exv10w1



 





EXHIBIT
10.1

[CONFORMED COPY]


 



CREDIT AGREEMENT




among




AMETEK, INC.,




VARIOUS DESIGNATED SUBSIDIARY BORROWERS,




VARIOUS LENDING INSTITUTIONS,




BANK OF AMERICA, N.A.,

PNC BANK NATIONAL ASSOCIATION,

SUNTRUST BANK AND

WACHOVIA BANK, N.A.,

AS SYNDICATION AGENTS,




and




JPMORGAN CHASE BANK, N.A.,

AS ADMINISTRATIVE AGENT




 






Dated as of September 17, 2001,




amended and restated as of June 17, 2005,




and further amended and restated as of October 6, 2006




 






$300,000,000




J.P. MORGAN SECURITIES INC.,




AS LEAD ARRANGER AND BOOKRUNNER



 


 









 





          CREDIT AGREEMENT, dated as of September 17, 2001, amended and restated as of June 17, 2005 and
further amended and restated as of October 6, 2006, among AMETEK, INC., a Delaware corporation (the
“Company”), the Designated Subsidiary Borrowers (as hereinafter defined) from time to time
party hereto, the lending institutions listed from time to time on Schedule I hereto (each,
a “Bank” and, collectively, the “Banks”), Bank of America, N.A., PNC Bank, National
Association, SunTrust Bank and Wachovia Bank, N.A., as syndication agents (each, a “Syndication
Agent” and, collectively, the “Syndication Agents”), and JPMorgan Chase Bank, N.A.
(“JPMorgan Chase”) (formerly known as The Chase Manhattan Bank), as administrative agent
(in such capacity, and together with its successors in such capacity, the “Administrative
Agent”) for the Banks. Unless otherwise defined herein, all capitalized terms used herein and
defined in Section 10 are used herein as so defined.




W I T N E S S E T H :




          WHEREAS, the Company, the Existing Banks and JPMorgan Chase, as Administrative Agent, are
parties to a Credit Agreement, dated as of September 17, 2001 and amended and restated as of June
17, 2005 (as the same has been amended, modified or supplemented to, but not including, the
Restatement Effective Date, the “Existing Credit Agreement”); and




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




          NOW, THEREFORE, the Company, the Designated Subsidiary Borrowers from time to time party
hereto, the Banks and the Administrative Agent agree that, on the Restatement Effective Date, the
Existing Credit Agreement shall be and is hereby amended and restated in its entirety as follows:




          SECTION 1. Amount and Terms of Credit.




               1.01 Commitments. (a) Subject to and upon the terms and conditions herein set
forth, each Bank severally agrees, at any time and from time to time on and after the Restatement
Effective Date and prior to the Final Maturity Date, to make a loan or loans (each, a
“Revolving Loan” and, collectively, the “Revolving Loans”) to any Borrower
requesting a Revolving Loan pursuant to Section 1.03, which Revolving Loans (i) except as
hereinafter provided, may, at the option of such Borrower, be incurred and maintained as, and/or
converted into, Base Rate Loans or Eurodollar Loans, provided that all Revolving Loans made
by all Banks pursuant to the same Borrowing shall, unless otherwise specifically provided herein,
consist entirely of Revolving Loans of the same Type, (ii) may be repaid and reborrowed in
accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount for any
Bank at any time outstanding the amount which, when combined with such Bank’s Percentage of the sum
of (A) the Letter of Credit Outstandings at such time plus (B) the aggregate outstanding
principal amount of all Competitive Bid Loans then outstanding, equals the Commitment of such Bank
at such time to
all Borrowers, (iv) shall not exceed in aggregate principal amount for all Banks at any time
outstanding the amount which, when added to the sum of (A) the aggregate amount of



 









 







Letter of Credit
Outstandings at such time plus (B) the aggregate outstanding principal amount of all
Competitive Bid Loans then outstanding, equals the Total Commitment at such time and (v) shall be
denominated in an Approved Currency, provided that the aggregate outstanding principal
amount of all Revolving Loans denominated in a Primary Alternate Currency, when added to the
aggregate outstanding principal amount of all Competitive Bid Loans denominated in an Approved
Alternate Currency, shall not exceed the Alternate Currency Sublimit at any time.



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




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



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



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promptly give each Bank written notice (or
telephonic notice promptly confirmed in writing) of each proposed Borrowing of Revolving Loans, of
the proportionate share thereof of each Bank and of the other matters covered by the Notice of
Borrowing.



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




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



          (b) Each Bidder Bank shall, if, in its sole discretion, it elects to do so, irrevocably offer
to make one or more Competitive Bid Loans to such Borrower as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest specified by such Bidder Bank in its
sole discretion and determined by such Bidder Bank independently of each other Bidder Bank, by
notifying the Administrative Agent (which shall give prompt notice thereof to such Borrower) before
10:00 A.M. (New York time) on the date (the “Reply Date”) which is (x) in the case of an
Absolute Rate Borrowing, the date of such proposed Competitive Bid Borrowing and (y) in the case of
a Spread Borrowing, four Business Days before the date of such proposed Competitive Bid Borrowing,
of the minimum amount and maximum amount of each Competitive Bid Loan

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which such Bidder Bank would
be willing to make as part of such proposed Competitive Bid Borrowing (which amounts may, subject
to the proviso to the first sentence of Section 1.01(b), exceed such Bidder Bank’s Commitment), the
rate or rates of interest therefor and such Bidder Bank’s lending office with respect to such
Competitive Bid Loan; provided that if the Administrative Agent in its capacity as a Bidder
Bank shall, in its sole discretion, elect to make any such offer, it shall notify such Borrower of
such offer before 9:45 A.M. (New York time) on the Reply Date. If any Bidder Bank shall elect not
to make such an offer, such Bidder Bank shall so notify the Administrative Agent, before 10:00 A.M.
(New York time) on the Reply Date, and such Bidder Bank shall not be obligated to, and shall not,
make any Competitive Bid Loan as part of such Competitive Bid Borrowing; provided that the
failure by any Bidder Bank to give such notice shall not cause such Bidder Bank to be obligated to
make any Competitive Bid Loan as part of such proposed Competitive Bid Borrowing.




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





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




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



          (d) If such Borrower notifies the Administrative Agent that such Competitive Bid Borrowing is
cancelled pursuant to clause (c)(i) above, the Administrative Agent shall give

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prompt notice
thereof to the Bidder Banks and such Competitive Bid Borrowing shall not be made.




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




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



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equal to (x) if to be paid by such Bank, the customary
rate set by the Administrative Agent for the correction of errors among banks for each day during
the period consisting of the first three Business Days following such date of availability and
thereafter at the Base Rate or (y) if to be paid by such Borrower, the then applicable rate of
interest, calculated in accordance with Section 1.09 for the respective Loans.



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




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



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




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




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



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converted into Base Rate Loans. Each such conversion shall be effected by the applicable
Borrower by giving the Administrative Agent at its Notice Office, prior to 12:00 Noon (New York
time), at least three Business Days or, in the case of a conversion into Base Rate Loans, prior to
10:00 A.M. (New York time) on the same Business Day, prior written notice (or telephonic notice
promptly confirmed in writing) (each, a “Notice of Conversion”) specifying the Revolving
Loans to be so converted, the Type of Revolving Loans to be converted into and, if to be converted
into a Borrowing of Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt notice of any such proposed conversion affecting
any of its Revolving Loans.



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



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



          (b) The unpaid principal amount of each Eurodollar Loan shall bear interest from and including
the date of the Borrowing thereof until the earlier of (i) maturity (whether by acceleration or
otherwise) and (ii) conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
1.07, 1.10 or 1.11(b), as applicable, at a rate per annum which shall, during each Interest Period
applicable thereto, be equal to the sum of the relevant LIBOR for such Interest Period, plus the
Applicable Margin, as in effect from time to time.




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




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




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




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on any
prepayment (on the amount prepaid), at maturity (whether by acceleration or otherwise) and, after
such maturity, on demand.




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




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




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




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




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




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




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




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




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



          If upon the expiration of any Interest Period, the applicable Borrower has failed to elect a
new Interest Period to be applicable to the respective Borrowing of Eurodollar Loans as

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provided
above, or is unable to elect a new Interest Period as a result of clause (v) above, such Borrower
shall be deemed to have elected to convert such Borrowing into a Borrowing of Base Rate Loans
effective as of the expiration date of such current Interest Period, provided that if such
Eurodollar Loans are denominated in a Primary Alternate Currency then such Eurodollar Loans shall
not convert to Base Rate Loans but shall instead be prepaid by such Borrower on the last day of
such Interest Period.




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




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




     (ii) at any time, that such Bank shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any Eurodollar Loans or Competitive
Bid Loans (other than any increased cost or reduction in the amount received or receivable
resulting from the imposition of or a change in the rate of taxes or similar charges)
because of (x) any change since the date of this Agreement (or, in the case of any such cost
or reduction with respect to any Competitive Bid Loan, since the making of such Competitive
Bid Loan) in any applicable law, governmental rule, regulation, guideline, order or request
(whether or not having the force of law) or in the interpretation or administration thereof
and including the introduction of any new law or governmental rule, regulation, guideline,
order or request (such as, for example, but not limited to, a change in official reserve
requirements, but, in all events, excluding reserves
referred to in Section 1.11(d)) and/or (y) other circumstances adversely affecting the
relevant interbank market or the position of such Bank in such market; or




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




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


then, and in any such event, such Bank (or the Administrative Agent in the case of clause (i)
above) shall promptly give notice (by telephone confirmed in writing) to the applicable


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




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




          (c) If any Bank determines at any time that the adoption or effectiveness after the
Restatement Effective Date of any applicable law, rule or regulation regarding capital adequacy, or
any change therein after the Restatement Effective Date, or any change after the Restatement
Effective Date in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or administration thereof, or

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actual compliance by such Bank with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable agency, has or would
have the effect of increasing the costs to such Bank to a level above that, or reducing the rate of
return on such Bank’s capital or assets as a consequence of its commitments or obligations
hereunder to a level below that, which such Bank could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Bank’s policies with respect to
capital adequacy), then from time to time, upon written demand by such Bank (with a copy to the
Administrative Agent), the Company, subject to the provisions of Section 1.15 (to the extent
applicable), agrees to pay to such Bank such additional amount or amounts as will compensate such
Bank for such increased costs or reduction. Each Bank, upon determining that any additional
amounts will be payable pursuant to this Section 1.11(c), will give prompt written notice thereof
to the Company, which notice shall set forth the basis of the calculation of such additional
amounts, although the failure to give any such notice shall not release or diminish the Company’s
obligations to pay additional amounts pursuant to this Section 1.11(c) upon receipt of such notice.




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




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




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




     (ii) if any repayment or conversion of any of its Eurodollar Loans or any repayment of
Competitive Bid Loans, in each case incurred by such Borrower, occurs on a date which is not
the last day of an Interest Period applicable thereto;



-11-









 






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




     (iv) as a consequence of (x) any other default by such Borrower to repay its Eurodollar
Loans or Competitive Bid Loans when required by the terms of this Agreement or (y) an
election made pursuant to Section 1.11(b).



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




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



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



-12-









 







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



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



               1.16 Additional Commitments. (a) The Company shall have the right at any time and
from time to time after the Restatement Effective Date and prior to the Final Maturity Date to
request (so long as no Default or Event of Default is then in existence or would



-13-









 







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



          (b) At the time of any provision of Additional Commitments pursuant to this Section 1.16, (i)
the Company, the Administrative Agent and each such Additional Commitment Bank or other bank or
financial institution which agrees to provide an Additional Commitment (each, an “Additional
Bank”) shall execute and deliver to the Administrative Agent an Additional Commitment Agreement
substantially in the form of Exhibit E, subject to such modifications in form and substance
reasonably satisfactory to the Administrative Agent as may be necessary or appropriate (with the
effectiveness of such Additional Bank’s Additional Commitment to occur upon delivery of such
Additional Commitment Agreement to the Administrative Agent, the payment of any fees required in
connection therewith and the satis-

-14-









 








faction of the other conditions in this Section 1.16 to the
reasonable satisfaction of the Administrative Agent), (ii) if such Additional Bank is not a United
States person (as such term is defined in Section 7701(a)(3) of the Code) for U.S. Federal income
tax purposes, such Additional Bank shall provide to the Company the appropriate Internal Revenue
Service documentation described in Section 4.04, (iii) the Company and the Designated Subsidiary
Borrowers shall deliver to the Administrative Agent resolutions authorizing the incurrence of the
Obligations to be incurred pursuant to each Additional Commitment, together with evidence of good
standing of the Company and each Designated Subsidiary Borrower (if requested) and (iv) the Company
and each Designated Subsidiary Borrower shall deliver to the Administrative Agent an opinion, in
form and substance reasonably satisfactory to the Administrative Agent, from counsel to each of the
Company and each Designated Subsidiary Borrower reasonably satisfactory to the Administrative Agent
and dated such date, covering such matters similar to those set forth in the opinions of counsel
delivered to the Banks on the Restatement Effective Date pursuant to Section 5.01(d) and such other
matters as the Administrative Agent may reasonably request. The Administrative Agent shall
promptly notify each Additional Commitment Bank as to the occurrence of each Additional Commitment
Date, and (x) on each such date, the Total Commitment under, and for all purposes of, this
Agreement shall be increased by the aggregate amount of such Additional Commitments and (y) on each
such date, Schedule I shall be deemed modified to reflect the revised Additional
Commitments of the affected Additional Commitment Banks. Notwithstanding anything to the contrary
contained in this Agreement, in connection with any increase in the Total Commitment pursuant to
this Section 1.16, the Company and each Designated Subsidiary Borrower shall, in coordination with
the Administrative Agent and the Banks, repay outstanding Revolving Loans of certain Banks
and, if necessary, incur additional Revolving Loans from other Banks, in each case so that
such Banks participate in each Borrowing of such Revolving Loans pro rata on the
basis of their Commitments (after giving effect to any increase thereof). It is hereby agreed that
any breakage costs of the type described in Section 1.12 incurred by the Banks in connection with
the repayment of Revolving Loans contemplated by this Section 1.16 shall be for the account of the
Company or the applicable Designated Subsidiary Borrower, as the case may be.




               1.17 Designated Subsidiary Borrowers. As of the Restatement Effective Date, there are
no Designated Subsidiary Borrowers. From and after the Restatement Effective Date, the Company may
from time to time designate one or more Persons as a Designated Subsidiary Borrower, subject to the
following terms and conditions:



          (a) each such Person shall be a Wholly-Owned Subsidiary of the Company;




          (b) each such Designated Subsidiary Borrower shall enter into an appropriately completed DSB
Assumption Agreement in the form of Exhibit J hereto on or prior to the date of designation
hereof;




          (c) on or prior to the date of designation, the Administrative Agent shall have received from
such Person a certificate, signed by an Authorized Officer of such Person in the form of
Exhibit C with appropriate insertions or deletions, together with (x) copies of its
certificate of incorporation, by-laws or other organizational documents and (y) the resolutions of
the board of directors (or similar governing body) of such Person relating to the Credit Documents
which shall be reasonably satisfactory to the Administrative Agent; and





-15-









 








          (d) on or prior to the date of designation, the Administrative Agent shall have received an
opinion, addressed to the Administrative Agent and each of the Lenders and dated the date of
designation, which opinion shall be in form and substance reasonably satisfactory to the
Administrative Agent, from counsel to the respective Designated Subsidiary Borrower reasonably
satisfactory to the Administrative Agent, covering such of the matters set forth in the opinions of
counsel delivered to the Administrative Agent on the Restatement Effective Date pursuant to Section
5.01(d), as may be reasonably requested by the Administrative Agent, and such other matters
incident to the transactions contemplated thereby as the Administrative Agent may reasonably
request.




               1.18 Removal of Designated Subsidiary Borrowers. The Company may from time to time
after the Restatement Effective Date, by written notice to the Administrative Agent (which notice
the Administrative Agent shall promptly forward to each Bank), remove one or more Designated
Subsidiary Borrowers, provided that on the date of removal (i) no Letters of Credit shall be
outstanding for the account of such Designated Subsidiary Borrower; (ii) no Loans shall be
outstanding for the account of such Designated Subsidiary Borrower; (iii) all fees, interest or
other amounts payable under this Agreement or the other Credit Documents by such Designated
Subsidiary Borrower shall have been paid in full and (iv) no other Obligations of such Designated
Subsidiary Borrower shall remain outstanding.



          SECTION 2. Letters of Credit.




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



-16-









 







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



          (b) Notwithstanding the foregoing,





     (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the
Letter of Credit Outstandings at such time, would exceed either (x) $50,000,000 or




     (y) when added to the aggregate principal amount of all Revolving Loans and all
Competitive Bid Loans then outstanding, the Total Commitment at such time;




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




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




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




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




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




     (vii) no Letter of Credit shall be issued by any Letter of Credit Issuer after it has
received a written notice from any Borrower, the Administrative Agent or the Required Banks
stating that a Default or Event of Default has occurred and is continuing until such time as
such Letter of Credit Issuer shall have received a written notice of (x) rescission



-17-









 







of such
notice from the party or parties originally delivering such notice or (y) the waiver of such
Default or Event of Default by the Required Banks; and




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



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




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



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




          (c) In the event that a Letter of Credit Issuer makes any payment under any Letter of Credit
issued by it and the applicable Borrower shall not have reimbursed such amount in full

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




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




          (e) The obligations of the Participating Banks to make payments to the Administrative Agent
for the account of any Letter of Credit Issuer with respect to Letters of Credit shall be
irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or
exception whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the following
circumstances:




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




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




     (iii) any draft, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;




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




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



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



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




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



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



          (b) Each Borrower’s obligation under this Section 2.04 to reimburse each respective Letter of
Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which any Borrower, any of its Subsidiaries or any Permitted
Joint Venture may have or have had against such Letter of Credit
Issuer, the Administrative Agent, any Syndication Agent or any Bank, including, without
limitation, any defense based upon the failure of any drawing under a Letter of Credit to conform
to the terms of the Letter of Credit or any non-application or misapplication by the beneficiary of
the proceeds of such drawing or any amendment or waiver or any consent to or departure from a
Letter of Credit or any other circumstance whatsoever in making or failing to make payment under a
Letter of Credit; provided, however, that no Borrower shall be obligated to
reimburse a Letter of Credit Issuer for any wrongful payment made by such Letter of Credit Issuer
under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of such Letter of Credit Issuer.




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



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



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



          SECTION 3. Fees; Commitments.




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



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




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




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

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




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




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




               3.02 Voluntary Reduction of Commitments. Upon at least three Business Days’ prior
written notice (or telephonic notice confirmed in writing) to the Administrative Agent at its
Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Banks),
the Company shall have the right, without premium or penalty, to terminate, in part or in whole,
the Total Unutilized Commitment; provided that (x) any such termination shall apply to
proportionately and permanently reduce the Commitment of each of the Banks, and (y) any partial
reduction pursuant to this Section 3.02 shall be in the amount of at least $5,000,000.



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



          SECTION 4. Payments.




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



-23-









 







prepayment in respect of any Revolving Loans made pursuant to a Borrowing shall be
applied pro rata among such Revolving Loans; and (iv) Eurodollar Loans may be
designated for prepayment pursuant to this Section 4.01 only on the last day of the Interest Period
applicable thereto.



               4.02 Mandatory Prepayments.



          (A) Requirements:




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




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




          (iii) For purposes of this Section 4.02(A)(a), (x) the outstanding principal amount of
Revolving Loans and Competitive Bid Loans and (y) the aggregate Stated Amount of outstanding
Letters of Credit and the aggregate amount of Unpaid Drawings in respect thereof, in each case to
the extent such Revolving Loans, Competitive Bid Loans or Letters of Credit are denominated in an
Approved Alternate Currency, will be measured on a Dollar-equivalent basis in accordance with the
terms of Sections 12.07(c) and (d). The Borrowers agree that mandatory

-24-









 








prepayments may be required
from time to time under this Section 4.02(A)(a) pursuant to the preceding sentence as a result of
fluctuations in the exchange rate for any Approved Alternate Currency.




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




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




               4.03 Method and Place of Payment. Except as otherwise specifically provided herein,
all payments under this Agreement shall be made to the Administrative Agent for the ratable account
of the Banks entitled thereto, not later than 1:00 P.M. (New York time) on the date when due and
shall be made in immediately available funds and in lawful money of the United States of America at
the Payment Office. Any payments under this Agreement which are made later than 1:00 P.M. (New
York time) shall be deemed to have been made on the next



-25-









 







succeeding Business Day. Whenever any
payment to be made hereunder shall be stated to be due on a day which is not a Business Day, the
due date thereof shall be extended to the next
succeeding Business Day and,
with respect to payments of principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension.



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



          (b) Each Bank that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver to the Company and
the Administrative Agent on or prior to the Restatement Effective Date, or in the case of a Bank
that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or
12.04 (unless the respective Bank was already a Bank hereunder immediately prior to such assignment
or transfer), on the date of such assignment or transfer to such Bank, (i) two accurate and
complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such
Bank’s entitlement as of such date to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement

-26-









 








and under any Note, or (ii) if the Bank is not
a “bank” within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or
Form W-8BEN (with respect to a complete exemption under an income tax treaty) pursuant to clause
(i) above, (x) a certificate substantially in the form of Exhibit I (any such certificate,
a “Section 4.04(b)(ii) Certificate”) and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest
exemption)(or successor form) certifying to such Bank’s entitlement to a complete exemption from
United States withholding tax with respect to payments of interest to be made under this Agreement
and under any Note. In addition, each Bank agrees that from time to time after the Restatement
Effective Date, when a lapse in time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect, it will deliver to the Company and the
Administrative Agent two new accurate and complete original signed copies of Internal Revenue
Service Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax treaty), or Form
W-8BEN (with respect to the portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as
the case may be, and such other forms as may be required in order to confirm or establish the
entitlement of such Bank to a continued exemption from or reduction in United States withholding
tax with respect to payments under this Agreement and any Note, or it shall immediately notify the
Company and the Administrative Agent of its inability to deliver any such Form or Certificate, in
which case such Bank shall not be required to deliver any such Form or Certificate pursuant to this
Section 4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a), but
subject to Section 12.04(b) and the immediately succeeding sentence, (x) the Borrowers shall be
entitled, to the extent they are required to do so by law, to deduct or withhold income or similar
taxes imposed by the United States (or any political subdivision or taxing authority thereof or
therein) from interest, Fees or other amounts payable hereunder for the account of any Bank which
is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S.
Federal income tax purposes to the extent that such Bank has not provided to the Company U.S.
Internal Revenue Service Forms that establish a complete exemption from such deduction or
withholding and (y) the Borrowers shall not be obligated pursuant to Section 4.04(a) hereof to
gross-up payments to be made to a Bank in respect of income or similar taxes imposed by the United
States if (I) such Bank has not provided to the Company the Internal Revenue Service Forms required
to be provided to the Company pursuant to this Section 4.04(b) or (II) in the case of a payment,
other than interest, to a Bank described in clause (ii) above, to the extent that such Forms do not
establish a complete exemption from withholding of such taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section 4.04 and except as set
forth in Section 12.04(b), the Company agrees to pay any additional amounts and to indemnify each
Bank in the manner set forth in Section 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any Taxes deducted or withheld by it as
described in the immediately preceding sentence as a result of any changes that are effective after
the Restatement Effective Date in any applicable
 law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting or withholding of
such Taxes.




          SECTION 5. Conditions Precedent.




               5.01 Conditions Precedent to Loans on the Restatement Effective Date. The occurrence of the Restatement Effective Date pursuant to Section 12.10 and the
obligation of each Bank to make Loans to the Borrowers hereunder, and the obligation



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of each Letter
of Credit Issuer to issue Letters of Credit hereunder, in each case on the Restatement Effective
Date, is subject, at the time of such Credit Event, to the satisfaction of the following
conditions:



          (a) Execution of Agreement; Notes. On or prior to the Restatement Effective Date (i)
this Agreement shall have been executed and delivered as provided in Section 12.10 and (ii) there
shall have been delivered to the Administrative Agent for the account of each Bank, if so requested
by such Bank, the appropriate Note executed by the applicable Borrowers, in the amount, maturity
and as otherwise provided herein.




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




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





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



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




          (e) Existing Credit Agreement. On the Restatement Effective Date, (i) the Company
shall have repaid in full all loans outstanding under the Existing Credit Agreement on the
Restatement Effective Date, together with all accrued and unpaid interest, fees and
commitment commission (and any other amounts) owing under the Existing Credit Agreement
through the Restatement Effective Date and (ii) each lender under the Existing Credit Agreement

-28-









 








shall have received payment in full of all amounts then due and owing to it under the Existing
Credit Agreement; provided that all Competitive Bid Loans under and as defined in the
Existing Credit Agreement may remain outstanding.




          (f) Approvals. On the Restatement Effective Date, all necessary governmental and
third party approvals (including, without limitation, the approval of the shareholders of the
Company and its Subsidiaries to the extent required) required in connection with the Transaction
and the other transactions contemplated by this Agreement and the other Credit Documents and
otherwise referred to herein or therein shall have been obtained and remain in effect, and all
applicable waiting periods shall have expired without any action being taken by any competent
authority which restrains, prevents or imposes, in the reasonable judgment of the Required Banks or
the Administrative Agent, materially adverse conditions upon the consummation of the Transaction or
the other transactions contemplated by the respective Credit Documents.




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




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




          (i) Adverse Change. From December 31, 2005 to the Restatement Effective Date,
nothing shall have occurred (and none of the Borrowers, the Required Banks, the Administrative
Agent, any Syndication Agent shall have become aware of any facts or conditions not previously
known) which the Borrowers, the Required Banks or the Administrative Agent shall determine (i) has,
or is reasonably likely to have, a material adverse effect on the rights or remedies of the Banks
or the Administrative Agent, or on the ability of the Borrowers to perform their obligations to the
Banks or the Administrative Agent under this Agreement or any other Credit Document or (ii) has, or
could reasonably be expected to have, a Material Adverse Effect.




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




          (l) Outstanding Indebtedness. On the Restatement Effective Date and after giving
effect to the Transaction, neither the Company nor any of its Subsidiaries shall have any
Indebtedness except for (i) the Loans, (ii) the Permitted Existing Indebtedness and (iii) such
additional Indebtedness permitted by Section 8.03. All of the Permitted Existing Indebtedness
shall remain outstanding after the consummation of the Transaction and the other transactions
contemplated hereby without any default or events of default existing thereunder or arising as a

-29-









 








result of the Transaction and the other transactions contemplated hereby (except to the extent
amended or waived by the parties thereto on terms and conditions satisfactory to the Administrative
Agent and the Required Banks), and there shall not be any amendments or modifications to the
Permitted Existing Indebtedness Agreements other than as requested or approved by the
Administrative Agent and the Required Banks.




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




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




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


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




          SECTION 6. Representations, Warranties and Agreements. In order to induce the Banks
to enter into this Agreement and to make the Loans and participate in Letters of Credit and each
Letter of Credit Issuer to issue Letters of Credit as provided for herein, each Borrower (solely as
to itself and to its Subsidiaries) makes the
following representations and warranties to, and agreements with, the Banks and each Letter of
Credit Issuer, in each case after giving effect to the Transaction, all of which shall survive the
execution and delivery of this
Agreement and the making of the Loans and the issuance of Letters of
Credit (with the occurrence of each Credit Event being deemed to constitute a representation and
warranty that the matters specified in this

-30-









 








Section 6 are true and correct in all material respects
on and as of the date of each Credit Event, except to the extent that any representation or
warranty is expressly made as of a specific date, in which case such representation or warranty
shall be true and correct in all material respects as of such specific date):




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



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



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



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



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



-31-









 





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




               6.06 Governmental Approvals. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with (except (a) as shall have been obtained or
made prior to the Restatement Effective Date, (b) with respect to any Common Stock Repurchase or
Permitted Senior Note Repurchase which shall have been obtained or made, prior to the date of the
consummation of such Common Stock Repurchase or Permitted Senior Note Repurchase and (c) with
respect to any Designated Subsidiary Borrower, which shall have been obtained or made prior to the
date of its designation as a Designated Subsidiary Borrower pursuant to Section 1.17; and in each
case are in full force and effect at such respective time), or exemption by, any foreign or
domestic governmental body or authority, or any subdivision thereof, is required to authorize or is
required in connection with (i) the execution, delivery and performance of any Credit Document or
(ii) the legality, validity, binding effect or enforceability of any Credit Document.



               6.07 Investment Company Act. No Borrower is an “investment company” or a company
“controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940,
as amended.



               6.08 Public Utility Holding Company Act. No Borrower is a “holding company,” or a “subsidiary company” of a “holding company,” or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the
meaning of the Public Utility Holding Company Act of 1935, as amended.



               6.09 True and Complete Disclosure. All factual information (taken as a whole)
heretofore or contemporaneously furnished in writing by or on behalf of the Company or any of its
Subsidiaries to the Administrative Agent or any Bank (including, without limitation, all
information contained in the Credit Documents) for purposes of or in connection with this Agreement
or any transaction contemplated herein is, and all other such factual information (taken as a
whole) hereafter furnished in writing by or on behalf of the Company or any of its Subsidiaries to
any Bank will be, true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any material
fact
necessary to make such information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided. The projections and pro
forma financial information contained in such materials are based on good faith estimates
and assumptions believed by the Company to be reasonable at the time made, it being recognized by
the Banks that such projections as to future events are not to be viewed as facts and accordingly
are not covered by the first sentence of this Section 6.09, and that actual results during the
period or periods covered by any such projections may differ from the projected results in any
material



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or other respect. There is no fact known to the Company or any of its Subsidiaries which
has, or could reasonably be expected to have, a Material Adverse Effect which has not been
disclosed herein or in such other documents, certificates and statements furnished to the Banks for
use in connection with the transactions contemplated hereby.



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



          (b) The consolidated balance sheets of the Company and its Subsidiaries at December 31, 2005
and June 30, 2006 and the related consolidated statements of operations and cash flows of the
Company and its Subsidiaries for the fiscal year or six-month period ended as of said dates, which
December 31, 2005 financial statements have been audited by Ernst & Young, independent certified
public accountants, copies of which have heretofore been furnished
to each Bank, present fairly in all material respects the consolidated financial position of
the Company and its Subsidiaries at the date of said statements and the consolidated results of
their operations and cash flows for the period covered thereby. All such financial statements have
been prepared in accordance with GAAP in all material respects except to the extent provided in the
notes to said financial statements.




          (c) Nothing has occurred since December 31, 2005, that has had or could reasonably be expected
to have a Material Adverse Effect.




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




               6.11 Tax Returns and Payments. Each of the Company and each of its Subsidiaries has
filed all federal income tax returns and all other material tax returns, domestic



-33-









 







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



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



-34-









 







provides benefits to retired employees or other former employees (other than as required by
Section 601 of ERISA) or any employee pension benefit plan (as defined in Section 3(2) of ERISA)
the obligations with respect to which could reasonably be expected to have a material adverse
effect on the ability of the Borrowers to perform their obligations under this Agreement.



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




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



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



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



          (b) Neither the Company nor any of its Subsidiaries is liable for any material penalties,
fines or forfeitures for failure to comply with any of the foregoing referenced in clause (a)
above. All material licenses, permits, registrations or approvals required for the business of the
Company and its Subsidiaries, as conducted as of the Restatement Effective Date, under any
Environmental Law have been secured or have been timely applied for and the Company and each such
Subsidiary is in substantial compliance therewith. Neither the Company nor any of its Subsidiaries
is in any material respect in noncompliance with, breach of or default under any applicable writ,
order, judgment, injunction, or decree to which the Company or such Subsidiary is a party or which
would affect the ability of the Company or such Subsidiary to operate any Real Property and no
event has occurred and is continuing which, with the passage of time or the giving of notice or
both, would constitute a material noncompliance, breach of or default thereunder. As of the
Restatement Effective Date, there are no material Environmental Claims pending or, to the best
knowledge after due inquiry of the

-35-









 








Company, threatened, against the Company or any of its
Subsidiaries or any Real Property owned or operated at any time by the Company or any of its
Subsidiaries. There are no facts, circumstances, conditions or occurrences on any such Real
Property or, to the best knowledge after due inquiry of the Company, on any property adjacent to
any such Real Property that could reasonably be expected (i) to form the basis of a material
Environmental Claim against the Company or any of its Subsidiaries or any such Real Property, or
(ii) to cause such Real Property to be subject to any restrictions on the ownership, occupancy, use
or transferability of such Real Property under any Environmental Law.




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




               6.16 Properties. Each of the Company and its Subsidiaries has good and legal title to
all properties owned by it and valid and subsisting leasehold interests in all properties leased by
it, in each case, including all property reflected in the financial statements referred to in
Section 6.10(b) (except as sold or otherwise disposed of since the date of the June 30, 2006
financial statements in the ordinary course of business or as otherwise permitted by this
Agreement) free and clear of all Liens, other than Liens permitted by Section 8.02. Schedule
II contains a true and complete list of each Real Property owned and each Real Property leased
by the Company and its Subsidiaries on the Restatement Effective Date and the type of interest
therein held by such Person.



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



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




-36-









 








               6.18 Indebtedness. Schedule VII sets forth a true and complete list of (x)
all Indebtedness (other than the loans under the Existing Credit Agreement) of the Company and each
of its Subsidiaries outstanding as of June 30, 2006 and which is to remain outstanding after the
Restatement Effective Date and after giving effect to the Transaction and (y) all agreements
existing on June 30, 2006 and which are to remain outstanding after the Restatement Effective Date
and after giving effect to the Transaction pursuant to which the Company or any of its Subsidiaries
is entitled to incur Indebtedness (whether or not any condition to such incurrence could be met)
(collectively, as in effect and outstanding on June 30, 2006 and without giving effect to any
extension, renewal or refinancing thereof, the “Permitted Existing Indebtedness”), in each
case showing the aggregate principal amount thereof as of June 30, 2006 and the name of the
respective Borrowers and any other entity which directly or indirectly guaranteed such debt.



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



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



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



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



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

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




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




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




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



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and changes in their cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end audit
adjustments.




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




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




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




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




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




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



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




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




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




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



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



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



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



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



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



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

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




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



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



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



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



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



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



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



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



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



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



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




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




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




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




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




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




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



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faith by senior management
of the Company) received by the Company and/or its Subsidiaries from all such sales, leases
and dispositions and all sales and dispositions effected pursuant to Sections 8.01(f) and
(g), plus (C) the aggregate initial value of all equity securities (as determined in
good faith by senior management of the Company) received by the Company and/or any of its
Subsidiaries from all such sales, leases and dispositions and all sales and dispositions
effected pursuant to Sections 8.01(f) and (g), shall not at any time exceed 20% of the
Consolidated Net Worth of the Company at such time;




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



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




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




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



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



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Amount in respect of such Permitted Acquisition plus (II) the aggregate fair market
value (determined as of the proposed date of consummation of such Permitted Acquisition in
good faith by senior management of the Company) of any Common Stock issued as consideration
in connection with such Permitted Acquisition, exceeds $30,000,000, or (y) such Permitted
Acquisition does not meet the criteria set forth in clause (x) above and the sum of (I) the
Permitted Acquisition Amount in respect of such Permitted Acquisition plus (II) the
Permitted Acquisition Amount in respect of all other Permitted Acquisitions consummated in
the same fiscal year of the Company as such proposed Permitted Acquisition is to be
consummated (but excluding Permitted Acquisitions meeting the criteria set forth in clause
(x) above) plus (III) the aggregate fair market value (determined as of the proposed date of
consummation of such Permitted Acquisition in good faith by senior management of the
Company) of any Common Stock issued as consideration in connection with such Permitted
Acquisition and all other Permitted Acquisitions consummated in the same fiscal year of the
Company as such proposed Permitted Acquisition is to be consummated (but excluding any
Permitted Acquisitions meeting the criteria set forth in clause (x) above), exceeds
$30,000,000; and




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



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




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




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




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




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



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




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




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




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




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




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




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




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



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




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




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




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




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




     (e) Indebtedness under any Permitted Currency Agreement;




     (f) Indebtedness under any Permitted Commodities Agreement;




     (g) Indebtedness in addition to that expressly permitted elsewhere hereunder (both
secured and unsecured) (i) of Subsidiaries of the Company at any time so long as such
Indebtedness does not exceed 15% of the Consolidated Net Worth of the Company at any time
and (ii) of the Borrower constituting guaranties of Indebtedness permitted under clause (i)
above;




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




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




     (j) Indebtedness of the Borrowers consisting of borrowings against the cash value of
the COLI Policies;




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



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




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




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



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



               8.05 Advances, Investments and Loans. The Company will not, and will not permit any
of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest in, or make any capital
contribution to any Person, except:




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



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




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




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




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




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




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




     (h) Permitted Currency Agreements shall be permitted;




     (i) Permitted Commodities Agreements shall be permitted;




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




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




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



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




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




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



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




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




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




     (c) the Company may pay cash Dividends in any fiscal quarter to the holders of Common
Stock if and only if (x) no Default or Event of Default then exists or would result from the
payment thereof and (y) the aggregate amount of all cash Dividends proposed to be paid in
any such fiscal quarter pursuant to this clause (c), when added to the aggregate amount of
all cash Dividends previously paid during the fiscal quarter in which such cash Dividends
are proposed to be paid and during the immediately preceding three fiscal quarters, shall
not exceed the greater of (1) $15,000,000 or (2) 35% of the Consolidated Net Income of the
Company for the immediately preceding four fiscal quarters of the Company as determined from
the most recently delivered Section 7.01 Financials; and



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



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



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



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



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



               8.11 Modification of Certificate of Incorporation. The Company will not, and will not
permit any of its Subsidiaries to amend, modify or change any provision of its Certificate of
Incorporation (including, without limitation, by the filing or modification of any certificate of
designation) or By-Laws, except for such amendments to the Certificate of Incorporation or By-Laws
of the Company or any of its Subsidiaries which do not impose any monetary liabilities on the
Company or any of its Subsidiaries, as the case may be, or grant any put or similar rights to any
Person and do not otherwise adversely affect any Bank in its capacity as such.



               8.12 Limitations on Issuance of Capital Stock. The Company will not permit any of its
Subsidiaries to directly or indirectly issue, sell, assign, pledge or otherwise encumber or dispose
of any shares of its capital stock or other equity securities (or warrants, rights or options to
acquire shares or other equity securities) except (i) to qualify directors to the



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extent required
by applicable law, (ii) in connection with a Permitted Joint Venture to the extent otherwise
permitted by the terms of this Agreement or (iii) to the Company or a Wholly-Owned Subsidiary of
the Company.



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



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




               9.01 Payments. Any Borrower shall (i) default in the payment when due of any
principal of the Loans or any Unpaid Drawing or (ii) default, and such default shall continue for
three or more Business Days, in the payment when due of any interest on the Loans or Unpaid
Drawings or any Fees or any other amounts owing hereunder or under any other Credit Document; or



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



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



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



               9.05 Bankruptcy, etc. Any Designated Party shall commence a voluntary case concerning
itself under Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in
effect, or any successor thereto (the “Bankruptcy Code”); or an involuntary case is
commenced against any Designated Party and the petition is not controverted within 10 Business
Days, or is not dismissed within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of
the property of any Designated Party; or any Designated Party commences any other proceeding under
any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to any
Designated Party; or there is commenced against any Designated Party any such proceeding which
remains undismissed for a period of 60 days; or any Designated Party is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or proceeding is entered;
or any Designated Party suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a period of 60 days; or
any Designated Party makes a general assignment for the benefit of creditors; or any Designated
Party admits in writing its inability to pay its debts generally as they become due; or any
corporate action is taken by any Designated Party for the purpose of effecting any of the
foregoing; or



               9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding standard required
for any plan year or part thereof or a waiver of such standard or extension of any amortization
period is sought or granted under Section 412 of the Code, any Plan shall have had or is likely to
have a trustee appointed to administer such Plan, any Plan is, shall have been or is likely to be
terminated or to be the subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, a contribution required to be made to a Plan or a Foreign Pension Plan
has not been timely made, any Designated Party or any ERISA Affiliate has incurred or is likely to
incur a liability to or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code, or any
Designated Party or any ERISA Affiliate has incurred or is likely to incur liabilities pursuant to
one or more employee welfare benefit plans (as defined in Section 3(1) of ERISA) that provide
benefits to retired employees or other former employees (other than



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as required by Section 601 of
ERISA) or employee pension benefit plans (as defined in Section 3(2) of ERISA); (b) there shall
result from any event or events described in clause (a) of this Section 9.06, the imposition of a
lien, the granting of a security interest, or a liability or a material risk of incurring a
liability; and (c) which lien, security interest or liability referred to in clause (b) of this
Section 9.06, in the opinion of the Required Banks, could reasonably be expected to have a Material
Adverse Effect; or



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



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


then, and in any such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent shall, upon the written request of the Required Banks, by
written notice to the Company, take any or all of the following actions, without prejudice to the
rights of the Administrative Agent, any Syndication Agent or any Bank or the holder of any Note to
enforce its claims against the Borrowers, except as otherwise specifically provided for in this
Agreement (provided that, if an Event of Default specified in Section 9.05 shall occur with
respect to any Borrower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur automatically without
the giving of any such notice): (i) declare the Total Commitment terminated, whereupon the
Commitment of each Bank shall forthwith terminate immediately and any Facility Fees shall forthwith
become due and payable without any other notice of any kind; (ii) declare the principal of and any
accrued interest in respect of all Loans and all obligations owing hereunder (including Unpaid
Drawings) to be, whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; (iii)
terminate any Letter of Credit which may be terminated in accordance with its terms; (iv) apply any
cash collateral in a Cash Collateral Account or otherwise, as provided in Section 4.02 or otherwise
in the Credit Documents; and (v) direct the applicable Borrower to pay (and such Borrower hereby
agrees upon receipt of such notice, or upon the occurrence of any Event of Default specified in
Section 9.05, it will pay) to the Administrative Agent at the Payment Office such additional
amounts of cash, to be held as security for such Borrower’s reimbursement obligations in respect of
Letters of Credit issued for the account of such Borrower and then outstanding equal to the
aggregate Stated Amount of all such Letters of Credit then outstanding.




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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



	 	 	 	 	 
	 	 	Applicable
	Consolidated Indebtedness/	 	Facility Fee
	Consolidated EBITDA Ratio	 	Percentage
	Greater than 2.75:1.00

	 	 	0.175	%
	 
	 	 	 	 
	Greater than 2.50:1.00
but less than or equal to
2.75:1.00

	 	 	0.125	%
	 
	 	 	 	 
	Greater than 2.00:1.00
but less than or equal to
2.50:1.00

	 	 	0.100	%
	 
	 	 	 	 
	Greater than 1.75:1.00
but less than or equal to
2.00:1.00

	 	 	0.080	%
	 
	 	 	 	 
	Less than or equal to 1.75
to 1.00

	 	 	0.070	%





; provided that if any Section 7.01 Financials are not delivered when required (the
“Late Section 7.01 Financials”) and such Late Section 7.01 Financials establish that the
Applicable Facility Fee Percentage would have been increased to an amount set forth in the table
above on the date that such Late Section 7.01 Financials were required to have been delivered (the
“Required Delivery Date”), then such increased Applicable Facility Fee Percentage shall be
deemed to be effective as of such Required Delivery Date, and in the event that the Borrowers shall
have made any


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payment of Facility Fees during the period from the Required Delivery Date to the actual date of
delivery of such Late Section 7.01 Financials based upon any such lower Applicable Facility Fee
Percentage, then the Borrowers shall pay in the form of a supplemental Facility Fee payment, an
amount which equals the difference between the amount of Facility Fees which would otherwise have
been paid determined as if the Late Section 7.01 Financials were delivered on the Required Delivery
Date and the amount of such Facility Fees so paid, which supplemental Facility Fee payment shall be
due and payable on the date of delivery of the Late Section 7.01 Financials; provided,
further, notwithstanding the foregoing, the Applicable Facility Fee Percentage as of the
Restatement Effective Date shall be 0.100%. Notwithstanding the foregoing, the Applicable Facility
Fee Percentage for the period up to but excluding the Restatement Effective Date shall be the
“Applicable Facility Fee Percentage” as defined in the Existing Credit Agreement.




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




	 	 	 	 	 
	Consolidated Indebtedness/	 	Applicable
	Consolidated EBITDA	 	Margin
	Greater than 2.75:1.00

	 	 	0.725	%
	 
	 	 	 	 
	Greater than 2.50:1.00
but less than or equal to
2.75:1.00

	 	 	0.575	%
	 
	 	 	 	 
	Greater than 2.00:1.00
but less than or equal to
2.50:1.00

	 	 	0.400	%
	 
	 	 	 	 
	Greater than 1.75:1.00
but less than or equal to
2.00:1.00

	 	 	0.370	%
	 
	 	 	 	 
	Less than or equal to 1.75
to 1.00

	 	 	0.330	%





; provided that if any Section 7.01 Financials are not delivered when required and such
Late Section 7.01 Financials establish that the Applicable Margin would have been increased to an
amount set forth in the table above on the Required Delivery Date, then such increased Applicable
Margin shall be deemed to be effective as of such Required Delivery Date, and in the event that the
Borrowers shall have made any interest payment during the period from the Required Delivery Date to
the actual date of delivery of such Late Section 7.01 Financials based


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upon any such lower Applicable Margin, then the Borrowers shall pay in the form of a supplemental
interest payment, an amount which equals the difference between the amount of interest which would
otherwise have been paid determined as if the Late Section 7.01 Financials were delivered on the
Required Delivery Date and the amount of such interest so paid, which supplemental interest payment
shall be due and payable on the date of delivery of the Late Section 7.01 Financials;
provided, further, notwithstanding the foregoing, the Applicable Margin as of the
Restatement Effective Date shall be 0.400%. Notwithstanding the foregoing, the Applicable Margin
for the period up to but excluding the Restatement Effective Date shall be the “Applicable Margin”
as defined in the Existing Credit Agreement.




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



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



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



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



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



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



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



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



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



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



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



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



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



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



          “Borrowers” shall mean the Company and the Designated Subsidiary Borrowers.



          “Borrowing” shall mean (i) the incurrence of one Type of Revolving Loan by any Borrower from
all of the Banks on a pro rata basis on a given date (or resulting from conversions
on a given date), having in the case of Eurodollar Loans the same Interest Period, provided
that Base Rate Loans incurred pursuant to Section 1.11(b) shall be considered part of any related
Borrowing of Eurodollar Loans or (ii) a Competitive Bid Borrowing.



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



          “Capital Expenditures” shall mean, for any period, the aggregate of all expenditures (whether
paid in cash or accrued as liabilities, including Capitalized Lease Obligations but, in any event,
excluding interest capitalized in accordance with GAAP), by the



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Company and its Subsidiaries during that period that, in conformity with GAAP, are or are
required to be included in the property, plant or equipment reflected in the consolidated balance
sheet of the Company and its Subsidiaries.



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



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



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



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



          “Cash Equivalents” shall mean (i) securities issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America is pledged in support thereof)
having maturities of not more than five years from the date of acquisition, (ii) Dollar denominated
time deposits, certificates of deposit and bankers acceptances of (x) any Bank that is a commercial
bank having capital and surplus in excess of $500,000,000 or (y) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at
least P-1 or the equivalent thereof (any such Bank or bank, an “Approved Bank”), in each case with
maturities of not more than six months from the date of acquisition, (iii) commercial paper issued
by any Approved Bank or by the parent company of any Approved Bank and commercial paper issued by,
or guaranteed by, any industrial or financial company with a short-term commercial paper rating of
at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s,
or guaranteed by any industrial company with a long term unsecured debt rating of at least A or A2,
or the equivalent of each thereof, from S&P or Moody’s, as the case may be, and in each case
maturing within one year after the date of acquisition, (iv) any fund or funds investing solely in
investments of the type described in clauses (i) through (iii) above, (v) shares of money market or
mutual or similar funds having assets in excess of $100,000,000 investing solely in debt securities
with maturities of less than one year and (vi) debt securities with a rating of at least A or A2,
or the equivalent of each thereof, from S&P or Moody’s, as the case may be, of public companies
which (x) are freely tradeable without restriction on a stock exchange or through a nationally
recognized automated quotation system, (y) are purchased and held as current assets and not for
investment and (z) have a maturity of not more than five years from the issuance thereof.



          “Cash Proceeds” shall mean, with respect to any sale, lease, transfer or other disposition of
assets, the aggregate cash payments in connection therewith (including any cash received by way of
deferred payment pursuant to a note receivable issued in connection therewith, other than the
portion of such deferred payment constituting interest, and including any amounts received under
any noncompete or similar agreement or as disbursement or



-63-









 







withdrawals from any escrow or similar account established in connection with any such sale,
lease, transfer or other disposition, but, in each such case, only as and when so received).



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



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



          “Change of Control” shall mean (i) any “change of control” or similar event shall occur under
any Senior Note Document or any other agreements governing or evidencing Indebtedness of the
Company or any of its Subsidiaries (including, without limitation, Additional Indebtedness, if
any), (ii) any Person or group (as such term is defined in Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) shall have acquired, directly or
indirectly, beneficial ownership (as such term is defined in Rule 13d-3 promulgated under the
Exchange Act) of 35% or more of the outstanding Voting Stock of the Company, (iii) occupation of a
majority of the seats (other than vacant seats) of the Board of Directors of the Company by Persons
who are neither (x) nominated by the Board of Directors of the Company nor (y) appointed by
directors so nominated or (iv) any Designated Subsidiary Borrower (which term, for the avoidance of
doubt, shall exclude any Subsidiary which has ceased to be a Designated Subsidiary Borrower
pursuant to Section 1.18) shall cease to be a Wholly-Owned Subsidiary of the Company.



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



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



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



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



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



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



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



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



          “Company Guaranty” shall mean the guaranty of the Company provided in Section 13.



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



          “Designated Subsidiary Borrower” shall mean each Wholly-Owned Subsidiary of the Company which
is designated as a Designated Subsidiary Borrower in accordance with Section 1.17, other than those
Subsidiaries subsequently removed as Designated Subsidiary Borrowers hereunder pursuant to Secion
1.18.



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



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



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



          “DSB Assumption Agreement” means an assumption agreement in the form of Exhibit J.



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



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



          “Environmental Claims” shall mean any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law or any permit issued, or
any approval given, under any such Environmental Law (hereafter, “Claims”), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous
Materials arising from alleged injury or threat of injury to health, safety or the environment.



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



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



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



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



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whole multiple of 1/16 of 1%), determined as of 10:00 A.M. (London time) on the date which is
two Business Days prior to the commencement of such Interest Period.



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



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



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



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



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



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



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



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



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



          “Final Maturity Date” shall mean October 6, 2011.



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



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



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



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



          “Governmental Authority” shall mean the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.



          “Guaranteed Creditors” shall mean and include each of the Administrative Agent, the
Syndication Agents, the Banks and each Letter of Credit Issuer.



          “Guaranteed Obligations” shall mean all principal and interest on the Loans, all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit and all other obligations
(including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy
Code, would become due), liabilities and indebtedness, in each case owing by each Designated
Subsidiary Borrower to the Guaranteed Creditors under this Agreement and each other Credit Document
to which such Designated Subsidiary Borrower is a party (including, without limitation,
indemnities, fees and interest thereon (including, in each case, any interest accruing after the
commencement of any bankruptcy, insolvency, receivership or similar proceeding at the rate provided
for in the respective documentation, whether or not such interest is allowed in any such
proceeding)), whether now existing or hereafter incurred under, arising out of or in connection
with this Agreement and any such other Credit Document and the due performance and compliance by
each Designated Subsidiary Borrower with all of the terms, conditions and agreements contained in
all such Credit Documents applicable to such Designated Subsidiary Borrower.



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



          “Indebtedness” of any Person shall mean, without duplication, (i) all indebtedness of such
Person for borrowed money, (ii) the deferred purchase price of assets or services payable to
sellers thereof or any of such seller’s assignees which in accordance with GAAP would be shown on
the liability side of the balance sheet of such Person, (iii) the Stated Amount of all letters of
credit issued for the account of such Person and, without duplication, all drafts drawn



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thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any property owned
by such first Person, whether or not such indebtedness has been assumed, (v) all Capitalized Lease
Obligations of such Person, (vi) all obligations of such Person to pay a specified purchase price
for goods or services whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, and (vii) all Contingent Obligations of such Person, provided that
Indebtedness shall not include trade payables and accrued expenses, in each case arising in the
ordinary course of business.



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



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



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



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



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



          “Interest Rate Protection Agreement” shall mean any interest rate swap agreement, any interest
rate cap agreement, any interest rate collar agreement or any other similar agreement or
arrangement designed to hedge the risks for a Person with respect to, or otherwise manage, interest
rates.



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



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



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



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



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



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



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



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



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



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



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



          “LIBOR” shall mean (i) with respect to any Borrowing of Revolving Loans of an Approved
Currency, the relevant interest rate, i.e., Euribor, Sterling LIBOR or US LIBOR, (ii) with
respect to any Competitive Bid Loans of an Approved Alternate Currency, such rate per annum as may
be agreed upon by the applicable Borrower and the Bidder Bank, and (iii) with respect to a
Competitive Bid Loan that is a Spread Borrowing priced by reference to any LIBOR, the arithmetic
average (rounded to the nearest 1/100 of 1%) of the offered rates for deposits in Dollars for the
applicable Interest Period (or the period closest to such applicable Interest Period) which appear
on Dow Jones Telerate Screen 3740 or 3750) with maturities comparable to the Interest Period to be
applicable to such Competitive Bid Loan, determined as of 10:00 A.M. (London time) on the date
which is two Business Days prior to the commencement of such Interest Period.



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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as consideration in connection with such Permitted Acquisition) in connection with such
Permitted Acquisition.



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



          “Release” shall mean disposing, discharging, injecting, spilling, leaking, leaching, dumping,
emitting, escaping, emptying, seeping, placing, releasing, pumping, injecting, deposit



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ing, dispersing, migrating and the like, into or upon land or water or air, or otherwise
entering into the indoor or outdoor environment or into or out of any Real Property, including the
movement of Hazardous Materials through or in the air, soil, surface water, ground water or
property.



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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which is the commencement of such Interest Period plus (II) the Associated Cost Rate for such
Loans for such Interest Period.



          “Stock Option Plans” shall mean the 1981 Employees’ Non-Qualified Stock Option and Stock
Appreciation Rights Plan of AMETEK, Inc., as amended; the 1983 Employees’ Incentive Stock Option
Plan of AMETEK, Inc., as amended; the 1987 Employees’ Stock Incentive Plan of AMETEK, Inc., as
amended; the 1991 Stock Incentive Plan of AMETEK, Inc., as amended; the 1997 Stock Incentive Plan,
as amended; the 1999 Stock Incentive Plan, as amended; the 2002 Stock Incentive Plan, as amended
and any similar replacement or other plans which provide for stock options, restricted stock
awards, stock appreciation rights, phantom stock awards and other similar options, awards and
rights established by the Company after the Restatement Effective Date.



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



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



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



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



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



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



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



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



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



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



          “UCC” shall mean the Uniform Commercial Code.



          “Unfunded Current Liability” of any Plan shall mean the amount, if any, by which the actuarial
present value of the accumulated plan benefits under the Plan as of the close of its most recent
plan year, determined in accordance with Statement of Financial Accounting Standards No. 35, based
upon the actuarial assumptions used by the Plan’s actuary in the most recent annual valuation of
the Plan, exceeds the fair market value of the assets allocable thereto, determined in accordance
with Treasury Regulations Section 1.412(c)(2)-1(c)(1).



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



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



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



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



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



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



               11.01 Appointment. Each Bank hereby irrevocably designates and appoints JPMorgan Chase as Administrative
Agent, and each of Bank of America, N.A., PNC Bank, National Association, SunTrust Bank and
Wachovia Bank, N.A., as a Syndication Agent for such Bank to act as specified herein and in the
other Credit Documents, and each such Bank hereby irrevocably authorizes JPMorgan Chase as the
Administrative Agent and Bank of



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



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



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



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or oral statement or in any
financial or other statements, instruments, reports, certificates or any other documents in
connection herewith or therewith furnished or made by the Administrative Agent and/or any
Syndication Agent to the Banks by or on behalf of the Company or any of its Subsidiaries to the
Administrative Agent and/or any Syndication Agent or any Bank or be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or therein or as to the use of the proceeds of the Loans or of the
existence or possible existence of any Default or Event of Default.



               11.04 Reliance by the Administrative Agent, Syndication Agents, etc.



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



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



               11.06 Non-Reliance on Administrative Agent, Syndication Agents and Other Banks. Each
Bank expressly acknowledges that neither the Administrative Agent nor any Syndication Agent nor any
of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by the Administrative Agent or any
Syndication Agent hereinafter taken, including any review of the affairs of the Company or any of
its Subsidiaries, shall be deemed to constitute any representation or warranty by the
Administrative Agent or any Syndication Agent to any Bank. Each Bank represents to the
Administrative Agent and the Syndication Agents that it has,



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independently and without reliance
upon the Administrative Agent, any Syndication Agent, or any other Bank, and based on such
documents and information as it has deemed appropriate, made its own appraisal of and investigation
into the business, assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrowers and made its own decision to make its Loans, and participate in
Letters of Credit, hereunder and enter into this Agreement. Each Bank also represents that it
will, independently and without reliance upon the Administrative Agent or any Syndication Agent or
any other Bank, and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement, and to make such investigation as it deems necessary to inform itself
as to the business, assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrowers. Neither the Administrative Agent nor any Syndication Agent
shall have any duty or responsibility to provide any Bank with any credit or other information
concerning the business, operations, assets, property, financial and other conditions, prospects or
creditworthiness of the Borrowers which may come into the possession of the Administrative Agent or
such Syndication Agent or any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates.



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



               11.08 Individual Capacity. The Administrative Agent, each Syndication Agent and their
respective affiliates may make loans to, accept deposits from and generally engage in any kind of
business with the Company or any of its Subsidiaries as though the Administrative Agent or such
Syndication Agent were not the Administrative Agent or a




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Syndication Agent were not the Administrative Agent or a Syndication Agent hereunder. With respect
to the Loans made by it and all Obligations owing to it, the Administrative Agent and each
Syndication Agent shall have the same rights and powers under this Agreement as any Bank and may
exercise the same as though it were not the Administrative Agent or a Syndication Agent and the
terms “Required Banks,” “Bank” and “Banks” shall include the Administrative Agent and each
Syndication Agent in each of their respective individual capacity.




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



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



          SECTION 12. Miscellaneous.




               12.01 Payment of Expenses, etc. The Company agrees to: (i) whether or not the
transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent in connection with the negotiation, preparation, execution and
delivery of the Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto (including, without limitation, the reasonable fees
and disbursements of White & Case LLP and any consultants retained by the Administrative Agent) and
in connection with the Administrative Agent’s syndication efforts with respect to this Agreement;
(ii) pay all reasonable out-of-pocket costs and expenses of the Administrative Agent and each of
the Banks in connection with the enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation,



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




               12.02 Right of Setoff. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence
of an Event of Default, each Bank is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Company or any of its Subsidiaries
or to any other Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other Indebtedness at any
time held or owing by such Bank (including, without limitation, by branches and agencies of such
Bank wherever located) to or for the credit or the account of the Company or any of its
Subsidiaries against and on account of the Obligations and liabilities of the Company or any of its
Subsidiaries to such Bank under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations of any Borrower purchased by such Bank
pursuant to Section 12.06(b), and all other claims of any nature or
out of



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or
connected with this Agreement or any other Credit Document, irrespective of whether or not such
Bank shall have made any demand hereunder and although said Obligations, liabilities or claims, or
any of them, shall be contingent or unmatured. Each Bank shall promptly notify the Company in
writing after exercising any of its rights pursuant to this Section 12.02.




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



               12.04 Successors and Assigns. (a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns
permitted hereby except that (i) no Borrower may assign or otherwise transfer any of their rights
or obligations hereunder without the prior written consent of each Bank (and any attempted
assignment or transfer by any Borrower without such consent shall be null and void) and (ii) no
Bank may assign or otherwise transfer its rights or obligations hereunder except in accordance with
this Section. Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby, Participants (to the
extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, and the Banks) any legal or equitable
right, remedy or claim under or by reason of this Agreement.



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





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




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



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





     (A) except in the case of an assignment to a Bank or an Affiliate of a Bank or
an assignment of the entire remaining amount of the assigning Bank’s



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Commitment or
Loans, the amount of the Commitment or Loans of the assigning Bank subject to each
such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000 unless each of the Company and the Administrative Agent
otherwise consent, provided that no such consent of the Company shall be required if
an Event of Default has occurred and is continuing;


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




     (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500; and




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



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





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




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



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(ii) The Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Bank, and the
Commitment of, and principal amount of the Loans and other Obligations and owing to, each
Bank pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the
Bank may treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Bank hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by any Borrower, and any Bank, at
any reasonable time and from time to time upon reasonable prior notice.




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



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




          (ii) A Participant shall not be entitled to receive any greater payment under Section 1.11,
1.12 or 4.04 than the applicable Bank would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Company’s prior written consent and the entitlement to greater payment results solely
from a Change in Law. A Participant that would be a Foreign Bank if it were a Bank shall not be
entitled to the benefits of Section 1.11 unless the Company is notified




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of the participation sold
to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 4.04 as though it were a Bank.




          (d) Any Bank may at any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Bank, including without limitation any
pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not
apply to any such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Bank from any of its obligations hereunder or
substitute any such pledgee or assignee for such Bank as a party hereto.




          (e) Notwithstanding anything to the contrary contained herein, any Bank (a “Granting Bank”)
may grant to a special purpose funding vehicle (an, “SPC”) of such Granting Bank, identified as
such in writing from time to time by the Granting Bank to the Administrative Agent and the Company,
the option to provide to each Borrower all or any part of any Loan that such Granting Bank would
otherwise be obligated to make to such Borrower pursuant to Section 1.01, provided that (i)
nothing herein shall constitute a commitment to make any Loan by any SPC and (ii) if an SPC elects
not to exercise such option or otherwise fails to provide all or any part of such Loan, the
Granting Bank shall be obligated to make such Loan pursuant to the terms hereof. The making of a
Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and
as if, such Loan were made by the Granting Bank. Each party hereto hereby agrees that (x) no SPC
shall be liable for any payment under this Agreement for which a Bank would otherwise be liable and
(y) the Granting Bank for any SPC shall be (and hereby agrees that it is) liable for any payment
under this Agreement for which the SPC would be liable in the absence of preceding clause (x). In
furtherance of the foregoing, each party hereto hereby agrees that, prior to the date that is one
year and one day after the payment in full of all outstanding senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the contrary contained in
this Section 12.04 any SPC may (i) with notice to, but without the prior written consent of, the
Company or the Administrative Agent and without paying any processing fee therefor, assign all or a
portion of its interests in any Loans to its Granting Bank or to any financial institutions (if
consented to by each Borrower and the Administrative Agent) providing liquidity and/or credit
facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the
securities (if any) issued by such SPC to fund such Loans and (ii) disclose on a confidential basis
any non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of a surety, guarantee or credit or liquidity enhancement to such SPC.




               12.05 No Waiver; Remedies Cumulative. No failure or delay on the part of the
Administrative Agent, any Syndication Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between any Borrower and the
Administrative Agent, any Syndication Agent or any Bank shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise of any other right,
power or privilege hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Administrative Agent, any
Syndication Agent or any Bank would otherwise have. No



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notice to or demand on any Borrower in any
case shall entitle any Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent, any Syndication
Agent or the Banks to any other or further action in any circumstances without notice or demand.




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



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




               12.07 Calculations; Computations. (a) The financial statements to be furnished to
the Banks pursuant hereto shall be made and prepared in accordance with GAAP consistently applied
throughout the periods involved (except as set forth in the notes thereto or as otherwise disclosed
in writing by the Company to the Banks), provided that, except as otherwise specifically
provided herein, all computations determining compliance with Section 8, including definitions used
therein, shall utilize accounting principles and policies in effect at the time of the preparation
of, and in conformity with those used to prepare, the 2005 historical financial statements
delivered to the Banks pursuant to Section 6.10(b).



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




          (c) All determinations of the Stated Amount of Letters of Credit and of the principal amount
of Unpaid Drawings, in each case to the extent denominated in a currency other than Dollars, shall
be made by converting same into Dollars at (x) in the case of a determination of a Borrower’s
obligation to reimburse in Dollars a drawing under a Letter of Credit denominated in a currency
other than Dollars or of each Participating Bank’s obligation pursuant to Section 2.02(c) to pay
the amount of such Participating Bank’s Percentage of an unreimbursed payment in respect of any
such Letter of Credit, the spot exchange rate for the currency




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in question of the respective Letter
of Credit Issuer on the date of such drawing or (y) if the provisions of the foregoing clause (x)
are not applicable, the spot exchange rate for the currency in question calculated by the
Administrative Agent on the last day of the month preceding the month in which any such
determination is being made and at such other times as the Administrative Agent elects to make such
determination, it being understood that the Administrative Agent shall have no obligation to make
any such other determinations.




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




               12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; TRIAL BY JURY. (A) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH BORROWER HEREBY FURTHER
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER SUCH BORROWER, AND AGREES
NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS, THAT ANY SUCH COURT LACKS
JURISDICTION OVER SUCH BORROWER. IF FOR ANY REASON ANY BORROWER CEASES TO MAINTAIN AN OFFICE IN
NEW YORK CITY, SUCH BORROWER AGREES TO DESIGNATE, APPOINT AND EMPOWER A DESIGNEE, APPOINTEE AND
AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE
ADMINISTRATIVE AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF
ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE
SERVED IN ANY SUCH ACTION OR PROCEEDING. EACH BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH BORROWER, AT ITS ADDRESS
SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER SUCH
MAILING. EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN



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ANY ACTION OR PROCEEDING COMMENCED
HEREUNDER OR UNDER ANY CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY BANK OR THE
HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY BORROWER IN ANY OTHER JURISDICTION.




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




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



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



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The Administrative Agent will
give the Company and each Bank prompt written notice of the occurrence of the Restatement Effective
Date.




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



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



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




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withholding of any required
consent by such Bank) pursuant to the second proviso to Section 12.12(a).




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



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



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



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




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



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          SECTION 13. Company Guaranty.




               13.01 The Company Guaranty. In order to induce the Banks to enter into this Agreement
and to extend credit hereunder and in recognition of the direct benefits to be received by the
Company from the
proceeds of the Loans and the issuance of the Letters of Credit, the Company hereby agrees
with the Banks as follows: the Company hereby unconditionally and irrevocably guarantees, as
primary obligor and not merely as surety, the full and prompt payment when due, whether upon
maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations of each
Designated Subsidiary Borrower to the Guaranteed Creditors. If any or all of the Guaranteed
Obligations of any Designated Subsidiary Borrower to the Guaranteed Creditors becomes due and
payable hereunder, the Company unconditionally promises to pay such indebtedness to the Guaranteed
Creditors, or order, on demand, together with any and all expenses which may be incurred by the
Guaranteed Creditors in collecting any of the Guaranteed Obligations. This Company Guaranty is a
guaranty of payment and not of collection. If a claim is ever made upon any Guaranteed Creditor
for repayment or recovery of any amount or amounts received in payment or on account of any of the
Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason
of (i) any judgment, decree or order of any court or administrative body having jurisdiction over
such payee or any of its property or (ii) any settlement or compromise of any such claim effected
by such payee with any such claimant, then and in such event the Company agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon the Company,
notwithstanding any revocation of this Company Guaranty or any other instrument evidencing any
liability of each Designated Subsidiary Borrower, and the Company shall be and remain liable to the
aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by any such payee.




               13.02 Bankruptcy. Additionally, the Company unconditionally and irrevocably
guarantees the payment of any and all of the Guaranteed Obligations of each Designated Subsidiary
Borrower hereunder to the Guaranteed Creditors whether or not due or payable by each Designated
Subsidiary Borrower upon the occurrence of any of the events specified in Section 9.05 with respect
to such Designated Subsidiary Borrower, and unconditionally promises to pay such indebtedness to
the Guaranteed Creditors, or order, on demand, in lawful money of the United States.




               13.03 Nature of Liability. The liability of the Company hereunder is exclusive and
independent of any security for or other guaranty of the Guaranteed Obligations of each Designated
Subsidiary Borrower whether executed by the Company, any other guarantor or by any other party, and
the liability of the Company hereunder is not affected or impaired by (a) any direction as to
application of payment by each Designated Subsidiary Borrower or by any other party (other than a
direction by the Guaranteed Creditor receiving such payment), or (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of any other party as to the
Guaranteed Obligations of each Designated Subsidiary Borrower, or (c) any payment on or in
reduction of any such other guaranty or undertaking, or (d) any dissolution, termination or
increase, decrease or change in personnel by each Designated Subsidiary Borrower, or (e) any
payment made to the Guaranteed Creditors on the Guaranteed Obligations which any such Guaranteed
Creditor repays to each Designated Subsidiary Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other





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debtor relief proceeding, and
the Company waives any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding or (f) any action or inaction of the type described in Section 13.05.




               13.04 Independent Obligation. The obligations of the Company under this Section 13
are independent of the obligations of any other guarantor, any other party or any Designated
Subsidiary Borrower, and a separate action or actions may be brought and prosecuted against the
Company whether or not action is brought against any other guarantor, any other party or any
Designated Subsidiary Borrower and whether or not any other guarantor, any other party or any
Designated Subsidiary Borrower be joined in any such action or actions. The Company waives, to the
full extent permitted by law, the benefit of any statute of limitations affecting its liability
under this Section 13 or the enforcement thereof. Any payment by a Designated Subsidiary Borrower
or other circumstance which operates to toll any statute of limitations as to a Designated
Subsidiary Borrower shall operate to toll the statute of limitations as to the Company.



               13.05 Authorization. The obligations of the Company under this Section 13 shall be
unconditional and absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by any action taken by any Guaranteed Creditor to:




     (a) change the manner, place or terms of payment of, and/or change or extend the time
of payment of, renew, increase, accelerate or alter, any of the Guaranteed Obligations
(including any increase or decrease in the rate of interest thereon), any security therefor,
or any liability incurred directly or indirectly in respect thereof, and the guaranty herein
made shall apply to the Guaranteed Obligations as so changed, extended, renewed or altered;




     (b) take and hold security for the payment of the Guaranteed Obligations and sell,
exchange, release, impair, surrender, realize upon or otherwise deal with in any manner and
in any order any property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;




     (c) exercise or refrain from exercising any rights against any Designated Subsidiary
Borrower or others or otherwise act or refrain from acting;




     (d) release or substitute any one or more endorsers, guarantors, any Designated
Subsidiary Borrower or other obligor;




     (e) settle or compromise any of the Guaranteed Obligations, any security therefor or
any liability (including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part thereof to the payment
of any liability (whether due or not) of any Designated Subsidiary Borrower to its creditors
other than the Guaranteed Creditors;



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     (f) apply any sums by whomsoever paid or howsoever realized to any liability or
liabilities of any Designated Subsidiary Borrower to the Guaranteed Creditors regardless of
what liability or liabilities of any Designated Subsidiary Borrower remain unpaid;




     (g) consent to or waive any breach of, or any act, omission or default under, this
Agreement or any other Credit Document or any of the instruments or agreements referred to
herein or therein, or otherwise amend, modify or supplement this Agreement, any other Credit
Document or any of such other instruments or agreements; and/or




     (h) take any other action which would, under otherwise applicable principles of common
law, give rise to a legal or equitable discharge of the Company from its liabilities under
this Company Guaranty.



               13.06 Reliance. It is not necessary for the Guaranteed Creditors to inquire into the
capacity or powers of any Designated Subsidiary Borrower or the officers, directors, partners or
agents acting or purporting to act on their behalf, and any Guaranteed Obligations made or created
in reliance upon the professed exercise of such powers shall be guaranteed hereunder.



               13.07 Subordination. Any indebtedness of any Designated Subsidiary Borrower now or
hereafter owing to the Company is hereby subordinated to the Guaranteed Obligations of each
Designated Subsidiary Borrower owing to the Guaranteed Creditors; and if the Administrative Agent
so requests at a time when an Event of Default exists, no Designated Subsidiary Borrower shall
make, or be permitted to make, any payment to the Company in respect of such indebtedness owed to
the Company, but without affecting or impairing in any manner the liability of the Company under
the other provisions of this Company Guaranty. Prior to the transfer by the Company of any note or
negotiable instrument evidencing any of the indebtedness of any Designated Subsidiary Borrower to
the Company, the Company shall mark such note or negotiable instrument with a legend that the same
is subject to this subordination. Without limiting the generality of the foregoing, the Company
hereby agrees with the Guaranteed Creditors that it will not exercise any right of subrogation
which it may at any time otherwise have as a result of this Company Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash.



               13.08 Waiver. (a) The Company waives any right (except as shall be required by
applicable statute and cannot be waived) to require any Guaranteed Creditor to (i) proceed against
any Designated Subsidiary Borrower, any other guarantor or any other party, (ii) proceed against or
exhaust any security held from any Designated Subsidiary Borrower, any other guarantor or any other
party or (iii) pursue any other remedy in any Guaranteed Creditor’s power whatsoever. The Company
waives any defense based on or arising out of any defense of any Designated Subsidiary Borrower,
any other guarantor or any other party, other than payment in full of the Guaranteed Obligations,
based on or arising out of the disability of any Designated Subsidiary Borrower, any other
guarantor or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause of the
liability of any Designated Subsidiary Borrower other than payment in full of the Guaranteed
Obligations. The Guaranteed Creditors may, at their election, foreclose on any security held by



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the Administrative Agent or any other Guaranteed Creditor by one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or remedy the Guaranteed
Creditors may have against any Designated Subsidiary Borrower or any other party, or any security,
without affecting or impairing in any way the liability of the Company hereunder except to the
extent the Guaranteed Obligations have been paid. The Company waives any defense arising out of
any such election by the Guaranteed Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy of the Company
against any Designated Subsidiary Borrower or any other party or any security.



          (b) The Company waives all presentments, demands for performance, protests and notices,
including, without limitation, notices of non-performance, notices of protest, notices of dishonor,
notices of acceptance of this Company Guaranty, and notices of the existence, creation or incurring
of new or additional Guaranteed Obligations. The Company assumes all responsibility for being and
keeping itself informed of each Designated Subsidiary Borrower’s financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations
and the nature, scope and extent of the risks which the Company assumes and incurs hereunder, and
agrees that the Guaranteed Creditors shall have no duty to advise the Company of information known
to them regarding such circumstances or risks.



          (c) The Company warrants and agrees that each of the waivers set forth above in this Section
13.08 is made with full knowledge of its significance and consequences, and such waivers shall be
effective to the maximum extent permitted by law.


* * *






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



	 	 	 	 	 	 	 
	Address:	 	AMETEK, INC.
	37 North Valley Building 4
	 	 	 	 	 	 
	P.O. Box 1764
	 	 	 	 	 	 
	Paoli, Pennsylvania 19301-0801


Telephone No.: 610-889-5296

	 	By:
	 	/s/ Mark S. Pave
 

Title: Assistant Treasurer
	 	 
	Telecopier No.: 610-647-0211
	 	 	 	 	 	 
	Attention: Mark S. Pave
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,
	 	 	     Individually and as the Administrative Agent
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Lee P. Brennan	 	 
	 

	 	 	 	 

Title: Vice President
	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,
	 	 	     Individually and as a Syndication Agent
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Henry F. Bullitt
 

Title: Senior Vice President
	 	 
	 
	 	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION,
	 	 	     Individually and as a Syndication Agent
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Denise D. Killen
 

Title: Senior Vice President
	 	 
	 
	 	 	 	 	 	 
	 	 	SUNTRUST BANK,
	 	 	     Individually and as a Syndication Agent
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Van Buren Knick, II
 

Title: Vice President
	 	 






(i)









 





Page



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

	 	By:
	 	/s/ C. Jeffrey Seaton
 

Title: Managing Director
	 	 
	 
	 	 	 	 	 	 
	 	 	MANUFACTURERS AND
TRADERS TRUST COMPANY
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brian J. Sohocki
 

Title: Vice President
	 	 
	 
	 	 	 	 	 	 
	 	 	BANCA INTESA
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John J. Michalisin
 

Title: First Vice President
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Francesco DiMario
 

Title: First Vice President
	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Roger Grossman
 

Title: Vice President
	 	 
	 
	 	 	 	 	 	 
	 	 	ABN AMRO BANK N.V.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Frances Logan
 

Title: Managing Director
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Christopher Lo
 

Title: Title: Assistant Vice President
	 	 






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	 	 	COMERICA BANK
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John M. Costa
 

Title: First Vice President
	 	 
	 
	 	 	 	 	 	 
	 	 	CITIZENS BANK OF PENNSYLVANIA
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Megan Soltys
 

Title: Vice President
	 	 
	 
	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Suzannah Harris
 

Title: Vice President
	 	 







(iii)