsidiary, (b) the Company to any wholly-owned Subsidiary, (c) Lealand
Finance Company B.V. to any Subsidiary (other than any Subsidiary Guarantor) in an
aggregate outstanding principal amount not to exceed $50,000,000 at any time and (d) any
one or more Subsidiary Guarantors to Horton CBI, Limited in an aggregate outstanding
principal amount not to exceed $100,000,000; provided, that if either the Company or any
Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness may only be
due either the Company or a Subsidiary Guarantor and shall be expressly subordinate to
the payment in full in cash of the Obligations on terms satisfactory to the
Administrative Agent;




     (vi) Indebtedness in respect of Hedging Obligations which are not prohibited under
Section 7.3(O);




     (vii) Indebtedness (a) with respect to surety, appeal and performance bonds and
Performance Letters of Credit obtained by any of the Company’s Subsidiaries in the
ordinary course of business, and (b) incurred or maintained by any of the Company’s
Subsidiaries under the Letter of Credit Agreement;




     (viii) Indebtedness (a) evidenced by letters of credit, bank guarantees or other
similar instruments in an aggregate face amount not to exceed at any time $50,000,000
issued in the ordinary course of business to secure obligations of the Company and its
Subsidiaries under workers’ compensation and other social security programs, and
Contingent Obligations with respect to any such permitted letters of credit, bank
guarantees or other similar instruments, and (b) constituting payment or other
obligations to Praxair or its Affiliates in respect of employee benefits under the
Employee Benefits Disaffiliation Agreement dated January 1, 1997, between Chicago Bridge
& Iron Company and Praxair, as amended from time to time; and




     (ix) (a) Permitted Existing Indebtedness and (b) other Indebtedness, in addition to
that referred to elsewhere in this Section 7.3(A), incurred by the Company’s
Subsidiaries, provided that no Default or Unmatured Default shall have occurred and be
continuing at the date of such incurrence or would result therefrom, and provided
further that the aggregate outstanding amount of all Indebtedness incurred by the
Company’s Subsidiaries under this clause (ix)(b) shall not at any time exceed
$20,000,000.



76









 






     (B) Sales of Assets. Neither the Company nor any of its Subsidiaries shall consummate
any Asset Sale, except:




     (i) sales of inventory in the ordinary course of business;




     (ii) the disposition in the ordinary course of business of equipment that is
obsolete, excess or no longer used or useful in the Company’s or its Subsidiaries’
businesses;




     (iii) transfers of assets between the Company and any wholly-owned Subsidiary of
the Company, or between wholly-owned Subsidiaries of the Company not otherwise
prohibited by this Agreement;




     (iv) the Permitted Sale and Leaseback Transactions;




     (v) the sale or other disposition of (a) all of the assets comprising the UltraPure
System business operations of the Company and (b) those certain assets acquired from
Pitt-Des Moines Inc. and identified in a ruling dated as of July 12, 2003 by the Federal
Trade Commission requiring the divestiture of such assets so long as the aggregate book
value of such assets described in this clause (b) does not exceed $15,000,000 and the
sale of such assets is on terms ordered by the Federal Trade Commission or otherwise
reasonably acceptable to the Administrative Agent; and




     (vi) other leases, sales or other dispositions of assets if such transaction (a) is
for consideration consisting at least eighty percent (80%) of cash, (b) is for not less
than fair market value (as determined in good faith by the Company’s board of
directors), and (c) involves assets that, together with all other assets of the Company
and its Subsidiaries previously leased, sold or disposed of (other than pursuant to
clauses (i) through (v) above) as permitted by this Section (x) during the twelve-month
period ending with the month in which any such lease, sale or other disposition occurs,
do not constitute a Substantial Portion of the assets of the Company and its
Subsidiaries and (y) since the Closing Date do not exceed $40,000,000, in each case when
combined with all such other transactions during such period (each such transaction
being valued at book value).




     (C) Liens. Neither the Company nor any of its Subsidiaries shall directly or
indirectly create, incur, assume or permit to exist any Lien on or with respect to any of
their respective property or assets except:




     (i) Liens, if any, created by the Loan Documents or otherwise securing the
Obligations;




     (ii) Customary Permitted Liens; and




     (iii) other Liens, including Permitted Existing Liens, (a) securing Indebtedness of
the Company (other than Indebtedness of the Company owed to any Subsidiary) and/or (b)
securing Indebtedness of the Company’s Subsidiaries as permitted pursuant



77









 







to Section 7.3(A) and in an aggregate outstanding amount not to exceed ten percent
(10%) of consolidated assets of the Company and its Subsidiaries at any time.




In addition, neither the Company nor any of its Subsidiaries shall become a party to any
agreement, note, indenture or other instrument, or take any other action, which would
prohibit the creation of a Lien on any of its properties or other assets in favor of the
Administrative Agent as collateral for the Obligations; provided that any agreement, note,
indenture or other instrument in connection with purchase money Indebtedness (including
Capitalized Leases) incurred in compliance with the terms of this Agreement may prohibit the
creation of a Lien in favor of the Administrative Agent and the Lenders on the items of
property obtained with the proceeds of such Indebtedness.




     (D) Investments. Except to the extent permitted pursuant to Section 7.3(F), neither
the Company nor any of its Subsidiaries shall directly or indirectly make or own any
Investment except:




     (i) Investments in cash and Cash Equivalents;




     (ii) Permitted Existing Investments in an amount not greater than the amount
thereof on the Closing Date;




     (iii) Investments in trade receivables or received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the ordinary
course of business;




     (iv) Investments consisting of deposit accounts maintained by the Company and its
Subsidiaries;




     (v) Investments consisting of non-cash consideration from a sale, assignment,
transfer, lease, conveyance or other disposition of property permitted by Section
7.3(B);




     (vi) Investments in any consolidated Subsidiaries;




     (vii) Investments in joint ventures (other than Subsidiaries) and nonconsolidated
Subsidiaries in an aggregate amount not to exceed $20,000,000;




     (viii) Investments constituting Permitted Acquisitions;




     (ix) Investments constituting Indebtedness permitted by Section 7.3(A) or
Contingent Obligations permitted by Section 7.3(E);




     (x) Investments in addition to those referred to elsewhere in this Section 7.3(D)
in an aggregate amount not to exceed $20,000,000.




     (E) Contingent Obligations. None of the Company’s Subsidiaries shall directly or
indirectly create or become or be liable with respect to any Contingent



78









 







Obligation, except: (i) recourse obligations resulting from endorsement of negotiable
instruments for collection in the ordinary course of business; (ii) Permitted Existing
Contingent Obligations; (iii) Contingent Obligations (x) incurred by any Subsidiary of the
Company to support the performance of bids, tenders, sales, contracts (other than for the
repayment of borrowed money) of any other Subsidiary of the Company in the ordinary course
of business, (y) incurred by any Subsidiary of the Company under the Letter of Credit
Agreement, and (z) with respect to surety, appeal and performance bonds obtained by the
Company or any Subsidiary in the ordinary course of business provided that the Indebtedness
with respect thereto is permitted pursuant to Section 7.3(A); and (iv) Contingent
Obligations of the Subsidiary Guarantors under the Subsidiary Guaranty.




     (F) Conduct of Business; Subsidiaries; Permitted Acquisitions. Neither the Company nor
any of its Subsidiaries shall engage in any business other than the businesses engaged in by
the Company and its Subsidiaries on the Closing Date and any business or activities which
are substantially similar, related or incidental thereto or logical extensions thereof. The
Company shall not create, acquire or capitalize any Subsidiary after the Closing Date unless
(i) no Default or Unmatured Default shall have occurred and be continuing or would result
therefrom; (ii) after such creation, acquisition or capitalization, all of the
representations and warranties contained herein shall be true and correct (unless such
representation and warranty is made as of a specific date, in which case, such
representation or warranty shall be true and correct as of such date); and (iii) after such
creation, acquisition or capitalization the Company and such Subsidiary shall be in
compliance with the terms of Sections 7.2(K) and 7.3(R). Neither the Company nor its
Subsidiaries shall make any Acquisitions, other than Acquisitions meeting the following
requirements or otherwise approved by the Required Lenders each such Acquisition
constituting a “Permitted Acquisition”):




          (a) as of the date of consummation of such Acquisition (before and after taking
into account such Acquisition), all representations and warranties set forth in this
Agreement and the other Loan Documents shall be true and correct in all material
respects as though made on such date (unless such representation and warranty is
made as of a specific date, in which case, such representation and warranty shall be
true and correct as of such date) and no event shall have occurred and then be
continuing which constitutes a Default or Unmatured Default under this Agreement;




          (b) prior to the consummation of any such Permitted Acquisition, the Company
shall provide written notification to the Administrative Agent of all pro forma
adjustments to EBITDA to be made in connection with such Acquisition;




          (c) the purchase is consummated pursuant to a negotiated acquisition agreement
on a non-hostile basis and approved by the target company’s board of directors (and
shareholders, if necessary) prior to the consummation of the Acquisition;



79









 






          (d) the businesses being acquired shall be substantially similar, related or
incidental to the businesses or activities engaged in by the Company and its
Subsidiaries on the Closing Date;




          (e) prior to such Acquisition and the incurrence of any Indebtedness permitted
by Section 7.3(A) in connection therewith, the Company shall deliver to the
Administrative Agent and the Lenders a certificate from one of the Authorized
Officers, demonstrating, on a pro forma basis using unadjusted historical audited or
reviewed unaudited financial statements obtained from the seller(s) in respect of
each such Acquisition as if the Acquisition and such incurrence of Indebtedness had
occurred on the first day of the twelve-month period ending on the last day of the
Company’s most recently completed fiscal quarter, the Company would have been in
compliance with the financial covenants in Section 7.4 and not otherwise in Default;
and




          (f) without the prior written consent of the Required Lenders, (i) the purchase
price for the Acquisition (including, without limitation or duplication, cash,
Capital Stock, Restricted Payments and Indebtedness assumed) shall not exceed 10% of
Consolidated Net Worth as of the Company’s most recently ended fiscal year prior to
such Acquisition and (ii) the aggregate of the purchase price for all Acquisitions
(including, without limitation or duplication, cash, Capital Stock, Restricted
Payments and Indebtedness assumed) otherwise permitted hereunder shall not exceed
$200,000,000 during the term of this Agreement.




     (G) Transactions with Shareholders and Affiliates. Other than (i) Investments
permitted by Section 7.3(D), neither the Company nor any of its Subsidiaries shall directly
or indirectly (a) enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or make loans or advances to any holder or holders of any of the Equity
Interests of the Company, or with any Affiliate of the Company which is not its Subsidiary
of the Company, on terms that are less favorable to the Company or any of its Subsidiaries,
as applicable, than those that could reasonably be obtained in an arm’s length transaction
at the time from Persons who are not such a holder or Affiliate.




     (H) Restriction on Fundamental Changes. Neither the Company nor any of its
Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve
(or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or series of transactions, all or substantially all of the
Company’s consolidated business or property (each such transaction a “Fundamental Change”),
whether now or hereafter acquired, except (i) Fundamental Changes permitted under Sections
7.3(B), 7.3(D) or 7.3(G), (ii) a Subsidiary of the Company may be merged into or
consolidated with the Company (in which case the Company shall be the surviving corporation)
or any wholly-owned Subsidiary of the Company provided the Company owns, directly or
indirectly, a percentage of the equity of the merged entity not less than the percentage it
owned of the Subsidiary prior to such Fundamental Change and if the predecessor Subsidiary
was a Guarantor, the surviving Subsidiary shall be a



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Guarantor hereunder, and (iii) any liquidation of any Subsidiary of the Company, into
the Company or another Subsidiary of the Company, as applicable.




     (I) Sales and Leasebacks. Neither the Company nor any of its Subsidiaries shall become
liable, directly, by assumption or by Contingent Obligation, with respect to any Sale and
Leaseback Transaction (other than the Permitted Sale and Leaseback Transactions), unless the
sale involved is not prohibited under Section 7.3(B), the lease involved is not prohibited
under Section 7.3(A) and any related Investment is not prohibited under Section 7.3(D).




     (J) Margin Regulations. Neither the Company nor any of its Subsidiaries, shall use all
or any portion of the proceeds of any credit extended under this Agreement to purchase or
carry Margin Stock in violation of any applicable legal and regulatory requirements
including, without limitation, Regulations T, U and X, the Securities Act of 1933, and the
Securities Exchange Act of 1934 and the regulations promulgated thereunder.




     (K) ERISA. The Company shall not




     (i) permit to exist any accumulated funding deficiency (as defined in Sections 302
of ERISA and 412 of the Code), with respect to any Benefit Plan, whether or not waived;




     (ii) terminate, or permit any Controlled Group member to terminate, any Benefit
Plan which would result in liability of the Company or any Controlled Group member under
Title IV of ERISA;




     (iii) fail, or permit any Controlled Group member to fail, to pay any required
installment or any other payment required under Section 412 of the Code on or before the
due date for such installment or other payment; or




     (iv) permit any unfunded liabilities with respect to any Foreign Pension Plan;




except where such transactions, events, circumstances, or failures are not, individually or
in the aggregate, reasonably expected to result in liability individually or in the
aggregate in excess of $20,000,000.




     (L) Corporate Documents. Neither the Company nor any of its Subsidiaries shall amend,
modify or otherwise change any of the terms or provisions in any of their respective
constituent documents as in effect on the Closing Date in any manner adverse to the
interests of the Lenders, without the prior written consent of the Required Lenders.




     (M) Fiscal Year. Neither the Company nor any of its consolidated Subsidiaries shall
change its fiscal year for accounting or tax purposes from a period consisting of the
12-month period ending on the last day of December of each year.




     (N) Subsidiary Covenants. Except as set forth on Schedule 7.3(N), the Company will
not, and will not permit any Subsidiary to, create or otherwise cause to



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become effective or suffer to exist any consensual encumbrance or restriction of any
kind on the ability of any Subsidiary to pay dividends or make any other distribution on its
stock or redemption of its stock, or make any other Restricted Payment, pay any Indebtedness
or other Obligation owed to Company or any other Subsidiary, make loans or advances or other
Investments in the Company or any other Subsidiary, or sell, transfer or otherwise convey
any of its property to the Company or any other Subsidiary, or merge, consolidate with or
liquidate into the Company or any other Subsidiary.




     (O) Hedging Obligations. The Company shall not and shall not permit any of its
Subsidiaries to enter into any Hedging Arrangements evidencing Hedging Obligations, other
than Hedging Arrangements entered into by the Company or its Subsidiaries pursuant to which
the Company or such Subsidiary has hedged its reasonably estimated interest rate, foreign
currency or commodity exposure, and which are non-speculative in nature.




     (P) Issuance of Disqualified Stock. From and after the Closing Date, neither the
Company, nor any of its Subsidiaries shall issue any Disqualified Stock. All issued and
outstanding Disqualified Stock shall be treated as Indebtedness for all purposes of this
Agreement, and the amount of such deemed Indebtedness shall be the aggregate amount of the
liquidation preference of such Disqualified Stock.




     (Q) Non-Guarantor Subsidiaries. The Company will not at any time permit the sum of the
aggregate assets of all of the Company’s Subsidiaries which are not Subsidiary Guarantors
(the non-guarantor Subsidiaries being referred to collectively as the “Non-Obligor
Subsidiaries”) to exceed twenty percent (20%) of the Company’s and its Subsidiaries
consolidated assets.




     (R) Intercompany Indebtedness. The Company shall not create, incur, assume or
otherwise become or remain directly or indirectly liable with respect to any Indebtedness
arising from loans from any Subsidiary to the Company unless (a) such Indebtedness is
unsecured and (ii) such Indebtedness shall be expressly subordinate to the payment in full
in cash of the Obligations on terms satisfactory to the Administrative Agent.




     (S) Restricted Payments. The Company shall not, nor shall it permit any Subsidiary to,
declare, make or pay any Restricted Payments (other than permitted Restricted Payments
listed on Schedule 7.3(S)) in excess of $100,000,000 in the aggregate during any period of
twelve (12) consecutive months.




     (T) Changes to Note Purchase Agreement and Related Indebtedness. The Company shall not
amend, modify or supplement, or permit any Subsidiary to amend, modify or supplement (or
consent to any amendment, modification or supplement of), the Note Purchase Agreement or any
document, agreement or instrument evidencing any Indebtedness incurred pursuant to the Note
Purchase Agreement (or any replacements, substitutions, extensions or renewals thereof) or
pursuant to which such Indebtedness is issued where such amendment, modification or
supplement provides for the following or which has any of the following effects:



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     (i) increases the overall principal amount of any such Indebtedness or increases the
amount of any single scheduled installment of principal or interest;




     (ii) shortens or accelerates the date upon which any installment of principal or
interest becomes due or adds any additional mandatory redemption provisions;




     (iii) shortens the final maturity date of such Indebtedness or otherwise accelerates
the amortization schedule with respect to such Indebtedness;




     (iv) increases the rate of interest accruing on such Indebtedness;




     (v) provides for the payment of additional fees or increases existing fees;




     (vi) amends or modifies any financial or negative covenant (or covenant which prohibits
or restricts the Company or any of its Subsidiaries from taking certain actions) in a manner
which is more onerous or more restrictive in any material respect to the Company or such
Subsidiary or which is otherwise materially adverse to the Company, its Subsidiaries and/or
the Lenders or, in the case of any such covenant, which places material additional
restrictions on the Company or such Subsidiary or which requires the Company or such
Subsidiary to comply with more restrictive financial ratios or which requires the Company to
better its financial performance, in each case from that set forth in the existing
applicable covenants in the Note Purchase Agreement or the applicable covenants in this
Agreement; or




     (vii) amends, modifies or adds any affirmative covenant in a manner which (a) when
taken as a whole, is materially adverse to the Company, its Subsidiaries and/or the Lenders
or (b) is more onerous than the existing applicable covenant in the Note Purchase Agreement
or the applicable covenant in this Agreement.



          7.4. Financial Covenants. The Company shall comply with the following:





     (A) Maximum Leverage Ratio. As of the last day of each fiscal quarter, the Company
shall not permit the ratio (the “Leverage Ratio”) of (i) all Adjusted Indebtedness of the
Company and its Subsidiaries to (ii) EBITDA to be greater than 2.50 to 1.00 for the
four-quarter period ending on such date.




     The Leverage Ratio shall be calculated, in each case, determined as of the last day of
each fiscal quarter based upon (a) for Adjusted Indebtedness, Adjusted Indebtedness as of
the last day of each such fiscal quarter; and (b) for EBITDA, the actual amount for the
four-quarter period ending on such day, calculated, with respect to Permitted Acquisitions,
on a pro forma basis using historical audited and reviewed unaudited financial statements
obtained from the seller(s) in such Permitted Acquisition, broken down by fiscal quarter in
the Company’s reasonable judgment and satisfactory to the Administrative Agent and as
reported to the Administrative Agent pursuant to the provisions of Section 7.3(F)(b).




     (B) Minimum Fixed Charge Coverage Ratio. The Company and its consolidated Subsidiaries
shall maintain a ratio (“Fixed Charge Coverage Ratio”),



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without duplication, of Consolidated Net Income Available for Fixed Charges to
Consolidated Fixed Charges for the period of four fiscal quarters ending on the last day of
each fiscal quarter, of at least 1.75 to 1.00 as of the end of such fiscal quarter for the
period commencing with the fiscal quarter ending on June 30, 2006 through the Termination
Date.




     If, during the period for which Consolidated Net Income Available for Fixed Charges and
Consolidated Fixed Charges are being calculated, the Company or any Subsidiary has acquired
any Person (or the assets thereof) resulting in such Person becoming or otherwise resulting
in a Subsidiary, compliance with this Section 7.4(B) shall be determined by calculating
Consolidated Net Income Available for Fixed Charges and Consolidated Fixed Charges on a pro
forma basis as if such Subsidiary had become such a Subsidiary on the first day of such
period and any Indebtedness incurred in connection therewith was incurred on such date.




     (C) Minimum Consolidated Net Worth. The Company shall not permit its Consolidated Net
Worth at any time to be less than (i) the sum of (a) $396,419,000, plus (b) fifty percent
(50%) of the sum of Net Income (if positive) earned in each fiscal quarter, commencing with
the fiscal quarter ending on September 30, 2006, plus (c) 75% of the amount, if any, by
which stockholders’ equity of the Company is, in accordance with Agreement Accounting
Principles, adjusted from time to time as a result of the issuance of any Equity Interests
after September 30, 2006 minus (ii) the Executive Equity Repurchase Payment.



ARTICLE VIII: DEFAULTS




          8.1. Defaults. Each of the following occurrences shall constitute a Default under this
Agreement:





     (A) Failure to Make Payments When Due. The Company or any Subsidiary Borrower shall
(i) fail to pay when due any of the Obligations consisting of principal with respect to the
Loans or Reimbursement Obligations or (ii) shall fail to pay within five (5) days of the
date when due any of the other Obligations under this Agreement or the other Loan Documents.




     (B) Breach of Certain Covenants. The Company shall fail duly and punctually to perform
or observe any agreement, covenant or obligation binding on the Company under Sections
7.1(A), 7.2(A), 7.2(F), 7.2(K), 7.3 or 7.4.




     (C) Breach of Representation or Warranty. Any representation or warranty made or
deemed made by the Company or any Subsidiary Borrower to the Administrative Agent or any
Lender herein or by the Company or any Subsidiary Borrower or any of its Subsidiaries in any
of the other Loan Documents or in any statement or certificate or information at any time
given by any such Person pursuant to any of the Loan Documents shall be false or misleading
in any material respect on the date as of which made (or deemed made).



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     (D) Other Defaults. The Company or any Subsidiary Borrower shall default in the
performance of or compliance with any term contained in this Agreement (other than as
covered by paragraphs (A) or (B) or (C) of this Section 8.1), or the Company or any
Subsidiary Borrower or any of its Subsidiaries shall default in the performance of or
compliance with any term contained in any of the other Loan Documents, and such default
shall continue for thirty (30) days after the occurrence thereof.




     (E) Default as to Other Indebtedness. The Company or any of its Subsidiaries shall
fail to make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) with respect to any Indebtedness (other than Indebtedness
hereunder), beyond any period of grace provided with respect thereto, which individually or
together with other such Indebtedness as to which any such failure or other Default under
this clause (E) exists has an aggregate outstanding principal amount equal to or in excess
of Twenty Million and 00/100 Dollars ($20,000,000) (such Indebtedness being “Material
Indebtedness”); or any breach, default or event of default (including any termination event,
amortization event, liquidation event or event of like import arising under any agreement or
instrument giving rise to any Off-Balance Sheet Liabilities) shall occur, or any other
condition shall exist under any instrument, agreement or indenture pertaining to any such
Material Indebtedness, beyond any period of grace, if any, provided with respect thereto, if
the effect thereof is to cause an acceleration, mandatory redemption, a requirement that the
Company offer to purchase such Indebtedness or other required repurchase or early
amortization of such Indebtedness, or permit the holder(s) of such Indebtedness to
accelerate the maturity of any such Indebtedness or require a redemption, early amortization
or repurchase of such Indebtedness; or any such Indebtedness shall be otherwise declared to
be due and payable (by acceleration or otherwise) or required to be prepaid, redeemed,
amortized or otherwise repurchased by the Company or any of its Subsidiaries (other than by
a regularly scheduled required prepayment) prior to the stated maturity thereof.




     (F) Involuntary Bankruptcy; Appointment of Receiver, Etc.




     (i) An involuntary case shall be commenced against the Company or any of the
Company’s Subsidiaries and the petition shall not be dismissed, stayed, bonded or
discharged within forty-five (45) days after commencement of the case; or a court having
jurisdiction in the premises shall enter a decree or order for relief in respect of the
Company or any of the Company’s Subsidiaries in an involuntary case, under any
applicable bankruptcy, insolvency or other similar law now or hereinafter in effect; or
any other similar relief shall be granted under any applicable federal, state, local or
foreign law.




     (ii) A decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers over the Company or any of the Company’s Subsidiaries or over all
or a substantial part of the property of the Company or any of the Company’s
Subsidiaries shall be entered; or an interim receiver, trustee or other custodian of the
Company or any of the Company’s Subsidiaries or of all or a substantial part of the
property of the Company or any of the Company’s Subsidiaries shall be appointed or



85









 







a warrant of attachment, execution or similar process against any substantial part
of the property of the Company or any of the Company’s Subsidiaries shall be issued and
any such event shall not be stayed, dismissed, bonded or discharged within forty-five
(45) days after entry, appointment or issuance.




     (G) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Company or any of the
Company’s Subsidiaries shall (i) commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (ii) consent to the entry of an
order for relief in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, (iii) consent to the appointment of or taking possession
by a receiver, trustee or other custodian for all or a substantial part of its property,
(iv) make any assignment for the benefit of creditors or (v) take any corporate action to
authorize any of the foregoing.




     (H) Judgments and Attachments. Any money judgment(s), writ or warrant of attachment,
or similar process against the Company or any of its Subsidiaries or any of their respective
assets involving in any single case or in the aggregate an amount in excess of Twenty
Million and 00/100 Dollars ($20,000,000) (to the extent not covered by independent third
party insurance as to which the insurer does not dispute coverage) is or are entered and
shall remain undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days
or in any event later than fifteen (15) days prior to the date of any proposed sale
thereunder.




     (I) Dissolution. Any order, judgment or decree shall be entered against the Company or
any Subsidiary decreeing its involuntary dissolution or split up and such order shall remain
undischarged and unstayed for a period in excess of forty-five (45) days; or the Company or
any Subsidiary shall otherwise dissolve or cease to exist except as specifically permitted
by this Agreement.




     (J) Loan Documents. At any time, for any reason, any Loan Document as a whole that
materially affects the ability of the Administrative Agent, or any of the Lenders to enforce
the Obligations ceases to be in full force and effect or the Company or any of the Company’s
Subsidiaries party thereto seeks to repudiate its obligations thereunder.




     (K) Termination Event. Any Termination Event occurs which the Required Lenders believe
is reasonably likely to subject the Company to liability in excess of $20,000,000.




     (L) Waiver of Minimum Funding Standard. If the plan administrator of any Plan applies
under Section 412(d) of the Code for a waiver of the minimum funding standards of Section
412(a) of the Code and any Lender believes the substantial business hardship upon which the
application for the waiver is based could reasonably be expected to subject either the
Company or any Controlled Group member to liability in excess of $20,000,000.




     (M) Change of Control. A Change of Control shall occur.




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     (N) Environmental Matters. The Company or any of its Subsidiaries shall be the
subject of any proceeding or investigation (other than in connection with a Product
Liability Event) pertaining to (i) the Release by the Company or any of its Subsidiaries of
any Contaminant into the environment, (ii) the liability of the Company or any of its
Subsidiaries arising from the Release by any other Person of any Contaminant into the
environment, or (iii) any violation of any Environmental, Health or Safety Requirements of
Law which by the Company or any of its Subsidiaries, which, in any case, has or is
reasonably likely to subject the Company to liability individually or in the aggregate in
excess of $20,000,000 (to the extent not covered by independent third party insurance as to
which the insurer does not dispute coverage).




     (O) Guarantor Revocation. Any Guarantor of the Obligations shall terminate or revoke
any of its obligations under the applicable Guaranty or breach any of the material terms of
such Guaranty.




A Default shall be deemed “continuing” until cured or until waived in writing in accordance
with Section 9.2.



ARTICLE IX: ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES




          9.1. Termination of Commitments; Acceleration. (i) If any Default described in Section 8.1(F)
or 8.1(G) occurs with respect to the Company, any Subsidiary Borrower or any Subsidiary Guarantor,
the obligations of the Lenders to make Loans hereunder and the obligation of any Issuing Banks to
issue Letters of Credit hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election, action, presentment, demand, protest or
notice of any kind on the part of the Administrative Agent or any Lender, all of which the
Borrowers expressly waive. If any other Default occurs, the Required Lenders may terminate or
suspend the obligations of the Lenders to make Loans hereunder and the obligation of the Issuing
Banks to issue Letters of Credit hereunder, or declare the Obligations to be due and payable, or
both, whereupon the Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrowers expressly waive. In either case,
upon the Obligations becoming so due and payable, each Borrower will be and become thereby
unconditionally obligated, without any further notice, act or demand, to pay to the Administrative
Agent an amount in immediately available funds, which funds shall be held in the L/C Collateral
Account, equal to the difference of (x) the amount of L/C Obligations at such time plus the
aggregate amount of all fees and expenses that may accrue or arise until all Letters of Credit have
expired or been terminated, less (y) the amount on deposit in the L/C Collateral Account at such
time which is free and clear of all rights and claims of third parties and has not been applied
against the Obligations (such difference, the “Collateral Shortfall Amount”).





     (ii) If at any time while any Default is continuing, the Administrative Agent
determines that the Collateral Shortfall Amount at such time is greater than zero, the
Administrative Agent may make demand on the Borrowers to pay, and the Borrowers will,
forthwith upon such demand and without any further notice or act, pay to the
Administrative Agent the Collateral Shortfall Amount, which funds shall be deposited in
the L/C Collateral Account.



87









 






     (iii) The Administrative Agent may at any time while any Default is continuing and
funds are deposited in the L/C Collateral Account, apply such funds to the payment of
the Obligations and any other amounts as shall from time to time have become due and
payable by any Borrower to the Administrative Agent, the Lenders or the Issuing Banks
under the Loan Documents.




     (iv) At any time while any Default is continuing, neither any Borrower nor any
Person claiming on behalf of or through any Borrower shall have any right to withdraw
any of the funds held in the L/C Collateral Account. After all of the Obligations have
been indefeasibly paid in full and the Aggregate Commitment has been terminated, any
funds remaining in the L/C Collateral Account shall be returned by the Administrative
Agent to the Company or paid to whomever may be legally entitled thereto at such time.



          9.2. Amendments. Subject to the provisions of this Article IX, the Required Lenders (or the
Administrative Agent with the consent in writing of the Required Lenders) and the Borrowers may
enter into agreements supplemental hereto for the purpose of adding or modifying any provisions to
the Loan Documents or changing in any manner the rights of the Lenders or the Borrowers hereunder
or waiving any Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of each Lender affected thereby:





     (i) Postpone or extend the Termination Date, the expiry date of any Letter of
Credit beyond the Termination Date or any other date fixed for any payment of principal
of, or interest on, the Loans, the Reimbursement Obligations or any fees or other
amounts payable to such Lender (except with respect to (a) any modifications of the
provisions relating to amounts, timing or application of optional prepayments of Loans
and other Obligations, which modification shall require only the approval of the
Required Lenders and (b) a waiver of the application of the default rate of interest
pursuant to Section 2.10 hereof which waiver shall require only the approval of the
Required Lenders) or amend any provision of Section 2.4(B).




     (ii) Reduce the principal Dollar Amount of any Loans or L/C Obligations, or reduce
the rate or extend the time of payment of interest or fees thereon (other than a waiver
of the application of the default rate of interest pursuant to Section 2.10 hereof).




     (iii) Reduce the percentage specified in the definition of Required Lenders or any
other percentage of Lenders specified to be the applicable percentage in this Agreement
to act on specified matters or amend the definitions of “Required Lenders”, “Pro Rata
Share” or “Combined Pro Rata Share”.




     (iv) Increase the amount of the Commitment of any Lender hereunder, increase any
Lender’s Pro Rata Share or modify the obligation of any Lender to make a disbursement in
its Pro Rata Share thereof, in each case without the consent of such Lender.



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     (v) Permit the Company or, other than pursuant to a transaction permitted under the
terms of this Agreement, any Subsidiary Borrower to assign its rights under this
Agreement.




     (vi) Other than pursuant to a transaction permitted by the terms of this Agreement,
release any Guarantor from its obligations under the Guaranty.




     (vii) Amend Section 7.2(K), Section 13.2, Section 13.3 or this Section 9.2.




     No amendment of any provision of this Agreement relating to (a) the Administrative Agent
shall be effective without the written consent of the Administrative Agent, (b) Swing Line
Loans shall be effective without the written consent of the Swing Line Bank and (c) any
Issuing Bank shall be effective without the written consent of such Issuing Bank. The
Administrative Agent may waive payment of the fee required under Section 14.3(B) without
obtaining the consent of any of the Lenders. Notwithstanding anything herein to the contrary,
the Administrative Agent may amend the provisions of Exhibits A-1 and A-2 from time to time to
take into account the effectiveness of assignments made pursuant to Section 14.3 or changes in
the Commitments pursuant to Section 2.5 or changes in the identities of the Issuing Banks,
provided the failure to do so shall not otherwise affect the rights or obligations of the
Lenders or the Borrowers hereunder.




     The Administrative Agent may notify the other parties to this Agreement of any amendments
to this Agreement which the Administrative Agent reasonably determines to be necessary as a
result of the commencement of the third stage of the European Economic and Monetary Union.
Notwithstanding anything to the contrary contained herein, any amendments so notified shall
take effect in accordance with the terms of the relevant notification.



          9.3. Preservation of Rights. No delay or omission of the Lenders or the Administrative Agent
to exercise any right under the Loan Documents shall impair such right or be construed to be a
waiver of any Default or an acquiescence therein, and the making of a Loan or the issuance of a
Letter of Credit notwithstanding the existence of a Default or the inability of the Company or any
other Borrower to satisfy the conditions precedent to such Loan or issuance of such Letter of
Credit shall not constitute any waiver or acquiescence. Any single or partial exercise of any such
right shall not preclude other or further exercise thereof or the exercise of any other right, and
no waiver, amendment or other variation of the terms, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by the requisite number of Lenders
required pursuant to Section 9.2, and then only to the extent in such writing specifically set
forth. All remedies contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent and the Lenders until all of the Termination
Conditions shall have been satisfied.




ARTICLE X: GUARANTY




          10.1. Guaranty. For valuable consideration, the receipt of which is hereby acknowledged, and
to induce the Lenders to make advances to each Borrower and to issue and participate in Letters of
Credit and Swing Line Loans, the Company and each Subsidiary

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Borrower (collectively, the “Borrower Guarantors”) hereby absolutely and unconditionally
guarantees prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and
at all times thereafter, of any and all existing and future Obligations of each Borrower to the
Administrative Agent, the Lenders, the Swing Line Bank, the Issuing Banks, or any of them, under or
with respect to the Loan Documents, whether for principal, interest, fees, expenses or otherwise
(collectively, the “Guaranteed Obligations”).




          10.2. Waivers; Subordination of Subrogation.





     (A) Each Borrower Guarantor waives notice of the acceptance of this guaranty and of the
extension or continuation of the Guaranteed Obligations or any part thereof. Each Borrower
Guarantor further waives presentment, protest, notice of notices delivered or demand made on
any Borrower or action or delinquency in respect of the Guaranteed Obligations or any part
thereof, including any right to require the Administrative Agent and the Lenders to sue any
Borrower, any other guarantor or any other Person obligated with respect to the Guaranteed
Obligations or any part thereof; provided, that if at any time any payment of any portion of
the Guaranteed Obligations is rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy or reorganization of any of the Borrowers or otherwise, the Borrower
Guarantor’s obligations hereunder with respect to such payment shall be reinstated at such
time as though such payment had not been made and whether or not the Administrative Agent or
the Lenders are in possession of this guaranty. The Administrative Agent and the Lenders
shall have no obligation to disclose or discuss with the Company their assessments of the
financial condition of the Borrowers.




     (B) Until the Guaranteed Obligations have been indefeasibly paid in full in cash, each
Borrower Guarantor (i) shall have no right of subrogation with respect to such Guaranteed
Obligations and (ii) waives any right to enforce any remedy which the Administrative Agent
now has or may hereafter have against any Borrower, any other Guarantor, any endorser or any
guarantor of all or any part of the Guaranteed Obligations or any other Person. Should any
Borrower Guarantor have the right, notwithstanding the foregoing, to exercise its
subrogation rights, each Borrower Guarantor hereby expressly and irrevocably (a)
subordinates any and all rights at law or in equity to subrogation, reimbursement,
exoneration, contribution, indemnification or set off that such Borrower Guarantor may have
to the indefeasible payment in full in cash of the Guaranteed Obligations and (b) waives any
and all defenses available to a surety, guarantor or accommodation co-obligor until the
Guaranteed Obligations are indefeasibly paid in full in cash. Each Borrower Guarantor
acknowledges and agrees that this subordination is intended to benefit the Administrative
Agent and shall not limit or otherwise affect any Borrower Guarantor liability hereunder or
the enforceability of this Guaranty, and that the Administrative Agent, the Lenders and
their successors and assigns are intended third party beneficiaries of the waivers and
agreements set forth in this Section 10.2.



          10.3. Guaranty Absolute. This guaranty is a guaranty of payment and not of collection, is a
primary obligation of each Borrower Guarantor and not one of surety, and the validity and
enforceability of this guaranty shall be absolute and unconditional irrespective of, and shall not
be impaired or affected by any of the following: (a) any extension, modification or




90









 







renewal of, or indulgence with respect to, or substitutions for, the Guaranteed Obligations or
any part thereof or any agreement relating thereto at any time; (b) any failure or omission to
enforce any right, power or remedy with respect to the Guaranteed Obligations or any part thereof
or any agreement relating thereto; (c) any waiver of any right, power or remedy with respect to the
Guaranteed Obligations or any part thereof or any agreement relating thereto; (d) any release,
surrender, compromise, settlement, waiver, subordination or modification, with or without
consideration, any other guaranties with respect to the Guaranteed Obligations or any part thereof,
or any other obligation of any Person with respect to the Guaranteed Obligations or any part
thereof; (e) the enforceability or validity of the Guaranteed Obligations or any part thereof or
the genuineness, enforceability or validity of any agreement relating thereto, including, without
limitation, as a result of a Country Risk Event; (f) the application of payments received from any
source to the payment of obligations other than the Guaranteed Obligations, any part thereof or
amounts which are not covered by this guaranty even though the Administrative Agent and the Lenders
might lawfully have elected to apply such payments to any part or all of the Guaranteed Obligations
or to amounts which are not covered by this guaranty; (g) any change in the ownership of any
Borrower or the insolvency, bankruptcy or any other change in the legal status of any Borrower; (h)
the change in or the imposition of any law, decree, regulation or other governmental act which does
or might impair, delay or in any way affect the validity, enforceability or the payment when due of
the Guaranteed Obligations; (i) the failure of the Company or any other Borrower to maintain in
full force, validity or effect or to obtain or renew when required all governmental and other
approvals, licenses or consents required in connection with the Guaranteed Obligations or this
guaranty, or to take any other action required in connection with the performance of all
obligations pursuant to the Guaranteed Obligations or this guaranty; (j) the existence of any
claim, setoff or other rights which the Company may have at any time against any Borrower, or any
other Person in connection herewith or an unrelated transaction; or (k) any other circumstances,
whether or not similar to any of the foregoing, which could constitute a defense to a guarantor;
all whether or not such Borrower Guarantor shall have had notice or knowledge of any act or
omission referred to in the foregoing clauses (a) through (k) of this paragraph. It is agreed that
each Borrower Guarantor’s liability hereunder is several and independent of any other guaranties or
other obligations at any time in effect with respect to the Guaranteed Obligations or any part
thereof and that each Borrower Guarantor’s liability hereunder may be enforced regardless of the
existence, validity, enforcement or non-enforcement of any such other guaranties or other
obligations or any provision of any applicable law or regulation purporting to prohibit payment by
any Borrower of the Guaranteed Obligations in the manner agreed upon between the Borrower and the
Administrative Agent and the Lenders.




          10.4. Acceleration. Each Borrower Guarantor agrees that, as between such Borrower Guarantor
on the one hand, and the Lenders and the Administrative Agent, on the other hand, the obligations
of each Borrower guaranteed under this Article X may be declared to be forthwith due and payable,
or may be deemed automatically to have been accelerated, as provided in Section 9.1 hereof for
purposes of this Article X, notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Borrower or otherwise) preventing such declaration as against
such Borrower and that, in the event of such declaration or automatic acceleration, such
obligations (whether or not due and payable by such Borrower) shall forthwith become due and
payable by each Borrower Guarantor for purposes of this Article X.




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          10.5. Marshaling; Reinstatement. None of the Lenders nor the Administrative Agent nor any
Person acting for or on behalf of the Lenders or the Administrative Agent shall have any obligation
to marshal any assets in favor of any Borrower Guarantor or against or in payment of any or all of
the Guaranteed Obligations. If any Borrower Guarantor or any other guarantor of all or any part of
the Guaranteed Obligations makes a payment or payments to any Lender or the Administrative Agent,
which payment or payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to any Borrower Guarantor or any
other guarantor or any other Person, or their respective estates, trustees, receivers or any other
party, including, without limitation, each Borrower Guarantor, under any bankruptcy law, state or
federal law, common law or equitable cause, then, to the extent of such payment or repayment, the
part of the Guaranteed Obligations which has been paid, reduced or satisfied by such amount shall
be reinstated and continued in full force and effect as of the time immediately preceding such
initial payment, reduction or satisfaction.




          10.6. Termination Date. This guaranty shall continue in effect until the later of (a) the
Facility Termination Date, and (b) the date on which all of the Guaranteed Obligations have been
paid in full in cash, subject to the proviso in Section 10.2(A).




ARTICLE XI: GENERAL PROVISIONS




          11.1. Survival of Representations. All representations and warranties of the Borrowers
contained in this Agreement shall survive delivery of this Agreement, the making of the Loans and
the issuance of the Letters of Credit herein contemplated so long as any principal, accrued
interest, fees, or any other amount due and payable under any Loan Document is outstanding and
unpaid (other than contingent reimbursement and indemnification obligations) and so long as the
Commitments have not been terminated.




          11.2. Governmental Regulation. Anything contained in this Agreement to the contrary
notwithstanding, no Lender shall be obligated to extend credit to the Company or any other Borrower
in violation of any limitation or prohibition provided by any applicable statute or regulation.




          11.3. Performance of Obligations. The Borrowers agree that the Administrative Agent may, but
shall have no obligation to (i) at any time, pay or discharge taxes, liens, security interests or
other encumbrances levied or placed on or threatened against any property of any Borrower to the
extent any such Borrower is required by the terms hereof to pay any such amount, but has not done
so and (ii) after the occurrence and during the continuance of a Default, to make any other payment
or perform any act required of the Company or any other Borrower under any Loan Document or take
any other action which the Administrative Agent in its discretion deems necessary or desirable to
protect or preserve such property of the Company. The Administrative Agent shall use its
reasonable efforts to give the applicable Borrower notice of any action taken under this Section
11.3 prior to the taking of such action or promptly thereafter provided the failure to give such
notice shall not affect the applicable Borrower’s obligations in respect thereof. The Borrowers
agree to pay the Administrative Agent, upon demand, the principal amount of all funds advanced by
the Administrative Agent under this Section 11.3, together with interest thereon at the rate from
time to time applicable to Floating Rate Loans from the date of such advance until the outstanding
principal balance thereof is paid




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in full. If any Borrower fails to make payment in respect of any such advance under this
Section 11.3 within one (1) Business Day after the date the applicable Borrower receives written
demand therefor from the Administrative Agent, the Administrative Agent shall promptly notify each
Lender and each Lender agrees that it shall thereupon make available to the Administrative Agent,
in Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of such
advance. If such funds are not made available to the Administrative Agent by such Lender within
one (1) Business Day after the Administrative Agent’s demand therefor, the Administrative Agent
will be entitled to recover any such amount from such Lender together with interest thereon at the
Federal Funds Effective Rate for each day during the period commencing on the date of such demand
and ending on the date such amount is received. The failure of any Lender to make available to the
Administrative Agent its Pro Rata Share of any such unreimbursed advance under this Section 11.3
shall neither relieve any other Lender of its obligation hereunder to make available to the
Administrative Agent such other Lender’s Pro Rata Share of such advance on the date such payment is
to be made nor increase the obligation of any other Lender to make such payment to the
Administrative Agent.




          11.4. Headings. Section headings in the Loan Documents are for convenience of reference only,
and shall not govern the interpretation of any of the provisions of the Loan Documents.




          11.5. Entire Agreement. The Loan Documents and the fee letters described in Section 5.1(viii)
hereof embody the entire agreement and understanding among the Borrowers, the Administrative Agent,
the Syndication Agent and the Lenders and supersede all prior agreements and understandings among
the Borrowers, the Administrative Agent, the Syndication Agent and the Lenders relating to the
subject matter thereof.




          11.6. Several Obligations; Benefits of this Agreement. The respective obligations of the
Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any
other Lender (except to the extent to which the Administrative Agent is authorized to act as such).
The failure of any Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns.




          11.7. Expenses; Indemnification.





     (A) Expenses. The Borrowers shall reimburse the Administrative Agent and each Arranger
for any reasonable costs, internal charges and out-of-pocket expenses (including reasonable
attorneys’ and paralegals’ fees and time charges of attorneys and paralegals for the
Administrative Agent or such Arranger, which attorneys and paralegals may be employees of
the Administrative Agent or such Arranger) paid or incurred by the Administrative Agent or
such Arranger in connection with the preparation, negotiation, execution, delivery,
syndication, distribution (including via the internet), review, amendment, modification, and
administration of the Loan Documents. The Borrowers also agree to reimburse the
Administrative Agent and each Arranger and the Lenders for any costs, internal charges and
out-of-pocket expenses (including attorneys’ and paralegals’ fees and time charges of
attorneys and paralegals for the Administrative



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Agent and such Arranger and the Lenders, which attorneys and paralegals may be
employees of the Administrative Agent or such Arranger or the Lenders) paid or incurred by
the Administrative Agent or such Arranger or any Lender in connection with the collection of
the Obligations and enforcement of the Loan Documents. In addition to expenses set forth
above, the Borrowers agree to reimburse the Administrative Agent, promptly after the
Administrative Agent’s request therefor, for each audit, or other business analysis
performed by or for the benefit of the Lenders in connection with this Agreement or the
other Loan Documents in an amount equal to the Administrative Agent’s then customary charges
for each person employed to perform such audit or analysis, plus all costs and expenses
(including, without limitation, travel expenses) incurred by the Administrative Agent in the
performance of such audit or analysis. Administrative Agent shall provide the Borrowers
with a detailed statement of all reimbursements requested under this Section 11.7(A).




     (B) Indemnity. The Borrowers further agree to defend, protect, indemnify, and hold
harmless the Administrative Agent, each Arranger and each and all of the Lenders and each of
their respective Affiliates, and each of such Administrative Agent’s, Arranger’s, Lender’s,
or Affiliate’s respective officers, directors, trustees, investment advisors, employees,
attorneys and agents (including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth in Article V)
(collectively, the “Indemnitees”) from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs, expenses of any kind
or nature whatsoever (including, without limitation, the fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or judicial
proceeding, whether or not any of such Indemnitees shall be designated a party thereto),
imposed on, incurred by, or asserted against such Indemnitees in any manner relating to or
arising out of:




     (i) this Agreement or any of the other Loan Documents, or any act, event or
transaction related or attendant thereto or to the making of the Loans, and the
issuance of and participation in Letters of Credit hereunder, the management of such
Loans or Letters of Credit, the use or intended use of the proceeds of the Loans or
Letters of Credit hereunder, or any of the other transactions contemplated by the Loan
Documents; or




     (ii) any liabilities, obligations, responsibilities, losses, damages, personal
injury, death, punitive damages, economic damages, consequential damages, treble
damages, intentional, willful or wanton injury, damage or threat to the environment,
natural resources or public health or welfare, costs and expenses (including, without
limitation, attorney, expert and consulting fees and costs of investigation, feasibility
or remedial action studies), fines, penalties and monetary sanctions, interest, direct
or indirect, known or unknown, absolute or contingent, past, present or future relating
to violation of any Environmental, Health or Safety Requirements of Law arising from or
in connection with the past, present or future operations of the Company, its
Subsidiaries or any of their respective predecessors in interest, or, the past, present
or future environmental, health or safety condition of any respective property of the
Company or its Subsidiaries, the presence of asbestos-containing materials at any



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respective property of the Company or its Subsidiaries or the Release or threatened
Release of any Contaminant into the environment (collectively, the “Indemnified
Matters”);




provided, however, no Borrower shall have any obligation to an Indemnitee hereunder with
respect to Indemnified Matters caused solely by or resulting solely from the willful
misconduct or Gross Negligence of such Indemnitee with respect to the Loan Documents, as
determined by the final non-appealed judgment of a court of competent jurisdiction. If the
undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the applicable Borrower
shall contribute the maximum portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.




     (C) Waiver of Certain Claims; Settlement of Claims. Neither the Administrative Agent,
either Arranger, any Lender nor the Company or any other Borrower shall be liable under this
Agreement or any Loan Document or in respect of any act, omission or event relating to the
transaction contemplated hereby or thereby, on any theory of liability seeking
consequential, special, indirect, exemplary or punitive damages. No settlement shall be
entered into by the Company or any of its Subsidiaries with respect to any claim,
litigation, arbitration or other proceeding relating to or arising out of the transactions
evidenced by this Agreement or the other Loan Documents (whether or not the Administrative
Agent or any Lender or any Indemnitee is a party thereto) unless such settlement releases
all Indemnitees from any and all liability with respect thereto.




     (D) Survival of Agreements. The obligations and agreements of the Borrowers under this
Section 11.7 shall survive the termination of this Agreement.




     (E) All amounts due under the preceding clauses (A) and (B) of this Section 11.7 shall
be payable promptly after written demand therefor.



          11.8. Numbers of Documents. All statements, notices, closing documents, and requests
hereunder shall be furnished to the Administrative Agent with sufficient counterparts so that the
Administrative Agent may furnish one to each of the Lenders.




          11.9. Accounting. Except as provided to the contrary herein, all accounting terms used herein
shall be interpreted and all accounting determinations hereunder shall be made in accordance with
Agreement Accounting Principles. If any changes in generally accepted accounting principles are
hereafter required or permitted and are adopted by the Company or any of its Subsidiaries with the
agreement of its independent certified public accountants and such changes result in a change in
the method of calculation of any of the financial covenants, tests, restrictions or standards
herein or in the related definitions or terms used therein (“Accounting Changes”), the parties
hereto agree, at the Company’s request, to enter into negotiations, in good faith, in order to
amend such provisions in a credit neutral manner so as to reflect equitably such changes with the
desired result that the criteria for evaluating the Company’s and its Subsidiaries’ financial
condition shall be the same after such changes as if such changes had not

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been made; provided, however, until such provisions are amended in a manner reasonably
satisfactory to the Administrative Agent and the Required Lenders, no Accounting Change shall be
given effect in such calculations and all financial statements and reports required to be delivered
hereunder shall be prepared in accordance with Agreement Accounting Principles without taking into
account such Accounting Changes. In the event such amendment is entered into, all references in
this Agreement to Agreement Accounting Principles shall mean generally accepted accounting
principles as of the date of such amendment.




          11.10. Severability of Provisions. Any provision in any Loan Document that is held to be
inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable.




          11.11. Nonliability of Lenders. The relationship between the Borrowers and the Lenders and
the Administrative Agent shall be solely that of borrower and lender. Neither the Administrative
Agent nor any Lender shall have any fiduciary responsibilities to the Borrowers. Neither the
Administrative Agent nor any Lender undertakes any responsibility to any Borrower to review or
inform any Borrower of any matter in connection with any phase of the Borrowers’ business or
operations.




          11.12. GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AGREEMENT, ON BEHALF OF ITSELF
AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE
BETWEEN ANY BORROWER AND THE ADMINISTRATIVE AGENT, ANY LENDER ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING §735 ILCS 105/5-1 ET
SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.




          11.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.





     (A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN CLAUSE (B), EACH OF THE PARTIES
HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE,
SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT
THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS CLAUSE (A) ANY



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OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.




     (B) OTHER JURISDICTIONS. EACH BORROWER AGREES THAT THE ADMINISTRATIVE AGENT AND ANY
LENDER SHALL HAVE THE RIGHT TO PROCEED AGAINST EACH BORROWER OR ITS RESPECTIVE PROPERTY IN A
COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER ANY
BORROWER OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. EACH BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY SUCH PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
SUCH PERSON. EACH BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS CLAUSE (B).




     (C) VENUE. EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.




     (D) SERVICE OF PROCESS. EACH BORROWER IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN
THE MANNER PROVIDED FOR NOTICES IN ARTICLE XV, AND THE COMPANY AND EACH BORROWER OR
GUARANTOR LOCATED OR ORGANIZED OUTSIDE OF THE STATE OF ILLINOIS HEREBY IRREVOCABLY APPOINTS
THE COMPANY AT THE ADDRESS PROVIDED IN SECTION 15.1, AS ITS AGENT FOR SERVICE OF PROCESS OUT
OF ANY OF THE COURTS REFERRED TO IN PARAGRAPHS (A) AND (B) ABOVE AND THE COMPANY HEREBY
ACCEPTS SUCH APPOINTMENT. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO
THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.




     (E) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY



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HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL
BY JURY.




     (F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY HERETO THAT
IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF SECTION 11.7 AND THIS
SECTION 11.13, WITH ITS COUNSEL.



          11.14. Other Transactions. Each of the Administrative Agent, the Arrangers, the Lenders, the
Swing Line Bank, the Issuing Banks and the Borrowers acknowledge that the Lenders (or Affiliates of
the Lenders) may, from time to time, effect transactions for their own accounts or the accounts of
customers, and hold positions in loans or options on loans of the Company, the Company’s
Subsidiaries and other companies that may be the subject of this credit arrangement and nothing in
this Agreement shall impair the right of any such Person to enter into any such transaction (to the
extent it is not expressly prohibited by the terms of this Agreement) or give any other Person any
claim or right of action hereunder as a result of the existence of the credit arrangements
hereunder, all of which are hereby waived. In addition, certain Affiliates of one or more of the
Lenders are or may be securities firms and as such may effect, from time to time, transactions for
their own accounts or for the accounts of customers and hold positions in securities or options on
securities of the Company, the Company’s Subsidiaries and other companies that may be the subject
of this credit arrangement and nothing in this Agreement shall impair the right of any such Person
to enter into any such transaction (to the extent it is not expressly prohibited by the terms of
this Agreement) or give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived. Each of the
Administrative Agent, the Arrangers, the Lenders, the Swing Line Bank, the Issuing Banks and the
Borrowers acknowledges and consents to these multiple roles, and further acknowledges that the fact
that any such unit or Affiliate is providing another service or product or proposal therefor to the
Company or any of its Subsidiaries does not mean that such service, product, or proposal is or will
be acceptable to any of the Administrative Agent, the Arrangers, the Lenders, the Swing Line Bank
or the Issuing Banks.




          11.15. Subordination of Intercompany Indebtedness. Each Borrower agrees that any and all
claims of such Borrower against a Guarantor with respect to any “Intercompany Indebtedness” (as
hereinafter defined) shall be subordinate and subject in right of payment to the prior payment, in
full and in cash, of all Obligations and Hedging Obligations under Hedging Arrangements entered
into with the Lenders or any of their Affiliates (“Designated Hedging Agreements”); provided that,
and not in contravention of the foregoing, so long as no Default has occurred and is continuing
each Borrower may make loans to and receive payments in the ordinary course with respect to such
Intercompany Indebtedness from each such Guarantor to the extent not prohibited by the terms of
this Agreement and the other Loan Documents. Notwithstanding any right of any Borrower to ask,
demand, sue for, take or receive any payment from any Guarantor, all rights, liens and security
interests of any Borrower, whether now or hereafter arising and howsoever existing, in any assets
of any Guarantor shall be and are subordinated to the rights of the holders of the Obligations and
the Administrative Agent in those assets. No Borrower shall have any right to possession of any
such asset or to foreclose upon




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any such asset, whether by judicial action or otherwise, unless and until all of the
Obligations (other than contingent indemnity obligations) and the Hedging Obligations under
Designated Hedging Agreements shall have been fully paid and satisfied (in cash) and all financing
arrangements pursuant to any Loan Document or Designated Hedging Agreement have been terminated.
If all or any part of the assets of any Guarantor, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of such Guarantor, whether partial or
complete, voluntary or involuntary, and whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or proceeding, or if the
business of any such Guarantor is dissolved or if substantially all of the assets of any such
Guarantor are sold, then, and in any such event (such events being herein referred to as an
“Insolvency Event”), any payment or distribution of any kind or character, either in cash,
securities or other property, which shall be payable or deliverable upon or with respect to any
indebtedness of any Guarantor to any Borrower (“Intercompany Indebtedness”) shall be paid or
delivered directly to the Administrative Agent for application on any of the Obligations and
Hedging Obligations under Designated Hedging Agreements, due or to become due, until such
Obligations and Hedging Obligations (other than contingent indemnity obligations) shall have first
been fully paid and satisfied (in cash). Should any payment, distribution, security or instrument
or proceeds thereof be received by any Borrower upon or with respect to the Intercompany
Indebtedness after an Insolvency Event prior to the satisfaction of all of the Obligations (other
than contingent indemnity obligations) and Hedging Obligations under Designated Hedging Agreements
and the termination of all financing arrangements pursuant to any Loan Document and or Designated
Hedging Agreements, such Borrower shall receive and hold the same in trust, as trustee, for the
benefit of the holders of the Obligations and such Hedging Obligations and shall forthwith deliver
the same to the Administrative Agent, for the benefit of such Persons, in precisely the form
received (except for the endorsement or assignment of such Borrower where necessary), for
application to any of the Obligations and such Hedging Obligations, due or not due, and, until so
delivered, the same shall be held in trust by such Borrower as the property of the holders of the
Obligations and such Hedging Obligations. If any Borrower fails to make any such endorsement or
assignment to the Administrative Agent, the Administrative Agent or any of its officers or
employees are irrevocably authorized to make the same. Each Borrower agrees that until the
Obligations (other than the contingent indemnity obligations) and such Hedging Obligations have
been paid in full (in cash) and satisfied and all financing arrangements pursuant to any Loan
Document or any Designated Hedging Agreement have been terminated, no Borrower will assign or
transfer to any Person (other than the Administrative Agent) any claim such Borrower has or may
have against any Guarantor.




          11.16. Lenders Not Utilizing Plan Assets. None of the consideration used by any of the
Lenders or Designated Lenders to make its Loans constitutes for any purpose of ERISA or Section
4975 of the Code assets of any “plan” as defined in Section 3(3) of ERISA or Section 4975 of the
Code and the rights and interests of each of the Lenders and Designated Lenders in and under the
Loan Documents shall not constitute such “plan assets” under ERISA.




          11.17. Collateral. Each of the Lenders and the Issuing Banks represents to the Administrative
Agent, each of the other Lenders and each of the other Issuing Banks 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.




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          11.18. PMP. Each Lender which is a party to this Agreement on the date hereof represents and
warrants on the date hereof to each Borrower organized under the laws of the Netherlands that (i)
it is a PMP, (ii) it is aware that it does not benefit, with respect to the credit facility
evidenced by this Agreement, from the protection offered by the Dutch Banking Act to Lenders which
are not PMPs, and (iii) it has made its own independent appraisal of risks arising under or in
connection with any Loan Documents.




          11.19. USA PATRIOT Act. Each Lender that is subject to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby notifies
each Borrower that pursuant to the requirements of the Act, it is required to obtain, verify and
record information that identifies each Borrower, which information includes the name and address
of each Borrower and other information that will allow such Lender to identify each Borrower in
accordance with the Act




ARTICLE XII: THE ADMINISTRATIVE AGENT




          12.1. Appointment; Nature of Relationship. JPMorgan is appointed by the Lenders as the
Administrative Agent hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the contractual representative of such
Lender with the rights and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the express conditions
contained in this Article XII. In its capacity as the Lenders’ contractual representative, the
Administrative Agent is acting as an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders agrees to assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty.




          12.2. Powers. The Administrative Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Administrative Agent by the terms of each thereof,
together with such powers as are reasonably incidental thereto. The Administrative Agent shall
have no implied duties or fiduciary duties to the Lenders, or any obligation to the Lenders to take
any action hereunder or under any of the other Loan Documents except any action specifically
provided by the Loan Documents required to be taken by the Administrative Agent.




          12.3. General Immunity. Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable to the Borrowers, the Lenders or any Lender for any action
taken or omitted to be taken by it or them hereunder or under any other Loan Document or in
connection herewith or therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen solely from the Gross Negligence or
willful misconduct of such Person.




          12.4. No Responsibility for Credit Extensions, Creditworthiness, Recitals, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any credit extension hereunder;




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(ii) the performance or observance of any of the covenants or agreements of any obligor under
any Loan Document; (iii) the satisfaction of any condition specified in Article V, except receipt
of items required to be delivered solely to the Administrative Agent; (iv) the existence or
possible existence of any Default or (v) the validity, effectiveness or genuineness of any Loan
Document or any other instrument or writing furnished in connection therewith. The Administrative
Agent shall not be responsible to any Lender for any recitals, statements, representations or
warranties herein or in any of the other Loan Documents or for the execution, effectiveness,
genuineness, validity, legality, enforceability, collectibility, or sufficiency of this Agreement
or any of the other Loan Documents or the transactions contemplated thereby, or for the financial
condition of any guarantor of any or all of the Obligations, the Company or any of its
Subsidiaries.




          12.5. Action on Instructions of Lenders. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by the Required Lenders (or all of the Lenders in the
event that and to the extent that this Agreement expressly requires such), and such instructions
and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders and
on all owners of Loans. The Administrative Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such action.




          12.6. Employment of Agents and Counsel. The Administrative Agent may execute any of its
duties as the Administrative Agent hereunder and under any other Loan Document by or through
employees, agents, and attorney-in-fact and shall not be answerable to the Lenders, except as to
money or securities received by it or its authorized agent, for the default or misconduct of any
such agent or attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning the contractual arrangement between the
Administrative Agent and the Lenders and all matters pertaining to the Administrative Agent’s
duties hereunder and under any other Loan Document.




          12.7. Reliance on Documents; Counsel. The Administrative Agent shall be entitled to rely upon
any notice, consent, certificate, affidavit, letter, telegram, statement, paper or document
believed by it to be genuine and correct and to have been signed or sent by the proper person or
persons, and, in respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative Agent.




          12.8. The Administrative Agent’s Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Administrative Agent (i) for any amounts not reimbursed by any Borrower
for which the Administrative Agent is entitled to reimbursement by any Borrower under the Loan
Documents, (ii) for any other expenses incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration and enforcement of the Loan Documents and (iii)
for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the transactions contemplated
thereby, or the enforcement of any of the

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terms thereof or of any such other documents, provided that no Lender shall be liable for any
of the foregoing to the extent any of the foregoing is found in a final non-appealable judgment by
a court of competent jurisdiction to have arisen solely from the Gross Negligence or willful
misconduct of the Administrative Agent.




          12.9. Rights as a Lender. With respect to its Commitment, Loans made by it, and Letters of
Credit issued by it, the Administrative Agent shall have the same rights and powers hereunder and
under any other Loan Document as any Lender or Issuing Bank and may exercise the same as though it
were not the Administrative Agent, and the term “Lender” or “Lenders”, “Issuing Bank” or “Issuing
Banks” shall, unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Company or any of its
Subsidiaries in which such Person is not prohibited hereby from engaging with any other Person.




          12.10. Lender Credit Decision. Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent, either Arranger or any other Lender and based on
the financial statements prepared by the Company and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent, either Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement and the other Loan Documents.




          12.11. Successor Administrative Agent. The Administrative Agent may resign at any time by
giving written notice thereof to the Lenders and the Company. Upon any such resignation, the
Required Lenders shall have the right to appoint, on behalf of the Borrowers and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty days after the
retiring Administrative Agent’s giving notice of resignation, then the retiring Administrative
Agent may appoint, on behalf of the Borrowers and the Lenders, a successor Administrative Agent.
Notwithstanding anything herein to the contrary, so long as no Default has occurred and is
continuing, each such successor Administrative Agent shall be subject to approval by the Company,
which approval shall not be unreasonably withheld or delayed. Such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as the Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Loan Documents. After any retiring Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of this Article XII shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent hereunder and under the other Loan Documents.




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          12.12. Documentation Agents, Syndication Agent and Arrangers. Neither the Documentation
Agents, the Syndication Agent nor the Arrangers shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, except for the Arrangers, those applicable
to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be
deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same
acknowledgments with respect to such Lenders as it makes with respect to the Administrative Agent
in Section 12.10.




ARTICLE XIII: SETOFF; RATABLE PAYMENTS




          13.1. Setoff. In addition to, and without limitation of, any rights of the Lenders under
applicable law, if any Default occurs and is continuing, any Indebtedness from any Lender to the
Company or any other Borrower (including all account balances, whether provisional or final and
whether or not collected or available) may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the Obligations, or any part hereof, shall then be
due.




          13.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has payment made to it
upon its Obligations (other than payments received pursuant to Sections 4.1, 4.2 or 4.4) in a
greater proportion than that received by any other Lender, such Lender agrees, promptly upon
demand, to purchase a portion of the Obligations held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall be made.




          13.3. Application of Payments. The Administrative Agent shall, unless otherwise specified at
the direction of the Required Lenders which direction shall be consistent with the last two
sentences of this Section 13.3, apply all payments and prepayments in respect of any Obligations in
the following order:





     (i) first, to pay interest on and then principal of any portion of the Loans which
the Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or the applicable
Borrower;




     (ii) second, to pay interest on and then principal of any advance made under
Section 11.3 for which the Administrative Agent has not then been paid by the applicable
Borrower or reimbursed by the Lenders;




     (iii) third, to the ratable payment of the Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the Administrative Agent or either
Arranger;




     (iv) fourth, to pay Obligations in respect of any fees, expenses, reimbursements or
indemnities then due to the Lenders and the issuer(s) of Letters of Credit;




     (v) fifth, to pay interest due in respect of Swing Line Loans;



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     (vi) sixth, to pay interest due in respect of Loans (other than Swing Line Loans)
and L/C Obligations;




     (vii) seventh, to the ratable payment or prepayment of principal outstanding on
Swing Line Loans;




     (viii) eighth, to the ratable payment or prepayment of principal outstanding on
Loans (other than Swing Line Loans) and Reimbursement Obligations;




     (ix) ninth, to provide cash collateral for all other L/C Obligations; and




     (x) tenth, to the ratable payment of all other Obligations.


Unless otherwise designated (which designation shall only be applicable prior to the occurrence of
a Default) by the Company, all principal payments in respect of Loans (other than Swing Line Loans)
shall be applied first, to repay outstanding Floating Rate Loans, and then to repay outstanding
Eurodollar Rate Loans with those Eurodollar Rate Loans which have earlier expiring Interest Periods
being repaid prior to those which have later expiring Interest Periods. The order of priority set
forth in this Section 13.3 and the related provisions of this Agreement are set forth solely to
determine the rights and priorities of the Administrative Agent, the Lenders, the Swing Line Bank
and the issuer(s) of Letters of Credit as among themselves. The order of priority set forth in
clauses (iv) through (x) of this Section 13.3 may at any time and from time to time be changed by
the Required Lenders without necessity of notice to or consent of or approval by any Borrower, or
any other Person; provided, that the order of priority of payments in respect of Swing Line Loans
may be changed only with the prior written consent of the Swing Line Bank. The order of priority
set forth in clauses (i) through (iii) of this Section 13.3 may be changed only with the prior
written consent of the Administrative Agent, and, in the case of clause (iii), with the prior
written consent of each Arranger.





     13.4. Relations Among Lenders.




     (A) No Action Without Consent. Except with respect to the exercise of set-off rights
of any Lender in accordance with Section 12.1, the proceeds of which are applied in
accordance with this Agreement, and each Lender agrees that it will not take any action, nor
institute any actions or proceedings, against the Borrowers or any other obligor hereunder
or with respect to any Loan Document, without the prior written consent of the Required
Lenders or, as may be provided in this Agreement or the other Loan Documents, at the
direction of the Administrative Agent.




     (B) Not Partners; No Liability. The Lenders are not partners or co-venturers, and no
Lender shall be liable for the acts or omissions of, or (except as otherwise set forth
herein in case of the Administrative Agent) authorized to act for, any other Lender. The
Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the
payment of the principal of and interest on any Loan after the date such principal or
interest has become due and payable pursuant to the terms of this Agreement.



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ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS




          14.1. Successors and Assigns. The terms and provisions of the Loan Documents shall be binding
upon and inure to the benefit of the Borrowers and the Lenders and their respective successors and
assigns, except that (A) other than in connection with a transaction involving a Subsidiary
Borrower which is permitted pursuant to the terms of this Agreement, no Borrower shall have any
right to assign its rights or obligations under the Loan Documents without the consent of all of
the Lenders, and any such assignment in violation of this Section 14.1(A) shall be null and void,
and (B) any assignment by any Lender must be made in compliance with Section 14.3 hereof. The
parties to this Agreement acknowledge that clause (B) of this Section 14.1 relates only to absolute
assignments and does not prohibit assignments creating security interests, including, without
limitation, (x) any pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a Lender which is a
fund, any pledge or assignment of all or any portion of its rights under this Agreement and any
Note to its trustee in support of its obligations to its trustee; provided, however, that no such
pledge or assignment creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with the provisions of
Section 14.3. The Administrative Agent may treat each Lender as the owner of the Loans made by
such Lender hereunder for all purposes hereof unless and until such Lender complies with Section
14.3 hereof in the case of an assignment thereof or, in the case of any other transfer, a written
notice of the transfer is filed with the Administrative Agent. Any assignee or transferee of a
Loan, Commitment, L/C Interest or any other interest of a Lender under the Loan Documents agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or giving such authority
or consent is the owner of any Loan, shall be conclusive and binding on any subsequent owner,
transferee or assignee of such Loan.




          14.2. Participations.





     (A) Permitted Participants; Effect. Subject to the terms set forth in this Section
14.2, any Lender may, in the ordinary course of its business and in accordance with
applicable law, at any time sell to one or more banks or other entities which are, to the
extent required by the Dutch Banking Act and the Dutch Exemption Regulation, PMPs
(“Participants”) participating interests in any Loan owing to such Lender, the Commitment of
such Lender, any L/C Interest of such Lender or any other interest of such Lender under the
Loan Documents on a pro rata or non-pro rata basis. Notice of such participation to the
Company and the Administrative Agent shall be required prior to any participation becoming
effective with respect to a Participant which is not a Lender, Designated Lender or an
Affiliate thereof. Upon receiving said notice, the Administrative Agent shall record the
participation in the Register it maintains. Moreover, notwithstanding such recordation,
such participation shall not be considered an assignment under Section 14.3 of this
Agreement and such Participant shall not be considered a Lender. In the event of any such
sale by a Lender of participating interests to a Participant, such Lender’s obligations
under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations, such Lender shall
remain the owner of all Loans made



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by it for all purposes under the Loan Documents, all amounts payable by the applicable
Borrower under this Agreement shall be determined as if such Lender had not sold such
participating interests, and the applicable Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under the Loan Documents except that, for purposes of Article IV
hereof, the Participants shall be entitled to the same rights as if they were Lenders.




     (B) Voting Rights. Each Lender shall retain the sole right to approve, without the
consent of any Participant, any amendment, modification or waiver of any provision of the
Loan Documents other than any amendment, modification or waiver which, if the Participant
were a Lender hereunder, would require the consent of such Participant pursuant to the terms
of Section 9.2.




     (C) Benefit of Setoff. The Borrowers agree that each Participant shall be deemed to
have the right of setoff provided in Section 13.1 hereof in respect to its participating
interest in amounts owing under the Loan Documents to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under the Loan Documents,
provided that each Lender shall retain the right of setoff provided in Section 13.1 hereof
with respect to the amount of participating interests sold to each Participant except to the
extent such Participant exercises its right of setoff. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided in Section
13.1 hereof, agrees to share with each Lender, any amount received pursuant to the exercise
of its right of setoff, such amounts to be shared in accordance with Section 13.2 as if each
Participant were a Lender.




     14.3. Assignments.




     (A) Permitted Assignments. Any Lender (each such assigning Lender under this Section
14.3 being a “Seller”) may, in accordance with applicable law, at any time assign to one or
more banks or other entities that are Eligible Assignees (“Purchasers”) all or a portion of
its rights and obligations under this Agreement (including, without limitation, its
Commitment, Loans owing to it, its participation interests in existing Letters of Credit and
Swing Line Loans, and its obligation to participate in additional Letters of Credit and
Swing Line Loans) in accordance with the provisions of this Section 14.3. Each assignment
shall be of a constant, and not a varying, ratable percentage of all of the Seller’s rights
and obligations under this Agreement. Such assignment shall be substantially in the form of
Exhibit D hereto and shall not be permitted hereunder unless such assignment is either for
all of such Seller’s rights and obligations under the Loan Documents or, without the prior
written consent of the Administrative Agent, involves loans and commitments in an aggregate
amount of at least Five Million and 00/100 Dollars ($5,000,000) (which minimum amount shall
not apply to any assignment between Lenders, or to an Affiliate of any Lender). The
written consent of the Funded Issuing Banks and the Company (which consent, in each such
case, shall not be unreasonably withheld or delayed), shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not a Lender or an
Affiliate of such assigning Lender; provided that no such consent of the Company shall be
required to the extent a Default has occurred and is then continuing or if such assignment
is in connection with the



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physical settlement of one or more credit derivative transactions. The written consent
of the Administrative Agent (which consent shall not be unreasonably withheld or delayed)
shall be required prior to each assignment becoming effective.




     (B) Effect; Effective Date. Upon (i) delivery to the Administrative Agent of a notice
of assignment, substantially in the form attached as Appendix I to Exhibit D hereto (a
“Notice of Assignment”), together with any consent required by Section 14.3(A) hereof, (ii)
payment of a Four Thousand and 00/100 Dollar ($4,000) fee by the assignor to the
Administrative Agent for processing such assignment, which fee shall not apply to any
assignment from a Lender to an Affiliate of such Lender, and (iii) the completion of the
recording requirements in Section 14.3(C), such assignment shall become effective on the
later of such date when the requirements in clauses (i), (ii), and (iii) are met or the
effective date specified in such Notice of Assignment. The Notice of Assignment shall
contain a representation by the Purchaser to the effect that none of the consideration used
to make the purchase of the Commitment, Loans and L/C Obligations under the applicable
assignment agreement are “plan assets” as defined under ERISA and that the rights and
interests of the Purchaser in and under the Loan Documents will not be “plan assets” under
ERISA. On and after the effective date of such assignment, such Purchaser, if not already a
Lender, shall for all purposes be a Lender party to this Agreement and any other Loan
Documents executed by the Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original party hereto, and no
further consent or action by any Borrower, the Lenders or the Administrative Agent shall be
required to release the Seller with respect to the percentage of the Aggregate Commitment,
Loans and Letter of Credit and Swing Line Loan participations assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section 14.3(B), the
Seller, the Administrative Agent and the Borrowers shall make appropriate arrangements so
that, to the extent notes have been issued to evidence any of the transferred Loans,
replacement notes are issued to such Seller and new notes or, as appropriate, replacement
notes, are issued to such Purchaser, in each case in principal amounts reflecting their
Commitments, as adjusted pursuant to such assignment. Notwithstanding anything to the
contrary herein, no Borrower shall, at any time, be obligated to pay under Section 2.14(E)
to any Lender that is a Purchaser, assignee or transferee any sum in excess of the sum which
such Borrower would have been obligated to pay in respect of such transferred Loan to the
Lender that was the Seller, assignor or transferor had such assignment or transfer not been
effected.




     (C) The Register. Notwithstanding anything to the contrary in this Agreement, each
Borrower hereby designates the Administrative Agent, and the Administrative Agent, hereby
accepts such designation, to serve as such Borrower’s contractual representative solely for
purposes of this Section 14.3(C). In this connection, the Administrative Agent shall
maintain at its address referred to in Section 15.1 a copy of each assignment delivered to
and accepted by it pursuant to this Section 14.3 and a register (the “Register”) for the
recordation of the names and addresses of the Lenders and the Commitment of, principal
amount of and interest on the Loans owing to, each Lender from time to time and whether such
Lender is an original Lender or the assignee of another Lender pursuant to an assignment
under this Section 14.3. The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the



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Company and each of its Subsidiaries, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by any Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior notice.




     (D) Designated Lender.




     (i) Subject to the terms and conditions set forth in this Section 14.3(D), any
Lender may from time to time elect to designate an Eligible Designee to provide all or
any part of the Loans to be made by such Lender pursuant to this Agreement; provided
that the designation of an Eligible Designee by any Lender for purposes of this Section
14.3(D) shall be subject to the approval of the Administrative Agent (which consent
shall not be unreasonably withheld or delayed). Upon the execution by the parties to
each such designation of an agreement in the form of Exhibit K hereto (a “Designation
Agreement”) and the acceptance thereof by the Administrative Agent, the Eligible
Designee shall become a Designated Lender for purposes of this Agreement. The
Designating Lender shall thereafter have the right to permit the Designated Lender to
provide all or a portion of the Loans to be made by the Designating Lender pursuant to
the terms of this Agreement and the making of the Loans or portion thereof shall satisfy
the obligations of the Designating Lender to the same extent, and as if, such Loan was
made by the Designating Lender. As to any Loan made by it, each Designated Lender shall
have all the rights a Lender making such Loan would have under this Agreement and
otherwise; provided, (x) that all voting rights under this Agreement shall be exercised
solely by the Designating Lender, (y) each Designating Lender shall remain solely
responsible to the other parties hereto for its obligations under this Agreement,
including the obligations of a Lender in respect of Loans made by its Designated Lender
and (z) no Designated Lender shall be entitled to reimbursement under Article IV hereof
for any amount which would exceed the amount that would have been payable by the
Borrowers to the Lender from which the Designated Lender obtained any interests
hereunder. No additional Notes shall be required with respect to Loans provided by a
Designated Lender; provided, however, to the extent any Designated Lender shall advance
funds, the Designating Lender shall be deemed to hold the Notes in its possession as an
agent for such Designated Lender to the extent of the Loan funded by such Designated
Lender. Such Designating Lender shall act as administrative agent for its Designated
Lender and give and receive notices and communications hereunder. Any payments for the
account of any Designated Lender shall be paid to its Designating Lender as
administrative agent for such Designated Lender and neither the Borrowers nor the
Administrative Agent shall be responsible for any Designating Lender’s application of
such payments. In addition, any Designated Lender may (1) with notice to, but without
the consent of the Borrowers or the Administrative Agent, assign all or portions of its
interests in any Loans to its Designating Lender or to any financial institution
consented to by the Administrative Agent providing liquidity and/or credit facilities to
or for the account of such Designated Lender and (2) subject to advising any such Person
that such information is to be treated as confidential in accordance with such Person’s
customary practices for dealing with confidential,



108









 






non-public information, disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider of any
guarantee, surety or credit or liquidity enhancement to such Designated Lender.




     (ii) Each party to this Agreement hereby agrees that it shall not institute
against, or join any other Person in instituting against any Designated Lender any
bankruptcy, reorganization, arrangements, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy or similar law for one year and a day
after the payment in full of all outstanding senior indebtedness of any Designated
Lender; provided that the Designating Lender for each Designated Lender hereby agrees to
indemnify, save and hold harmless each other party hereto for any loss, cost, damage and
expense arising out of their inability to institute any such proceeding against such
Designated Lender. This Section 14.3(D)(ii) shall survive the termination of this
Agreement.



          14.4. Confidentiality. Subject to Section 14.5, the Administrative Agent and the Lenders and
their respective representatives, consultants and advisors shall hold all nonpublic information
obtained pursuant to the requirements of this Agreement and identified as such by the Company or
any other Borrower in accordance with such Person’s customary procedures for handling confidential
information of this nature and in accordance with safe and sound commercial lending or investment
practices and in any event may make disclosure reasonably required by a prospective Transferee in
connection with the contemplated participation or assignment or as required or requested by any
Governmental Authority or any securities exchange or similar self-regulatory organization or
representative thereof or pursuant to a regulatory examination or legal process, or to any direct
or indirect contractual counterparty in swap agreements or such contractual counterparty’s
professional advisor, and shall (x) use its commercially reasonable efforts to give prior notice of
any such disclosure to the extent permitted by applicable law, and (y) require any such Transferee
to agree (and require any of its Transferees to agree) to comply with this Section 14.4. In no
event shall the Administrative Agent or any Lender be obligated or required to return any materials
furnished by the Company; provided, however, each prospective Transferee shall be required to agree
that if it does not become a participant or assignee it shall return all materials furnished to it
by or on behalf of the Company in connection with this Agreement.




          14.5. Dissemination of Information. Each Borrower authorizes each Lender to disclose to any
Participant or Purchaser or any other Person acquiring an interest in the Loan Documents by
operation of law (each a “Transferee”) and any prospective Transferee any and all information in
such Lender’s possession concerning the Borrowers and its Subsidiaries; provided that prior to any
such disclosure, such prospective Transferee shall agree to preserve in accordance with Section
14.4 the confidentiality of any confidential information described therein.




ARTICLE XV: NOTICES




          15.1. Giving Notice. Except as otherwise permitted by Section 2.13 with respect to
Borrowing/Election Notices, all notices and other communications provided to any party hereto under
this Agreement or any other Loan Documents shall be in writing or by telex





109









 







or by facsimile and addressed or delivered to such party at its address set forth below its
signature hereto or at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage prepaid, shall be deemed
given three (3) Business Days after mailed; any notice, if transmitted by telex or facsimile, shall
be deemed given when transmitted (answerback confirmed in the case of telexes); or any notice, if
transmitted by courier, one (1) Business Day after deposit with a reputable overnight carrier
service, with all charges paid.




          15.2. Change of Address. The Borrowers, the Administrative Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the other parties
hereto.




ARTICLE XVI: COUNTERPARTS




          This Agreement may be executed in any number of counterparts, all of which taken together
shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart. This Agreement shall be effective when it has been executed by the Company,
the Administrative Agent and the Lenders and each party has notified the Administrative Agent by
facsimile or telephone, that it has taken such action; it being understood and agreed that the
initial extensions of credit hereunder shall be subject to the satisfaction of the conditions
precedent set forth in Section 5.1 hereof.




[Remainder of This Page Intentionally Blank]




110









 








          IN WITNESS WHEREOF, the Borrowers, the Lenders and the Administrative Agent have executed this
Agreement as of the date first above written.




	 	 	 
	 

	 	CHICAGO BRIDGE & IRON COMPANY N.V.,
	 

	 	as the Company
	 

	 	By: CHICAGO BRIDGE & IRON COMPANY B.V.
	 

	 	Its: Managing Director






	 	 	 	 	 
	 	 	 
	 	By:  	                     /s/ Philip K. Asherman
 	 
	 	 	Name:  	Philip K. Asherman 	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 
	 

	 	Address:
	 

	 	c/o Chicago Bridge & Iron Company (Delaware)
	 

	 	One CB&I Plaza
	 

	 	2103 Research Forest Drive
	 

	 	The Woodlands, TX 77380
	 

	 	Attention: Ronald Ballschmiede, Managing
	 

	 	Director & Chief Financial Officer
	 

	 	Telephone No.: (832) 513-1000
	 

	 	Facsimile No.: (832) 513-1092







Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006





 










 





	 	 	 	 	 	 	 
	 	 	CB&I CONSTRUCTORS, INC., as a Subsidiary
Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Luciano Reyes
 

Luciano Reyes
	 	 
	 

	 	Title:
	 	Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	Address:

c/o Chicago Bridge & Iron Company (Delaware)

One CB&I Plaza

2103 Research Forest Drive

The Woodlands, TX 77380

Attention: Ronald Ballschmiede, Managing Director &
Chief Financial Officer

Telephone No.: (832) 513-1000

Facsimile No.: (832) 513-1092	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	CBI SERVICES, INC., as a Subsidiary Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Terrence G. Browne
 

Terrence G. Browne
	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	Address:

c/o Chicago Bridge & Iron Company (Delaware)

One CB&I Plaza

2103 Research Forest Drive

The Woodlands, TX 77380

Attention: Ronald Ballschmiede, Managing Director &
Chief Financial Officer

Telephone No.: (832) 513-1000

Facsimile No.: (832) 513-1092	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	CHICAGO BRIDGE & IRON COMPANY (DELAWARE), as a
Subsidiary Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Luciano Reyes
 

Luciano Reyes
	 	 
	 

	 	Title:
	 	Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	Address:

c/o Chicago Bridge & Iron Company (Delaware)

One CB&I Plaza

2103 Research Forest Drive

The Woodlands, TX 77380

Attention: Ronald Ballschmiede, Managing Director &
Chief Financial Officer

Telephone No.: (832) 513-1000

Facsimile No.: (832) 513-1092	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	CB&I TYLER COMPANY, as a Subsidiary Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Luciano Reyes
 

Luciano Reyes
	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	Address:

c/o Chicago Bridge & Iron Company (Delaware)

One CB&I Plaza

2103 Research Forest Drive

The Woodlands, TX 77380

Attention: Ronald Ballschmiede, Managing Director &
Chief Financial Officer

Telephone No.: (832) 513-1000

Facsimile No.: (832) 513-1092	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	CHICAGO BRIDGE & IRON COMPANY B.V., as a Subsidiary
Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Philip K. Asherman
 

Philip K. Asherman
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	Address:

c/o Chicago Bridge & Iron Company (Delaware)

One CB&I Plaza

2103 Research Forest Drive

The Woodlands, TX 77380

Attention: Ronald Ballschmiede, Managing Director &
Chief Financial Officer

Telephone No.: (832) 513-1000

Facsimile No.: (832) 513-1092	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as
Administrative Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ H. David Jones
 

H. David Jones
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

707 Travis St.

8-CBBN-78

Houston, TX 77002

Attention: H. David Jones

Telephone: (713)216-4940

Facsimile: (713)216-6710	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





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

	 	By:

Name:
	 	/s/ Robert W. Troutman
 

Robert W. Troutman
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

Bank of America, N.A.

2001 Clayton Road

CA4-702-02-05

Concord, CA 94520-2405

Attention: Tina Obcena

Telephone: (925)675-8768

Facsimile: (888)969-9246	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

Bank of America, N.A.

Building B

2001 Clayton Road

Concord, CA 94520-2405	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF MONTREAL, as
a Documentation Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ John Armstrong
 

John Armstrong
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

111 W. Monroe Street

10th Floor West

Chicago, Illinois 60603

Attention: Shahrokh Z. Shah

Telephone: (312) 293-8353

Facsimile: (312) 293-5852	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

111 W. Monroe Street

10th Floor West

Chicago, Illinois 60603	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A., as a Documentation Agent
and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Thomas F. Caver, III
 

Thomas F. Caver, III
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

North Houston Commercial Banking Group

21 Waterway Ave, Suite 600

The Woodlands, TX 77380

Attention: Thomas F. Caver, III

Telephone: (281)362-6640

Facsimile: (281) 362-6611	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

North Houston Commercial Banking Group

21 Waterway Ave., Suite 600

The Woodlands, TX 77380	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	BNP PARIBAS, as a Documentation Agent and as a
Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Pierre-Nicholas Rogers
 

Pierre-Nicholas Rogers
	 	  
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jamie Dillon	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Jamie Dillon	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

BNP Paribas

919 3rd Avenue

New York, NY 10022

Attention: Thomas Kunz

Telephone: (212)471-6626

Facsimile: (212)841-2682	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

BNP Paribas

919 3rd Avenue

New York, NY 10022

Attention: Thomas Kunz

Telephone: (212)471-6626

Facsimile: (212)841-2682	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	THE ROYAL BANK OF SCOTLAND plc, as a
Documentation Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ John Preece
 

John Preece
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

101 Park Avenue, 6th Floor

New York, NY 10178

Attention: Julie Strelchenko

Telephone: (212)401-1404

Facsimile: (212)401-1494	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

Same As Above	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	FORTIS BANK – CAYMAN ISLAND BRANCH, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Catherine Gilbert
 

Catherine Gilbert
	 	  
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Gary O’Brien	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Gary O’Brien	 	 
	 

	 	Title:
	 	Asst. Mgr. Trade Services	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

301 Tresser Blvd.,
9th Floor

Stamford, CT 06902

Attention: Steven B. Boyd

Telephone: (212)340-5322

Facsimile: (212)340-5320	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Christopher C. Motley
 

Christopher C. Motley
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

38 Fountain Square Plaza

MD 109055

Cincinnati, OH 45202

Attention: Megan Schloss

Telephone: (513)534-6293

Facsimile: (513)534-5947	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

Same As Above	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	CALYON NEW YORK BRANCH, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Darrell Stanley
 

Darrell Stanley
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael Willis	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Michael Willis	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

Calyon New York Branch

1301 Avenue of the Americas

New York, NY 10019

Attn: David Gener, Client Banking Services

Telephone: (212)261-7741

Facsimile: (917)849-5440	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

Calyon New York Branch

1301 Avenue of the Americas

New York, NY 10019	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	UBS LOAN FINANCE LLC, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Richard L. Tavrow
 



	 

	 	Name:
	 	Richard L. Tavrow	 	 
	 

	 	Title:
	 	Director	 	 
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Irja R. Otsa	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Irja R. Otsa	 	 
	 

	 	Title:
	 	Associate Director	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

UBS Loan Finance LLC

677 Washington Boulevard

Stamford, Connecticut 06901

Attention: Marie Haddad

Telephone: (203)719-5609

Facsimile: (203)719-3888	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

UBS Loan Finance LLC

677 Washington Boulevard

Stamford, Connecticut 06901	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ W. J. Browne
 

W. J. Browne
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

Same As Below
	 	 
	 
	 	 	 	 	 	 
	 	 	Attention: Marc Van Horn

Telephone: (412)762-6361

Facsimile: (412)705-3232	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

PNC Bank, National Association

One PNC Plaza

249 Fifth Avenue

Pittsburgh, PA 15212	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	CREDIT SUISSE, Cayman Islands Branch
(f.k.a. CREDIT SUISSE FIRST BOSTON,
Cayman Islands Branch), as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Thomas Cantello
 

Thomas Cantello
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Laurence Lapeyre	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Laurence Lapeyre	 	 
	 

	 	Title:
	 	Associate	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

One Madison Avenue

New York, NY 10010

Attention: Ed Markowski

Telephone: (212)538-3380

Facsimile: (212)538-6851	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

Credit Suisse

Eleven Madison Avenue

New York, NY 10010	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	REGIONS BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Keith Page
 

Keith Page
	 	 
	 

	 	Title:
	 	Sr. Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

Regions Bank

417 20th Street North

Birmingham, Alabama 35203

Attention: Robin Woodard

Telephone: (205)326-7413

Facsimile: (205)801-5250	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

5005 Woodway, Suite 110

Houston, Texas 77056

Keith Page (713)426-7158	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	ALLIED IRISH BANK, PLC, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Margaret Brennan
 

Margaret Brennan
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Gregory J. Wiske	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Gregory J. Wiske	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

405 Park Avenue

New York, NY 10022

Attention: Mags Brennan

Telephone: (212)515-6761

Facsimile: (212)339-8325	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	THE NORTHERN TRUST COMPANY, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Cory Schuster
 

Cory Schuster
	 	 
	 

	 	Title:
	 	Second Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

The Northern Trust

801 S. Canal St.

Chicago, Illinois 60607

Attention: Joy Johnson

Telephone: (312)557-8248

Facsimile: (312)630-1566	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	STANDARD CHARTERED BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Reddington
 
	 	 
	 

	 	Name:
	 	Robert Reddington	 	 
	 

	 	Title:
	 	Associate	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Richard Van de Berghe	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Richard Van de Berghe	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

One Madison Avenue

New York, NY 10010-3603

Attention: Vicky Faltine

Telecopier: (212)667-0568

Electronic Mail:

victoria.faltine@us.standardchartered.com	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

Standard Chartered Bank – NY Branch

One Madison Avenue

New York, NY 10010-3603	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	ABU DHABI INTERNATIONAL BANK INC. as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ David J. Young
 

David J. Young
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Nagy S. Kolta	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Nagy S. Kolta	 	 
	 

	 	Title:
	 	Executive Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

1020 19th Street, NW Suite 500

Washington, DC 20036

Attention: David Young

Telephone: (202)842-7956

Facsimile: (202)842-7955	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

Abu Dhabi International Bank

1020 19th Street, NW Suite 500

Washington, DC 20036	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	AMEGY BANK NATIONAL ASSOCIATION as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Jill S. Vaughan
 

Jill S. Vaughan
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

10101 Grogans Mill Road

The Woodlands, TX 77380

Attention: Jill Vaughan

Telephone: (281)320-6909

Facsimile: (281)320-6918	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

1801 Main Street

Houston, TX 77002

Attn: Dana Chargois	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF NEW YORK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Burke Kennedy
 

Burke Kennedy
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

The Bank of New York

One Wall Street; 21 Floor

New York, NY 10286

Attention: Kevin Higgins, VP

Telephone: (212)635-7878

Facsimile: (212)635-7978	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

The Bank of New York

One Wall Street, 21 Floor

New York, NY 10286	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Debra Halling
 

Debra Halling
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

5718 Westheimer, Suite 600

Houston, TX 77057

Attention: Debra Halling

Telephone: (713)435-5024

Facsimile: (713)706-5499	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

5718 Westheimer, Suite 600

Houston, TX 77057	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	WOODFOREST NATIONAL BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Dan Hauser
 

Dan Hauser
	 	 
	 

	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

dhauser@woodforest.com

Attention: Dan Hauser

Telephone: (832)375-2509

Facsimile: (832)375-3509	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

Woodforest National Bank

1330 Lake Robbins Dr., Suite 100

The Woodlands, Texas 77380	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	ARAB BANKING CORPORATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert Ivosevich
 

Robert Ivosevich
	 	 
	 

	 	Title:
	 	General Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Rami El-Ritai	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Rami El-Ritai	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

Arab Banking Corporation

600 3rd Avenue

NY, NY 10016

Attention: Sunil Naik

Telephone: (212)583-4745

Facsimile: (212)583-0932
	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF TEXAS, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Marian Livingston
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Marian Livingston	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

5 Houston Center

1401 McKinney, Suite 1650

Houston, Texas 77010

Attention: Marian Livingston

Telephone: (713)289-5843

Facsimile: (713)289-5825	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

5 Houston Center

1401 McKinney, Suite 1650

Houston, Texas 77010	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006




 









 





	 	 	 	 	 	 	 
	 	 	COMPASS BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Tom Brosig
 

Tom Brosig
	 	 
	 

	 	Title:
	 	Senior Vice President Corporate Banking	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:

Compass Bank

24 Greenway Plaza, Suite 1403

Houston, TX 77046

Attention: Tom Brosig

Telephone: (713)968-8264

Facsimile: (713)968-8211	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Installation Address:

Compass Bank

24 Greenway Plaza, Suite 1403

Houston, TX 77046	 	 






Signature Page to Second Amended and Restated Credit Agreement

Dated October, 2006