exv10w1



 





Exhibit 10.1



EXECUTION COPY



U.S. $300,000,000




THREE-YEAR CREDIT AGREEMENT




Dated as of April 16, 2004




Among




LAFARGE NORTH AMERICA INC.




and




THE OTHER BORROWERS NAMED HEREIN




as Borrowers




and




THE INITIAL LENDERS NAMED HEREIN




as Initial Lenders




and




CITIBANK, N.A.




as Administrative Agent




and




CITIGROUP GLOBAL MARKETS INC.

and

WACHOVIA SECURITIES, INC.




as Joint Arrangers and Joint Bookrunners




and




WACHOVIA BANK, NATIONAL ASSOCIATION




as Syndication Agent





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I
	 	 	 	 
	SECTION 1.01. Certain Defined Terms
	 	 	1	 
	SECTION 1.02. Computation of Time Periods
	 	 	10	 
	SECTION 1.03. Accounting Terms
	 	 	10	 
	ARTICLE II
	 	 	 	 
	SECTION 2.01. The Revolving Credit Advances
	 	 	11	 
	SECTION 2.02. Making the Revolving Credit Advances
	 	 	11	 
	SECTION 2.03. The Competitive Bid Advances
	 	 	12	 
	SECTION 2.04. Fees
	 	 	14	 
	SECTION 2.05. Optional Termination or Reduction of the Commitments
	 	 	15	 
	SECTION 2.06. Repayment of Revolving Credit Advances
	 	 	15	 
	SECTION 2.07. Interest on Revolving Credit Advances
	 	 	15	 
	SECTION 2.08. Interest Rate Determination
	 	 	15	 
	SECTION 2.09. Optional Conversion of Revolving Credit Advances
	 	 	16	 
	SECTION 2.10. Prepayments of Revolving Credit Advances
	 	 	16	 
	SECTION 2.11. Increased Costs
	 	 	17	 
	SECTION 2.12. Illegality
	 	 	17	 
	SECTION 2.13. Payments and Computations
	 	 	17	 
	SECTION 2.14. Taxes
	 	 	18	 
	SECTION 2.15. Sharing of Payments, Etc.
	 	 	19	 
	SECTION 2.16. Evidence of Debt
	 	 	20	 
	SECTION 2.17. Use of Proceeds
	 	 	20	 
	ARTICLE III
	 	 	 	 
	SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03
	 	 	20	 







 i 





 









 








	 	 	 	 	 
	SECTION 3.02. Conditions Precedent to the Initial Borrowing of Each Designated Subsidiary
	 	 	22	 
	SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing.
	 	 	22	 
	SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing
	 	 	22	 
	SECTION 3.05. Determinations Under Section 3.01
	 	 	23	 
	ARTICLE IV
	 	 	 	 
	SECTION 4.01. Representations and Warranties of the Borrower
	 	 	23	 
	ARTICLE V
	 	 	 	 
	SECTION 5.01. Affirmative Covenants
	 	 	25	 
	SECTION 5.02. Negative Covenants
	 	 	27	 
	SECTION 5.03. Financial Covenants
	 	 	29	 
	ARTICLE VI
	 	 	 	 
	SECTION 6.01. Events of Default
	 	 	29	 
	ARTICLE VII
	 	 	 	 
	SECTION 7.01. Obligations Joint and Several
	 	 	31	 
	SECTION 7.02. Joint and Several Nature of Obligations Absolute
	 	 	31	 
	SECTION 7.03. Waivers and Acknowledgments
	 	 	32	 
	SECTION 7.04. Subrogation
	 	 	32	 
	SECTION 7.05. Continuing Obligations
	 	 	33	 
	ARTICLE VIII
	 	 	 	 
	SECTION 8.01. Authorization and Action
	 	 	33	 
	SECTION 8.02. Agent’s Reliance, Etc.
	 	 	33	 
	SECTION 8.03. Citibank and Affiliates
	 	 	34	 
	SECTION 8.04. Lender Credit Decision
	 	 	34	 
	SECTION 8.05. Indemnification
	 	 	34	 
	SECTION 8.06. Successor Agent
	 	 	34	 
	SECTION 8.07. Other Agents.
	 	 	34	 







ii





 









 








	 	 	 	 	 
	ARTICLE IX
	 	 	 	 
	SECTION 9.01. Amendments, Etc.
	 	 	35	 
	SECTION 9.03. No Waiver; Remedies
	 	 	36	 
	SECTION 9.04. Costs and Expenses
	 	 	36	 
	SECTION 9.05. Right of Set-off
	 	 	37	 
	SECTION 9.06. Binding Effect
	 	 	37	 
	SECTION 9.07. Assignments and Participations
	 	 	37	 
	SECTION 9.08. Designated Subsidiaries
	 	 	39	 
	SECTION 9.09. Confidentiality
	 	 	39	 
	SECTION 9.10. Governing Law
	 	 	40	 
	SECTION 9.11. Execution in Counterparts
	 	 	40	 
	SECTION 9.12. Jurisdiction, Etc.
	 	 	40	 
	SECTION 9.13. Waiver of Jury Trial
	 	 	40	 







iii




 









 






Schedules



Schedule I — List of Applicable Lending Offices

Schedule II — List of Borrowers

Schedule 3.01(b) — Disclosed Litigation

Schedule 5.02(a) — Existing Liens

Exhibits




	 	 	 	 	 
	Exhibit A-1

	 	-
	 	Form of Revolving Credit Note
	Exhibit A-2

	 	-
	 	Form of Competitive Bid Note
	Exhibit B-1

	 	-
	 	Form of Notice of Revolving Credit Borrowing
	Exhibit B-2

	 	-
	 	Form of Notice of Competitive Bid Borrowing
	Exhibit C

	 	-
	 	Form of Assignment and Acceptance
	Exhibit D

	 	-
	 	Form of Opinion of Counsel for the Borrower
	Exhibit E

	 	-
	 	Form of Designation Letter







iv




 









 








THREE-YEAR CREDIT AGREEMENT




Dated as of April 16, 2004




          LAFARGE NORTH AMERICA INC., a Maryland corporation (the “Company”), the
Significant Subsidiaries of the Company listed on the signature pages hereof
(the Company and each such Significant Subsidiary, an “Initial Borrower” and
collectively, the “Initial Borrowers”), the banks, financial institutions and
other institutional lenders (the “Initial Lenders”) listed on the signature
pages hereof, WACHOVIA BANK, NATIONAL ASSOCIATION, as syndication agent,
CITIGROUP GLOBAL MARKETS INC. and WACHOVIA SECURITIES, INC, as joint lead
arrangers and joint bookrunners, and CITIBANK, N.A. (“Citibank”), as
administrative agent (the “Agent”) for the Lenders (as hereinafter defined),
agree as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




          SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):




     “Advance” means a Revolving Credit Advance or a Competitive Bid
Advance.




     “Affiliate” means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term “control” (including the terms “controlling”,
“controlled by” and “under common control with”) of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.




     “Agent’s Account” means the account of the Agent maintained by the
Agent at Citibank at its office at 388 Greenwich Street, New York, New
York 10013, Account No. 36852248, Attention: Bank Loan Syndications.




     “Applicable Lending Office” means, with respect to each Lender, such
Lender’s Domestic Lending Office in the case of a Base Rate Advance and
such Lender’s Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a Competitive Bid Advance, the office of such
Lender notified by such Lender to the Agent as its Applicable Lending
Office with respect to such Competitive Bid Advance.




     “Applicable Margin” means (a) for Base Rate Advances, 0% per annum
and (b) for Eurodollar Rate Advances, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:



	 	 	 	 	 
	Public Debt Rating	 	Applicable Margin for
	S&P/Moody's
	 	Eurodollar Rate Advances

	Level 1
	 	 	 	 
	A or A2 or above
	 	 	0.200	%
	Level 2
	 	 	 	 
	A- or A3 or above
	 	 	0.425	%
	Level 3
	 	 	 	 
	BBB+ or Baa1
	 	 	0.500	%







1









 






	 	 	 	 	 
	Public Debt Rating	 	Applicable Margin for
	S&P/Moody's
	 	Eurodollar Rate Advances

	Level 4
	 	 	 	 
	BBB or Baa2
	 	 	0.725	%
	Level 5
	 	 	 	 
	BBB- and Baa3
	 	 	0.800	%
	Level 6
	 	 	 	 
	Less than Level 5
	 	 	1.000	%








     “Applicable Percentage” means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:



	 	 	 	 	 
	Public Debt Rating	 	Applicable
	S&P/Moody's
	 	Percentage

	Level 1
	 	 	 	 
	A or A2 or above
	 	 	0.075	%
	Level 2
	 	 	 	 
	A- or A3 or above
	 	 	0.100	%
	Level 3
	 	 	 	 
	BBB+ or Baa1
	 	 	0.125	%
	Level 4
	 	 	 	 
	BBB or Baa2
	 	 	0.150	%
	Level 5
	 	 	 	 
	BBB- and Baa3
	 	 	0.200	%
	Level 6
	 	 	 	 
	Less than Level 5
	 	 	0.250	%








     “Applicable Utilization Fee” means, as of any date that the
aggregate Advances exceed 50% of the aggregate Commitments, a percentage
per annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:



	 	 	 	 	 
	Public Debt Rating	 	Applicable
	S&P/Moody's
	 	Utilization Fee

	Level 1
	 	 	 	 
	A or A2 or above
	 	 	0.075	%
	Level 2
	 	 	 	 
	A- or A3 or above
	 	 	0.100	%
	Level 3
	 	 	 	 
	BBB+ or Baa1
	 	 	0.125	%
	Level 4
	 	 	 	 
	BBB or Baa2
	 	 	0.125	%
	Level 5
	 	 	 	 
	BBB- and Baa3
	 	 	0.250	%
	Level 6
	 	 	 	 
	Less than Level 5
	 	 	0.250	%








     “Assignment and Acceptance” means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.



2









 






     “Base Rate” means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the highest of:




     (a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank’s base rate;




     (b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of
1% per annum, plus (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week
moving average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published
by the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations for
such rates received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by Citibank, by (B)
a percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities consisting of
or including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment
rates estimated by Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar deposits of
Citibank in the United States; and




     (c) 1/2 of one percent per annum above the Federal Funds
Rate.




     “Base Rate Advance” means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(i).




     “Borrower” means each Initial Borrower and each Designated
Subsidiary that shall become a party to this Agreement pursuant to
Section 9.08.




     “Borrowing” means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.




     “Business Day” means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances or LIBO
Rate Advances, on which dealings are carried on in the London interbank
market.




     “Commitment” means as to any Lender (a) the amount set forth
opposite such Lender’s name on the signature pages hereof, or (b) if such
Lender has entered into any Assignment and Acceptance, the amount set
forth for such Lender in the Register maintained by the Agent pursuant to
Section 9.07(d), as such amount may be reduced pursuant to Section 2.05.




     “Competitive Bid Advance” means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.




     “Competitive Bid Borrowing” means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.



3









 






     “Competitive Bid Note” means a promissory note of a Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender.




     “Competitive Bid Reduction” has the meaning specified in Section
2.01.




     “Confidential Information” means confidential or proprietary
information that any Borrower furnishes to the Agent or any Lender, but
does not include any such information that is or becomes generally
available to the public or that is or becomes available to the Agent or
such Lender from a source other than any Borrower that, to the knowledge
of the Agent or such Lender, is subject to a confidentiality arrangement
with such Borrower.




     “Consolidated” refers to the consolidation of accounts in accordance
with GAAP.




     “Convert”, “Conversion” and “Converted” each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances
of the other Type pursuant to Section 2.08 or 2.09.




     “Debt” of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables incurred in the ordinary course of such
Person’s business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (e) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (f) all
Synthetic Lease Liabilities of such Person, (g) all Invested Amounts, (h)
all Debt of others referred to in clauses (a) through (f) above or clause
(h) below guaranteed by such Person, or in effect guaranteed by such
Person and (i) all Debt referred to in clauses (a) through (h) above
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for
the payment of such Debt, which Debt, in the case of this clause (i)
shall be deemed not to exceed the fair market value of such encumbered
property.




     “Default” means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.




     “Designated Subsidiary” means any Subsidiary designated after the
date of this Agreement for borrowing privileges hereunder pursuant to
Section 9.08.




     “Designation Letter” means a letter entered into by a Designated
Subsidiary, the Company and the Agent, in substantially the form of
Exhibit E hereto, pursuant to which such Designated Subsidiary shall
become a Borrower hereunder in accordance with Section 9.08.




     “Disclosed Litigation” has the meaning specified in Section 3.01(b).




     “Domestic Lending Office” means, with respect to any Lender, the
office of such Lender specified as its “Domestic Lending Office” opposite
its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other office of such Lender
as such Lender may from time to time specify to the Company and the
Agent.




     “EBITDA” means, for any period, net income (or net loss) plus the
sum of (a) interest expense net of interest income, (b) income tax
expense, (c) depreciation expense, (d) depletion expense and (e)
amortization expense, in each case determined in accordance with GAAP for
such period.




     “Effective Date” has the meaning specified in Section 3.01.



4









 






     “Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 9.07, the Company, such
approval not to be unreasonably withheld or delayed; provided, however,
that neither any Borrower nor an Affiliate of any Borrower shall qualify
as an Eligible Assignee.




     “Environmental Action” means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability
or potential liability, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or other
actions or damages and (b) by any governmental or regulatory authority or
any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.




     “Environmental Law” means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.




     “Environmental Permit” means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.




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




     “ERISA Affiliate” means any Person that for purposes of Title IV of
ERISA is a member of the Company’s controlled group, or under common
control with the Company, within the meaning of Section 414 of the
Internal Revenue Code.




     “ERISA Event” means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section
4041(e) of ERISA); (d) the cessation of operations at a facility of the
Company or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the Company or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(f) the conditions for the imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (g) the adoption of
an amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.




     “Eurocurrency Liabilities” has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.




     “Eurodollar Lending Office” means, with respect to any Lender, the
office of such Lender specified as its “Eurodollar Lending Office”
opposite its name on Schedule I hereto or in the Assignment



5









 






and Acceptance pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or such other office
of such Lender as such Lender may from time to time specify to the
Company and the Agent.




     “Eurodollar Rate” means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Credit Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a) the rate per annum (rounded upward to the nearest whole multiple of
1/16 of 1% per annum) appearing on Moneyline Telerate Markets Page 3750
(or any successor page) as the London interbank offered rate for deposits
in U.S. dollars at approximately 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period for a term comparable
to such Interest Period or, if for any reason such rate is not available,
the average (rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the rate per annum
at which deposits in U.S. dollars are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank’s Eurodollar Rate Advance comprising part of
such Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period. If the Moneyline Telerate Markets Page 3750 (or any
successor page) is unavailable, the Eurodollar Rate for any Interest
Period for each Eurodollar Rate Advance comprising part of the same
Revolving Credit Borrowing shall be determined by the Agent on the basis
of applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.




     “Eurodollar Rate Advance” means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(ii).




     “Eurodollar Rate Reserve Percentage” for any Interest Period for all
Eurodollar Rate Advances or LIBO Rate Advances comprising part of the
same Borrowing means the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which the
interest rate on Eurodollar Rate Advances or LIBO Rate Advances is
determined) having a term equal to such Interest Period.




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




     “Federal Funds Rate” means, for any period, a fluctuating interest
rate per annum 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 that is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing
selected by it.




     “Fixed Rate Advances” has the meaning specified in Section
2.03(a)(i).




     “GAAP” has the meaning specified in Section 1.03.




     “Hazardous Materials” means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.



6









 






     “Hedge Agreements” means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity future or
option contracts and other similar agreements.




     “Information Memorandum” means the information memorandum dated
   , 2004 used by the Agent in connection with the syndication of
the Commitments.




     “Interest Period” means, for each Eurodollar Rate Advance comprising
part of the same Revolving Credit Borrowing and each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurodollar Rate Advance or LIBO Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance and ending on the last day of the period selected
by the applicable Borrower pursuant to the provisions below and,
thereafter, with respect to Eurodollar Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the
applicable Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be one, two, three or six months, as the
applicable Borrower may, upon notice received by the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:




     (i) a Borrower may not select any Interest Period that ends
after the Termination Date;




     (ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same duration;




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




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



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.



     “Invested Amounts” means the amounts invested by investors that are
not Affiliates of the Borrowers in connection with a receivables
securitization program and paid to the Company or any of its
Subsidiaries, as reduced by the aggregate amounts received by such
investors from the payment of receivables and applied to reduce such
invested amounts.



     “Lenders” means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07.



     “LIBO Rate” means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a) the rate per annum (rounded upward to the nearest whole multiple of
1/16 of 1% per annum) appearing on Moneyline Telerate Markets Page 3750
(or any successor page) as the London interbank offered rate for deposits
in U.S. dollars at approximately 11:00 A.M. (London time) two Business
Days



7









 







prior to the first day of such Interest Period for a term comparable
to such Interest Period or, if for any reason such rate is not available,
the average (rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the rate per annum
at which deposits in U.S. dollars offered by the principal office of each
of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to the
amount that would be the Reference Banks’ respective ratable shares of
such Borrowing if such Borrowing were to be a Revolving Credit Borrowing
to be outstanding during such Interest Period and for a period equal to
such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period. If the
Moneyline Telerate Markets Page 3750 (or any successor page) is
unavailable, the LIBO Rate for any Interest Period for each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before
the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.



     “LIBO Rate Advances” means a Competitive Bid Advance bearing
interest based on the LIBO Rate.



     “Lien” means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.



     “Material Adverse Change” means any material adverse change in the
business, condition (financial or otherwise), results of operations,
performance, properties or prospects of the Company and its Subsidiaries
taken as a whole.



     “Material Adverse Effect” means a material adverse effect on (a) the
business, condition (financial or otherwise), results of operations,
performance, properties or prospects of the Company and its Subsidiaries
taken as a whole, (b) the rights and remedies of the Agent or any Lender
under this Agreement or any Note or (c) the ability of any Borrower to
perform its obligations under this Agreement or any Note.



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



     “Multiemployer Plan” means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to
make contributions.



     “Multiple Employer Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any ERISA Affiliate and at least one Person other than the
Company and the ERISA Affiliates or (b) was so maintained and in respect
of which the Company or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.



     “Note” means a Revolving Credit Note or a Competitive Bid Note.



     “Notice of Competitive Bid Borrowing” has the meaning specified in
Section 2.03(a).



     “Notice of Revolving Credit Borrowing” has the meaning specified in
Section 2.02(a).



     “Obligations” has the meaning specified in Section 7.01.



     “PBGC” means the Pension Benefit Guaranty Corporation (or any
successor).



8









 





     “Permitted Liens” means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced unless being contested in good faith and for which
appropriate reserves are being maintained: (a) Liens for taxes,
assessments and governmental charges or levies to the extent not required
to be paid under Section 5.01(b) hereof; (b) Liens imposed by law, such
as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 60
days; (c) pledges or deposits to secure obligations under workers’
compensation laws or similar legislation or to secure public or statutory
obligations; and (d) easements, rights of way and other encumbrances on
title to real property that do not render title to the property
encumbered thereby unmarketable or materially adversely affect the use of
such property for its present purposes.



     “Person” means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.



     “Plan” means a Single Employer Plan or a Multiple Employer Plan.



     “Public Debt Rating” means, as of any date, the lowest rating that
has been most recently announced by either S&P or Moody’s, as the case
may be, for any class of non-credit enhanced long-term senior unsecured
debt issued by the Company. For purposes of the foregoing, (a) if only
one of S&P and Moody’s shall have in effect a Public Debt Rating, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be determined by reference to the available rating;
(b) if neither S&P nor Moody’s shall have in effect a Public Debt Rating,
the Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee will be set in accordance with Level 3 under the
definition of “Applicable Margin”, “Applicable Percentage” or “Applicable
Utilization Fee”, as the case may be; (c) if the ratings established by
S&P and Moody’s shall fall within different levels, the Applicable
Margin, the Applicable Percentage and the Applicable Utilization Fee
shall be based upon the higher rating, except that if the lower of such
ratings is more than one level below the higher of such ratings, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the level that is one level above the
lower rating; (d) if any rating established by S&P or Moody’s shall be
changed, such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such
change; and (e) if S&P or Moody’s shall change the basis on which ratings
are established, each reference to the Public Debt Rating announced by
S&P or Moody’s, as the case may be, shall refer to the then equivalent
rating by S&P or Moody’s, as the case may be.



     “Reference Banks” means Citibank, Wachovia Bank, National
Association and Bank One, NA.



     “Register” has the meaning specified in Section 9.07(d).



     “Required Lenders” means (a) at any time prior to an acceleration of
the Advances pursuant to Section 6.01, Lenders owed at least a majority
in interest of the then aggregate unpaid principal amount of the
Revolving Credit Advances owing to Lenders, or, if no such principal
amount is then outstanding, Lenders having at least a majority in
interest of the Commitments or (b) at any time after an acceleration of
the Advances pursuant to Section 6.01, Lenders owed at least a majority
in interest of the then aggregate unpaid principal amount of the Advances
owing to Lenders, or, if no such principal amount is then outstanding,
Lenders having at least a majority in interest of the Commitments.



     “Revolving Credit Advance” means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
“Type” of Revolving Credit Advance).



     “Revolving Credit Borrowing” means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.



9









 





     “Revolving Credit Note” means a promissory note of the Borrowers
payable to the order of any Lender, delivered pursuant to a request made
under Section 2.16 in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrowers to such Lender
resulting from the Revolving Credit Advances made by such Lender.



     “Significant Subsidiary” means any Subsidiary of the Company or
group of Subsidiaries of the Company which, in either case, holds or owns
total assets with a book value in excess of $50,000,000 or has annual
revenues in excess of $50,000,000.



     “Single Employer Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any ERISA Affiliate and no Person other than the Company and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Company or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.



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



     “Subsidiary” of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in
which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries or
by one or more of such Person’s other Subsidiaries.



     “Synthetic Lease Liabilities” of a Person means any liability under
any tax retention operating lease or so-called “synthetic” lease
transaction, or any obligations arising with respect to any other similar
transaction which the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the Consolidated
balance sheets of such Person and its Subsidiaries (other than leases
which do not have an attributable interest component that are not leases
that have been, or should be, in accordance with GAAP, recorded as
capital leases).



     “Termination Date” means the earlier of April 16, 2007 and the date
of termination in whole of the Commitments pursuant to Section 2.05 or
6.01.



     “Voting Stock” means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.



          SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including” and the words “to” and “until” each
mean “to but excluding”.



          SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) (“GAAP”).



ARTICLE II




AMOUNTS AND TERMS OF THE ADVANCES




10









 








          SECTION 2.01. The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrowers from time to time on any Business Day during
the period from the Effective Date until the Termination Date in an aggregate
amount not to exceed at any time outstanding such Lender’s Commitment provided
that the aggregate amount of the Commitments of the Lenders shall be deemed
used from time to time to the extent of the aggregate amount of the Competitive
Bid Advances then outstanding and such deemed use of the aggregate amount of
the Commitments shall be allocated among the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a “Competitive Bid Reduction”). Each Revolving Credit
Borrowing shall be in an aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall consist of Revolving Credit
Advances of the same Type made on the same day by the Lenders ratably according
to their respective Commitments. Within the limits of each Lender’s
Commitment, the Borrowers may borrow under this Section 2.01, prepay pursuant
to Section 2.10 and reborrow under this Section 2.01.



          SECTION 2.02. Making the Revolving Credit Advances. (a) Each Revolving
Credit Borrowing shall be made on notice, given not later than (x) 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (New York City time)
on the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Base Rate Advances, by the applicable
Borrower to the Agent, which shall give to each Lender prompt notice thereof by
telecopier. Each such notice of a Revolving Credit Borrowing (a “Notice of
Revolving Credit Borrowing”) shall be by telephone, confirmed immediately in
writing, or telecopier in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such Revolving Credit Borrowing,
(ii) Type of Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of such Revolving Credit Borrowing, and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of such Revolving Credit
Borrowing make available for the account of its Applicable Lending Office to
the Agent at the Agent’s Account, in same day funds, such Lender’s ratable
portion of such Revolving Credit Borrowing. After the Agent’s receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Agent will make such funds available to the applicable Borrower at the
Agent’s address referred to in Section 9.02. Each Borrower hereby authorizes
the Company to deliver each Notice of Borrowing on behalf of such Borrower.



          (b) Anything in subsection (a) above to the contrary notwithstanding, (i)
a Borrower may not select Eurodollar Rate Advances for any Revolving Credit
Borrowing if the aggregate amount of such Revolving Credit Borrowing is less
than $10,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the
Eurodollar Rate Advances may not be outstanding as part of more than six
separate Revolving Credit Borrowings.



          (c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the applicable Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurodollar Rate Advances, the Borrowers shall jointly and
severally indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Revolving Credit Borrowing for such Revolving
Credit Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Revolving Credit Advance to be
made by such Lender as part of such Revolving Credit Borrowing when such
Revolving Credit Advance, as a result of such failure, is not made on such
date.



          (d) Unless the Agent shall have received notice from a Lender prior to the
date of any Revolving Credit Borrowing that such Lender will not make available
to the Agent such Lender’s ratable portion of such Revolving Credit Borrowing,
the Agent may assume that such Lender has made such portion available to the
Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the applicable Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Agent, such Lender and the Borrowers
severally agree to repay (and all the Borrowers jointly and severally agree
to repay) to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the applicable Borrower until the date such amount is repaid to
the



11









 







Agent, at (i) in the case of the Borrowers, the interest rate applicable at
the time to Revolving Credit Advances comprising such Revolving Credit
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender’s Revolving Credit Advance as part of such
Revolving Credit Borrowing for purposes of this Agreement.



          (e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.



          SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally
agrees that the Borrowers may make Competitive Bid Borrowings under this
Section 2.03 from time to time on any Business Day during the period from the
date hereof until the date occurring 30 days prior to the Termination Date in
the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders (computed without regard to any Competitive Bid Reduction).




     (i) The Company may request on behalf of one or more Borrowers a
Competitive Bid Borrowing under this Section 2.03 by delivering to the
Agent, by telecopier, a notice of a Competitive Bid Borrowing (a “Notice
of Competitive Bid Borrowing”), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, Interest Period, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances, maturity
date for repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than
the date occurring 30 days after the date of such Competitive Bid
Borrowing or later than the Termination Date), (y) interest payment date
or dates relating thereto, and (z) other terms (if any) to be applicable
to such Competitive Bid Borrowing, not later than 10:00 A.M. (New York
City time) (A) at least one Business Day prior to the date of the
proposed Competitive Bid Borrowing, if the Company shall specify in the
Notice of Competitive Bid Borrowing that the rates of interest to be
offered by the Lenders shall be fixed rates per annum (the Advances
comprising any such Competitive Bid Borrowing being referred to herein as
“Fixed Rate Advances”) and (B) at least four Business Days prior to the
date of the proposed Competitive Bid Borrowing, if the Company shall
instead specify in the Notice of Competitive Bid Borrowing that the
Advances comprising such Competitive Bid Borrowing shall be LIBO Rate
Advances. Each Notice of Competitive Bid Borrowing shall be irrevocable
and binding on the Borrowers. The Agent shall in turn promptly notify
each Lender of each request for a Competitive Bid Borrowing received by
it from the Company by sending such Lender a copy of the related Notice
of Competitive Bid Borrowing.




     (ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to the
Borrowers as part of such proposed Competitive Bid Borrowing at a rate or
rates of interest specified by such Lender in its sole discretion, by
notifying the Agent (which shall give prompt notice thereof to the
Company), (A) before 9:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances and (B) before 10:00 A.M.
(New York City time) three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances of the minimum amount and maximum amount
of each Competitive Bid Advance which such Lender would be willing to
make as part of such proposed Competitive Bid Borrowing (which amounts of
such proposed Competitive Bid may, subject to the proviso to the first
sentence of this Section 2.03(a), exceed such Lender’s Commitment, if
any), the rate or rates of interest therefor and such Lender’s Applicable
Lending Office with respect to such Competitive Bid Advance; provided
that if the Agent in its capacity as a Lender shall, in its sole
discretion, elect to make
any such offer, it shall notify the Company of such offer at least
30 minutes before the time and on the date on which notice of such
election is to be given to the Agent, by the other Lenders. If any
Lender shall elect not to make such an offer, such Lender shall so notify
the Agent before 10:00 A.M. (New York City time),



12









 






and such Lender shall
not be obligated to, and shall not, make any Competitive Bid Advance as
part of such Competitive Bid Borrowing; provided that the failure by any
Lender to give such notice shall not cause such Lender to be obligated to
make any Competitive Bid Advance as part of such proposed Competitive Bid
Borrowing.




     (iii) The Company shall, in turn, (A) before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances
and (B) before 11:00 A.M. (New York City time) three Business Days before
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, either:




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




     (y) accept for itself or on behalf of one or more Borrowers
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (ii) above, in its sole discretion, by giving notice to
the Agent of the amount of each Competitive Bid Advance (which
amount shall be equal to or greater than the minimum amount, and
equal to or less than the maximum amount, notified to the Company
by the Agent on behalf of such Lender for such Competitive Bid
Advance pursuant to paragraph (ii) above) to be made by each Lender
as part of such Competitive Bid Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above by giving
the Agent notice to that effect. The Company shall accept the
offers made by any Lender or Lenders to make Competitive Bid
Advances in order of the lowest to the highest rates of interest
offered by such Lenders. If two or more Lenders have offered the
same interest rate, the amount to be borrowed at such interest rate
will be allocated among such Lenders in proportion to the amount
that each such Lender offered at such interest rate.




     (iv) If the Company notifies the Agent that such Competitive Bid
Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Agent
shall give prompt notice thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.




     (v) If the Company accepts for itself or on behalf of one or more
Borrowers one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, the Agent shall in turn promptly
notify (A) each Lender that has made an offer as described in paragraph
(ii) above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Company, (B)
each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid Advance
to be made by such Lender as part of such Competitive Bid Borrowing, and
(C) each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, upon receipt, that the Agent has received
forms of documents appearing to fulfill the applicable conditions set
forth in Article III. Each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing shall, before 11:00
A.M. (New York City time) on the date of such Competitive Bid Borrowing
specified in the notice received from the Agent pursuant to clause (A) of
the preceding sentence or any later time when such Lender shall have
received notice from the Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable Lending Office
to the Agent at its address referred to in Section 8.02, in same day
funds, such Lender’s portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in Article III and
promptly after receipt by the Agent of such funds, the Agent will make
such funds available to the Borrowers at the location specified by the
Company in its Notice of Competitive Bid Borrowing. Promptly after each
Competitive Bid Borrowing the Agent will notify each Lender of the amount
of the Competitive Bid Borrowing, the
consequent Competitive Bid Reduction and the dates upon which such
Competitive Bid Reduction commenced and will terminate.



13









 






     (vi) If the Company notifies the Agent that it accepts for itself or
on behalf of one or more Borrowers one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, such notice of
acceptance shall be irrevocable and binding on the Borrowers. The
Borrowers shall jointly and severally indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure
to fulfill on or before the date specified in the related Notice of
Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Lender to fund the Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Advance, as a result of such failure,
is not made on such date.



          (b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrowers shall be
in compliance with the limitation set forth in the proviso to the first
sentence of subsection (a) above.



          (c) Within the limits and on the conditions set forth in this Section
2.03, the Borrowers may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.03, provided that a Competitive Bid Borrowing shall not be made within three
Business Days of the date of any other Competitive Bid Borrowing.



          (d) The Borrowers jointly and severally agree to repay to the Agent for
the account of each Lender that has made a Competitive Bid Advance, on the
maturity date of each Competitive Bid Advance (such maturity date being that
specified by the Company for repayment of such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of such Competitive
Bid Advance. The Borrowers shall have no right to prepay any principal amount
of any Competitive Bid Advance unless, and then only on the terms, specified by
the Company for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and set
forth in the Competitive Bid Note evidencing such Competitive Bid Advance.



          (e) The Borrowers jointly and severally agree to pay interest on the
unpaid principal amount of each Competitive Bid Advance from the date of such
Competitive Bid Advance to the date the principal amount of such Competitive
Bid Advance is repaid in full, at the rate of interest for such Competitive Bid
Advance specified by the Lender making such Competitive Bid Advance in its
notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by the Company for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as provided in the Competitive
Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and
during the continuance of an Event of Default, the Borrowers jointly and
severally agree to pay interest on the amount of unpaid principal of and
interest on each Competitive Bid Advance owing to a Lender, payable in arrears
on the date or dates interest is payable thereon, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Competitive Bid Advance under the terms of the Competitive Bid Note evidencing
such Competitive Bid Advance unless otherwise agreed in such Competitive Bid
Note.



          (f) The indebtedness of the Borrowers resulting from each Competitive Bid
Advance made to any Borrower as part of a Competitive Bid Borrowing shall be
evidenced by a separate Competitive Bid Note payable to the order of the Lender
making such Competitive Bid Advance.



          SECTION 2.04. Fees. (a) Facility Fee. The Borrowers jointly and
severally agree to pay to the Agent for the account of each Lender a facility
fee on the aggregate amount of such Lender’s Commitment from the Effective Date
in the case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender
until the Termination Date at a rate per annum equal to the Applicable
Percentage in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December, commencing June 30, 2004,
and on the Termination Date.



14









 





          (b) Agent’s Fees. The Borrowers jointly and severally agree to pay to the
Agent for its own account such fees as may from time to time be agreed between
the Company and the Agent.



          SECTION 2.05. Optional Termination or Reduction of the Commitments. The
Company shall have the right, upon at least three Business Days’ notice to the
Agent, to terminate in whole or permanently reduce ratably in part the unused
portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof and provided further that
the aggregate amount of the Commitments of the Lenders shall not be reduced to
an amount that is less than the aggregate principal amount of the Competitive
Bid Advances then outstanding.



          SECTION 2.06. Repayment of Revolving Credit Advances. The Borrowers
jointly and severally agree to repay to the Agent for the ratable account of
the Lenders on the Termination Date the aggregate principal amount of the
Revolving Credit Advances then outstanding.



          SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. The Borrowers jointly and severally agree to pay interest on the
unpaid principal amount of each Revolving Credit Advance owing to each Lender
from the date of such Revolving Credit Advance until such principal amount
shall be paid in full, at the following rates per annum:




     (i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Margin in effect from time to time plus (z) the
Applicable Utilization Fee in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance shall
be Converted or paid in full.




     (ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the sum of (x) the Eurodollar Rate for such Interest Period
for such Revolving Credit Advance plus (y) the Applicable Margin in
effect from time to time plus (z) the Applicable Utilization Fee in
effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period and on the date
such Eurodollar Rate Advance shall be Converted or paid in full.



          (b) Default Interest. Upon the occurrence and during the continuance of
an Event of Default, the Borrowers jointly and severally agree to pay interest
on (i) the unpaid principal amount of each Revolving Credit Advance owing to
each Lender, payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Revolving Credit Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable hereunder that is not
paid when due, from the date such amount shall be due until such amount shall
be paid in full, payable in arrears on the date such amount shall be paid in
full and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on Base Rate Advances pursuant to
clause (a)(i) above.



          SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of
determining each Eurodollar Rate and each LIBO Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Company and the
Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by
each Reference Bank for the purpose of determining the interest rate under
Section 2.07(a)(ii).



          (b) If, with respect to any Eurodollar Rate Advances, the Required Lenders
notify the Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Company and the
Lenders, whereupon (i) each Eurodollar Rate



15









 







Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert
Revolving Credit Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Company and the Lenders that the circumstances
causing such suspension no longer exist.



          (c) If the applicable Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of “Interest Period” in Section 1.01,
the Agent will forthwith so notify such Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest
Period therefor, be Converted into Base Rate Advances.



          (d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.



          (e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance
and (ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.



          (f) If Moneyline Telerate Markets Page 3750 is unavailable and fewer than
two Reference Banks furnish timely information to the Agent for determining the
Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances or LIBO Rate
Advances, as the case may be,




     (i) the Agent shall forthwith notify the Company and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances or LIBO Rate Advances, as the case may be,




     (ii) with respect to Eurodollar Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest Period
therefor, be prepaid by the Borrowers or, at the applicable Borrower’s
option, be automatically Converted into a Base Rate Advance (or if such
Advance is then a Base Rate Advance, will continue as a Base Rate
Advance), and




     (iii) the obligation of the Lenders to make Eurodollar Rate Advances
or LIBO Rate Advances or to Convert Revolving Credit Advances into
Eurodollar Rate Advances shall be suspended until the Agent shall notify
the Company and the Lenders that the circumstances causing such
suspension no longer exist.



          SECTION 2.09. Optional Conversion of Revolving Credit Advances. Any
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and
2.12, Convert all Revolving Credit Advances made to it of one Type comprising
the same Borrowing into Revolving Credit Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances into Base Rate
Advances shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar
Rate Advances shall be in an amount not less than the minimum amount specified
in Section 2.02(b) and no Conversion of any Revolving Credit Advances shall
result in more separate Revolving Credit Borrowings than permitted under
Section 2.02(b). Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Revolving Credit Advances to be Converted, and (iii) if such Conversion is into
Eurodollar Rate Advances, the duration of the initial Interest Period for each
such Advance. Each notice of Conversion shall be irrevocable and binding on
the applicable Borrower.



          SECTION 2.10. Prepayments of Revolving Credit Advances. The applicable
Borrower may, upon notice at least three Business Days’ prior to the date of
such prepayment, in the case of Eurodollar Rate Advances, and not later than
11:00 A.M. (New York City time) on the date of such prepayment, in the case of
Base Rate Advances, to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrowers
jointly and severally agree to, prepay the outstanding principal amount of the
Revolving Credit Advances comprising part of the same Revolving Credit
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however,



16









 







that (x) each partial prepayment shall be in an aggregate principal amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in
the event of any such prepayment of a Eurodollar Rate Advance, the Borrowers
shall be obligated, jointly and severally, to reimburse the Lenders in respect
thereof pursuant to Section 9.04(c).



          SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances or LIBO Rate
Advances (excluding for purposes of this Section 2.11 any such increased costs
resulting from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern)
and (ii) changes in the basis of taxation of overall net income or overall
gross income by the United States or by the foreign jurisdiction or state under
the laws of which such Lender is organized or has its Applicable Lending Office
or any political subdivision thereof), then the Borrowers shall from time to
time, upon demand by such Lender (with a copy of such demand to the Agent), pay
to the Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost. A certificate as to the amount
of such increased cost, submitted to the Borrowers and the Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest
error.



          (b) If any Lender determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of such Lender’s commitment to lend hereunder and
other commitments of this type, then, upon demand by such Lender (with a copy
of such demand to the Agent), the Borrowers shall pay to the Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender’s commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrowers and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.



          SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (b) the
obligation of the Lenders to make Eurodollar Rate Advances or LIBO Rate
Advances or to Convert Revolving Credit Advances into Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Company and the Lenders
that the circumstances causing such suspension no longer exist.



          SECTION 2.13. Payments and Computations. (a) The Borrowers shall make
each payment, irrespective of any right of counterclaim or set-off, hereunder
not later than 11:00 A.M. (New York City time) on the day when due to the Agent
at the Agent’s Account in same day funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or facility fees ratably (other than amounts payable pursuant to
Section 2.03, 2.11, 2.14 or 9.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment
of any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such
Assignment and Acceptance, the Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.



          (b) The Borrowers hereby authorize each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note
held by such Lender, to charge from time to time against any or all of the
Borrowers’ accounts with such Lender any amount so due.



17









 





          (c) All computations of interest based on the Base Rate shall be made by
the Agent on the basis of a year of 365 or 366 days, as the case may be, all
computations of interest based on the Eurodollar Rate, the LIBO Rate or the
Federal Funds Rate or in respect of Fixed Rate Advances and of facility fees
shall be made by the Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.



          (d) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.



          (e) Unless the Agent shall have received notice from the applicable
Borrower prior to the date on which any payment is due to the Lenders hereunder
that such Borrower will not make such payment in full, the Agent may assume
that such Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be distributed to
each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent such Borrower shall not have so made such payment
in full to the Agent, each Lender shall repay to the Agent forthwith on demand
such amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Agent, at the Federal Funds Rate.



          SECTION 2.14. Taxes. (a) Any and all payments by the Borrowers
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which
such Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender’s Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as “Taxes”). If any
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender or the Agent, (i) the sum
payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.14) such Lender or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the applicable Borrower shall make such deductions and (iii) the
applicable Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.



          (b) In addition, the Borrowers shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from
the execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as “Other
Taxes”).



          (c) The Borrowers shall jointly and severally indemnify each Lender and
the Agent for and hold it harmless against the full amount of Taxes or Other
Taxes (including, without limitation, taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.14) imposed on or paid by
such Lender or the Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be made within 30 days from the date such Lender or
the Agent (as the case may be) makes written demand therefor.



          (d) Within 30 days after the date of any payment of Taxes, the applicable
Borrower shall furnish to the Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing such payment.
In the case of any payment hereunder or under the Notes by or on behalf of such
Borrower through



18









 







an account or branch outside the United States or by or on
behalf of such Borrower by a payor that is not a United States person, if such
Borrower determines that no Taxes are payable in respect thereof, such Borrower
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, an opinion of counsel acceptable to the Agent stating that such
payment is exempt from Taxes. For purposes of this subsection (d) and
subsection (e), the terms “United States” and “United States person” shall have
the meanings specified in Section 7701 of the Internal Revenue Code.



          (e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assumption
Agreement or the Assignment and Acceptance pursuant to which it becomes a
Lender in the case of each other Lender, and from time to time thereafter as
requested in writing by the Company (but only so long as such Lender remains
lawfully able to do so), shall provide each of the Agent and the Company with
two original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate,
or any successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this Agreement or the
Notes. If the form provided by a Lender at the time such Lender first becomes
a party to this Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date
hereof by Internal Revenue Service form W-8BEN or W-8ECI, that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof
to the Company and shall not be obligated to include in such form or document
such confidential information.



          (f) For any period with respect to which a Lender has failed to provide
the Company with the appropriate form described in Section 2.14(e) (other than
if such failure is due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if such form otherwise
is not required under subsection (e) above), such Lender shall not be entitled
to indemnification under Section 2.14(a) or (c) with respect to Taxes imposed
by the United States by reason of such failure; provided, however, that should
a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrowers shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.



          (g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.



          SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.11, 2.14 or
9.04(c)) in excess of its ratable share of payments on account of the
Revolving Credit Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the Revolving
Credit Advances owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each Lender shall be
rescinded and such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to such
Lender’s ratable share (according to the proportion of (i) the amount of such
Lender’s required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrowers
agree that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-



19









 







off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrowers in the amount of such participation.



          SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrowers to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. The Borrowers agree that
upon notice by any Lender to the Borrowers (with a copy of such notice to the
Agent) to the effect that a Revolving Credit Note is required or appropriate in
order for such Lender to evidence (whether for purposes of pledge, enforcement
or otherwise) the Revolving Credit Advances owing to, or to be made by, such
Lender, the Borrowers shall promptly execute and deliver to such Lender a
Revolving Credit Note payable to the order of such Lender in a principal amount
up to the Commitment of such Lender.



          (b) The Register maintained by the Agent pursuant to Section 9.07(d) shall
include a control account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date and amount of each
Borrowing made hereunder, the Type of Advances comprising such Borrowing and,
if appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount of
any principal or interest due and payable or to become due and payable from
each Borrower to each Lender hereunder and (iv) the amount of any sum received
by the Agent from each Borrower hereunder and each Lender’s share thereof.



          (c) Entries made in good faith by the Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from the Borrowers
to, in the case of the Register, each Lender and, in the case of such account
or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the
Borrowers under this Agreement.



          SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrowers agree that they shall use such proceeds) solely
for general corporate purposes of the Borrowers.



ARTICLE III




CONDITIONS TO EFFECTIVENESS AND LENDING




          SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and
as of the first date (the “Effective Date”) on which the following conditions
precedent have been satisfied:




     (a) There shall have occurred no Material Adverse Change since
December 31, 2003.




     (b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect other than
the matters described on Schedule 3.01(b) hereto (the “Disclosed
Litigation”) or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there shall have been no adverse
change in the status, or financial effect on the Company or any of its
Subsidiaries, of the Disclosed Litigation from that described on Schedule
3.01(b) hereto.




     (c) Nothing shall have come to the attention of the Lenders during
the course of their due diligence investigation to lead them reasonably
to believe that the Information Memorandum was or has become misleading,
incorrect or incomplete in any material respect; without limiting the
generality of the



20









 







foregoing, the Lenders shall have been given such
access to the management, records, books of account, contracts and
properties of the Company and its Subsidiaries as they shall have
reasonably requested.




     (d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are not
reasonably acceptable to the Lenders) and shall remain in effect, and no
law or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse conditions
upon the transactions contemplated hereby.




     (e) The Initial Borrowers shall have notified each Lender and the
Agent in writing as to the proposed Effective Date.




     (f) The Initial Borrowers shall have paid all accrued fees and
expenses of the Agent and the Lenders (including the accrued fees and
expenses of counsel to the Agent).




     (g) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of each Initial Borrower,
dated the Effective Date, stating that:




     (i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and




     (ii) No event has occurred and is continuing that constitutes
a Default.




     (h) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to
the Agent and (except for the Revolving Credit Notes) in sufficient
copies for each Lender:




     (i) The Revolving Credit Notes to the order of the Lenders to
the extent requested by any Lender pursuant to Section 2.16.




     (ii) Certified copies of the resolutions of the Board of
Directors of each Initial Borrower approving this Agreement and the
Notes, and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this
Agreement and the Notes.




     (iii) A certificate of the Secretary or an Assistant Secretary
of each Initial Borrower certifying the names and true signatures
of the officers of such Borrower authorized to sign this Agreement
and the Notes and the other documents to be delivered hereunder.




     (iv) A favorable opinion of Timothy Power, Assistant General
Counsel for the Company, substantially in the form of Exhibit D
hereto and as to such other matters as any Lender through the Agent
may reasonably request.




     (v) A favorable opinion of Shearman & Sterling LLP, counsel
for the Agent, in form and substance satisfactory to the Agent.




     (i) The Borrower shall have terminated the commitments, and paid in
full all Debt, interest, fees and other amounts outstanding, under the
Amended and Restated 364-Day Credit Agreement dated as April 17, 2003, as
amended, among the Company, the lenders parties thereto and Citibank, as
agent, and each of the Lenders that is a party to such credit facility
hereby waives, upon execution of this Agreement, any notice required by
said Credit Agreement relating to the termination of commitments
thereunder.



21









 





          SECTION 3.02. Conditions Precedent to the Initial Borrowing of Each
Designated Subsidiary. The obligation of each Lender to make an initial
Revolving Credit Advance to each Designated Subsidiary following its
designation as a Borrower hereunder pursuant to Section 9.08 on the occasion of
the initial Borrowing thereby is subject to the Agent’s receipt on or before
the date of such initial Borrowing of each of the following, in form and
substance satisfactory to the Agent and dated such date:




     (a) The Designation Letter of such Designated Subsidiary, in
substantially the form of Exhibit E hereto.




     (b) A Revolving Credit Note of such Designated Subsidiary to the
extent requested by any Lender pursuant to Section 2.16.




     (c) A certificate of the Secretary or an Assistant Secretary (or
person performing similar functions) of such Designated Subsidiary
certifying (A) appropriate resolutions of the board of directors (or
persons performing similar functions) of such Designated Subsidiary
approving this Agreement and its Notes, and all documents evidencing
other necessary corporate (or equivalent) action and governmental
approvals, if any, with respect to this Agreement and its Notes (copies
of which shall be attached thereto), and (B) the names and true
signatures of the officers of such Designated Subsidiary authorized to
sign the Designation Letter of such Designated Subsidiary and its Notes
and the other documents to be delivered by such Designated Subsidiary
hereunder.




     (d) A favorable opinion of counsel for such Designated Subsidiary
reasonably acceptable to the Agent, in substantially the form of Exhibit
D hereto with modifications appropriate to such Designated Subsidiary,
and addressing such other matters as any Lender through the Agent may
reasonably request.




     (e) Such other documents, opinions and other information as any
Lender, through the Agent, may reasonably request.



          SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing.
The obligation of each Lender to make a Revolving Credit Advance on the
occasion of each Revolving Credit Borrowing shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Revolving Credit Borrowing (a) the following statements shall be true (and each
of the giving of the applicable Notice of Revolving Credit Borrowing and the
acceptance by the applicable Borrower of the proceeds of such Revolving Credit
Borrowing shall constitute a representation and warranty by such Borrower that
on the date of such Borrowing such statements are true):




     (i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f)(i) thereof) are correct on and as
of such date, before and after giving effect to such Revolving
Credit Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, and




     (ii) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;


and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.




          SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing.
The obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (ii) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing,
the Agent shall have received a Competitive Bid Note payable to the order of
such Lender for each of the one or more Competitive Bid Advances to be made by
such Lender as part of such Competitive Bid Borrowing, in a principal amount
equal to the principal amount of the Competitive Bid Advance to be evidenced
thereby and



22









 







otherwise on such terms as were agreed to for such Competitive Bid
Advance in accordance with Section 2.03, and (iii) on the date of such
Competitive Bid Borrowing the following statements shall be true (and each of
the giving of the applicable Notice of Competitive Bid Borrowing and the
acceptance by the applicable Borrower of the proceeds of such Competitive Bid
Borrowing shall constitute a representation and warranty by such Borrower that
on the date of such Competitive Bid Borrowing such statements are true):




     (a) the representations and warranties contained in Section 4.01 are
correct on and as of the date of such Competitive Bid Borrowing, before
and after giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date,




     (b) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default, and




     (c) no event has occurred and no circumstance exists as a result of
which the information concerning the Borrowers that has been provided to
the Agent and each Lender by the Borrowers in connection herewith would
include an untrue statement of a material fact or omit to state any
material fact or any fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made,
not misleading.



          SECTION 3.05. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that
the Borrowers, by notice to the Lenders, designate as the proposed Effective
Date, specifying its objection thereto. The Agent shall promptly notify the
Lenders of the occurrence of the Effective Date.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES




          SECTION 4.01. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:




     (a) Such Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the state of its organization.




     (b) The execution, delivery and performance by such Borrower of this
Agreement and the Notes to be delivered by it, and the consummation of
the transactions contemplated hereby, are within such Borrower’s
corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) such Borrower’s charter or by-laws or
(ii) law or any contractual restriction binding on or affecting such
Borrower.




     (c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery and
performance by such Borrower of this Agreement or the Notes to be
delivered by it.




     (d) This Agreement has been, and each of the Notes to be delivered
by it when delivered hereunder will have been, duly executed and
delivered by such Borrower. This Agreement is, and each of the Notes
when delivered hereunder will be, the legal, valid and binding obligation
of such Borrower enforceable against such Borrower in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles.



23









 






     (e) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 2003, and the related Consolidated
statements of income and cash flows of the Company and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Ernst &
Young LLP, independent public accountants, copies of which have been
furnished to each Lender, fairly present the Consolidated financial
condition of the Company and its Subsidiaries as at such date and the
Consolidated results of the operations of the Company and its
Subsidiaries for the period ended on such date, all in accordance with
generally accepted accounting principles consistently applied. Since
December 31, 2003, there has been no Material Adverse Change.




     (f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any
Environmental Action, affecting the Company or any of its Subsidiaries
before any court, governmental agency or arbitrator that (i) would be
reasonably likely to have a Material Adverse Effect (other than the
Disclosed Litigation) or (ii) purports to affect the legality, validity
or enforceability of this Agreement or any Note or the consummation of
the transactions contemplated hereby, and there has been no adverse
change in the status, or financial effect on the Company or any of its
Subsidiaries, of the Disclosed Litigation from that described on Schedule
3.01(b) hereto.




     (g) No information, exhibit or report furnished by the Company or
any of its Subsidiaries to the Agent or to any Lender in connection with
the negotiation of, or compliance with, the Loan Documents contained any
material misstatement of fact or omitted to state a material fact or any
fact necessary to make the statements contained therein not misleading.




     (h) Each Borrower and its Subsidiaries are in compliance with
Regulations T, U and X. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrowers
and their Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder.




     (i) Neither any Borrower nor any of its Subsidiaries is a party to
any agreement or instrument or subject to any charter or other corporate
restriction which could reasonably be expected to have a Material Adverse
Effect. Neither any Borrower nor any of its Subsidiaries is in default
in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement to which it is a
party, which default could reasonably be expected to have a Material
Adverse Effect.




     (j) The Borrowers and their Subsidiaries have complied with all
applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof
having jurisdiction over the conduct of their respective businesses or
the ownership of their
respective property, except for any failure to comply with any of
the foregoing which could not reasonably be expected to have a Material
Adverse Effect.




     (k) On the date of this Agreement, the Borrowers and their
Subsidiaries have good title, free of all Liens other than those
permitted by Section 5.02(a) to all of the property and assets reflected
in the Company’s most recent consolidated financial statements provided
to the Agent as owned by the Borrowers and their Subsidiaries.




     (l) Each Borrower and each of its Subsidiaries owns or possesses all
material patents, trademarks, trade names, service marks, copyright,
licenses and rights with respect to the foregoing necessary for the
future conduct of its business, without any known material conflict with
the rights of others.




     (m) In the ordinary course of its business, the officers of the
Company consider the effect of Environmental Laws on the business of the
Borrowers, in the course of which they identify and evaluate potential
risks and liabilities accruing to the Borrowers and their Subsidiaries
due to Environmental Laws. On the basis of this consideration, the
Company has concluded that Environmental laws cannot reasonably



24









 







be
expected to have a Material Adverse Effect. Except as disclosed on
Schedule 3.01(b) hereto, neither any Borrower nor any of its Subsidiaries
has received any notice to the effect that its operations are not in
material compliance with any of the requirements of applicable
Environmental Laws or are the subject of any foreign or domestic,
federal, state or local investigation evaluating whether any remedial
action is needed to respond to a release of any toxic or hazardous waste
or substance into the environment, which non-compliance or remedial
action could reasonably be expected to have a Material Adverse Effect.




     (n) Neither any Borrower nor any of its Subsidiaries is an
“investment company” or a company “controlled” by and “investment
company” or an “affiliated person” thereof or an “affiliated person” of
such affiliated person, in each case within the meaning of the Investment
Company Act of 1940, as amended.




     (o) Neither any Borrower nor any of its Subsidiaries 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.




     (p) The Borrowers have disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of
their Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. Neither the Information Memorandum nor any
of the other reports, financial statements, certificates or other
information furnished by or on behalf of the Borrowers to the Agent or
any Lender in connection with the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state
any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that, with respect to projected financial information, the Borrowers
represent only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.



ARTICLE V




COVENANTS




          SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, each Borrower will:




     (a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and Environmental Laws,
which, if violated, could reasonably be expected to have a Material
Adverse Effect.




     (b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
that neither such Borrower nor any of its Subsidiaries shall be required
to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.




     (c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which such
Borrower or such Subsidiary operates.



25









 






     (d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that such Borrower and its Subsidiaries may consummate
any merger or consolidation permitted under Section 5.02(b) and provided
further that neither such Borrower nor any of its Subsidiaries shall be
required to preserve any right or franchise if the Board of Directors of
such Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of such
Borrower or such Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to such Borrower,
such Subsidiary or the Lenders.




     (e) Visitation Rights. At any reasonable time and from time to
time, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, such
Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of such Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent certified
public accountants.




     (f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.




     (g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.




     (h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to such Borrower or such Subsidiary than
it would obtain in a comparable arm’s-length transaction with a Person
not an Affiliate.




     (i) Conduct of Business. Carry on and conduct its business, and
cause each of its Subsidiaries to carry on and conduct its business, in
substantially the same manner and in substantially the same fields of
enterprise as it is presently conducted or lines of business reasonably
related thereto.




     (j) Reporting Requirements. The Company shall furnish to the
Lenders:




     (i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of
the Company, the Consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and Consolidated
statements of income
and cash flows of the Company and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the chief financial officer of the Company as
having been prepared in accordance with generally accepted
accounting principles and certificates of the chief financial
officer of the Company as to compliance with the terms of this
Agreement and setting forth in reasonable detail the calculations
necessary to demonstrate compliance with Section 5.03, provided
that in the event of any change in GAAP used in the preparation of
such financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements to
GAAP;




     (ii) as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, a copy of the
annual audit report for such year for the Company and its
Subsidiaries, containing the Consolidated balance sheet of the
Company and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the Company and
its Subsidiaries for such fiscal year, in each case accompanied by
an opinion acceptable to the Required Lenders by Ernst & Young LLP
or other independent public accountants acceptable to



26









 






the Required
Lenders, provided that in the event of any change in GAAP used in
the preparation of such financial statements, the Company shall
also provide, if necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;




     (iii) as soon as possible and in any event within five days
after the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the
Company setting forth details of such Default and the action that
the Borrowers have taken and propose to take with respect thereto;




     (iv) promptly after the sending or filing thereof, copies of
all reports that any Borrower sends to any of its securityholders,
and copies of all reports and registration statements that any
Borrower or any Subsidiary files with the Securities and Exchange
Commission or any national securities exchange;




     (v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Company or any of its Subsidiaries of the
type described in Section 4.01(f);




     (vi) not later than August 31 of each year, notice of all
Significant Subsidiaries of the Company determined by reference to
the Company’s financial position as of December 31 of the
immediately preceding calendar year; and




     (vii) such other information respecting the Company or any of
its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.




Reports and financial statements required to be delivered by Company
pursuant to clauses (i), (ii) and (iv) of this subsection (j) shall be
deemed to have been delivered on the date on which the Company posts such
reports, or reports containing such financial statements, on its website
on the Internet at www.lafarge-na.com, at www.sec.gov or at such other
website identified by the Company in a notice to the Agent and the
Lenders and that is accessible by the Lenders without charge; provided
that the Company shall deliver paper copies of such information to any
Lender promptly upon request of such Lender through the Agent and
provided further that the Lenders shall be deemed to have received the
information specified in clauses (i), (ii) and (iv) of this subsection
(j) on the date (x) such information is posted at the website of the
Agent identified from time to time by the Agent to the Lenders and the
Company and (y) such posting is notified to the Lenders (it being
understood that the Company shall have satisfied the timing obligations
imposed by those clauses as of the date such information is delivered to
the Agent).




     (k) Additional Borrowers. Not later than 30 days after the delivery
of the notice required to be delivered pursuant to Section 5.01(j)(vi),
designate each Significant Subsidiary that is organized under the laws of
a jurisdiction in the United States and is not prior to such date a
Borrower under this Agreement to become a Designated Subsidiary in
accordance with Section 9.08; provided that Sierra Bay Receivables, Inc.,
a Nevada corporation, shall not be required to become a Borrower under
this Agreement.



          SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, no Borrower will:




     (a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to receive
income, other than:




     (i) Permitted Liens,



27









 






     (ii) purchase money Liens upon or in any assets acquired or
held by such Borrower or any Subsidiary in the ordinary course of
business to secure the purchase price of such assets or to secure
Debt incurred solely for the purpose of financing the acquisition
of such assets, or Liens existing on such assets at the time of its
acquisition (other than any such Liens created in contemplation of
such acquisition that were not incurred to finance the acquisition
of such assets) or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount, provided, however,
that no such Lien shall extend to or cover any assets of any
character other than the assets being acquired, and no such
extension, renewal or replacement shall extend to or cover any
assets not theretofore subject to the Lien being extended, renewed
or replaced,




     (iii) the Liens existing on the Effective Date and described
on Schedule 5.02(a) hereto,




     (iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with such Borrower or any
Subsidiary of such Borrower or becomes a Subsidiary of such
Borrower; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do
not extend to any assets other than those of the Person so merged
into or consolidated with such Borrower or such Subsidiary or
acquired by such Borrower or such Subsidiary,




     (v) Liens on cash and cash equivalents securing obligations
under Hedge Agreements, provided that the aggregate amount of cash
and cash equivalents subject to such Liens shall not exceed
$5,000,000 at any time outstanding,




     (vi) without duplication of clause (ii) above, Liens, if any,
arising in connection with receivables securitization programs, in
any aggregate principal amount not to exceed $300,000,000 at any
time outstanding (for purposes of this clause (vi), the “principal
amount” of a receivables securitization program shall mean the
amounts invested by investors that are not Affiliates of the
Company in connection with a receivables securitization program and
paid to the Company or any of its Subsidiaries, as reduced by the
aggregate amounts received by such investors from the payment of
receivables and applied to reduce such invested amounts),




     (vii) other Liens securing Debt in an aggregate principal
amount not to exceed $50,000,000 at any time outstanding, and




     (viii) the replacement, extension or renewal of any Lien
permitted by clause (ii), (iii) or (iv) above upon or in the same
property theretofore subject thereto or the replacement, extension
or renewal (without increase in the amount or change in any direct
or contingent obligor) of the Debt secured thereby.




     (b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to, any Person, or permit any of its
Subsidiaries to do so, except that any Subsidiary of the Company may
merge or consolidate with or into, or dispose of assets to, any other
Subsidiary of the Company, and except that any Subsidiary of the Company
may merge into or dispose of assets to the Company, provided, in each
case, that no Default shall have occurred and be continuing at the time
of such proposed transaction or would result therefrom.




     (c) Subsidiary Debt. The Company shall not permit any of its
Subsidiaries to incur or at any time be liable with respect to any Debt
or to issue or have outstanding any preferred stock, except:




     (i) Debt under this Agreement or any
Notes;




     (ii) Debt or preferred stock outstanding
on the date hereof,



28









 






     (iii) Debt or preferred stock of a Subsidiary issued to and
held by the Company or a wholly-owned Subsidiary of the Company,




     (iv) Debt or preferred stock of any corporation existing at
the time such corporation becomes a Subsidiary of the Company and
not created in contemplation of such event,




     (v) Invested Amounts not to exceed $250,000,000 at any time
outstanding,




     (vi) refinancing, extension, renewal or refunding of any Debt
or preferred stock permitted by the foregoing clauses (ii) though
(iv), and




     (vii) other Debt or preferred stock in an aggregate principal
amount not to exceed $250,000,000 at any time outstanding.




     (d) Hedge Agreements. Enter into, or permit any of its Subsidiaries
to enter into, any Hedge Agreements other than Hedge Agreements pursuant
to which such Borrower or any Subsidiary has hedged its reasonably
estimated interest rate, foreign currency or commodity exposure.



          SECTION 5.03. Financial Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Company will:




     (a) Leverage Ratio. Maintain a ratio of Consolidated Debt to
Consolidated Debt plus shareholders’ equity of not greater than 0.50 :
1.00:




     (b) Fixed Charge Coverage Ratio. Maintain, as of the last day of
each fiscal quarter, a ratio of Consolidated EBITDA of the Company and
its Subsidiaries for the period of four fiscal quarters then ended to
interest payable on, and amortization of debt discount in respect of, all
Debt during such period by the Company and its Subsidiaries of not less
than 3.0 : 1.0.



ARTICLE VI




EVENTS OF DEFAULT




          SECTION 6.01. Events of Default. If any of the following events (“Events
of Default”) shall occur and be continuing:




     (a) Any Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable; or any Borrower shall fail to pay any
interest on any Advance or make any other payment of
fees or other amounts payable under this Agreement or any Note
within three Business Days after the same becomes due and payable; or




     (b) Any representation or warranty made by any Borrower herein or by
any Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or




     (c) (i) Any Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e), (h) or (j), 5.02
or 5.03 on its part to be performed or observed, or (ii) any Borrower
shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed if
such failure shall remain unremedied for 30 days after written notice
thereof shall have been given to such Borrower by the Agent or any
Lender; or




     (d) Any Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $15,000,000 in the



29









 







aggregate
(but excluding Debt outstanding hereunder) of such Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such
Debt shall be declared to be due and payable, or required to be prepaid
or redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case
prior to the stated maturity thereof; or




     (e) The Company or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Company or any of its Significant
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or for
any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60 days,
or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or
for any substantial part of its property) shall occur; or the Company or
any of its Significant Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or




     (f) Judgments or orders for the payment of money in excess of
$15,000,000 in the aggregate shall be rendered against any Borrower or
any of its Subsidiaries and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or




     (g) Lafarge S.A. shall own directly or indirectly 50% or less of the
outstanding shares of Voting Stock of the Company on a fully diluted
basis; or the Company shall own directly or indirectly 50% or less of the
outstanding shares of Voting Stock of any Borrower on a fully diluted
basis; or




     (h) The Company or any of its ERISA Affiliates shall incur, or shall
be reasonably likely to incur liability as a result of one or more of the
following that, individually or in the aggregate, could reasonably be
likely to have a Material Adverse Effect: (i) the occurrence of any
ERISA Event; (ii) the
partial or complete withdrawal of the Company or any of its ERISA
Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan;


then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrowers, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by each Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
any Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances shall automatically be terminated and (B) the Advances,
all such interest and all such amounts shall automatically become and be due
and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by each Borrower.




ARTICLE VII




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JOINT AND SEVERAL OBLIGATIONS




          SECTION 7.01. Obligations Joint and Several. (a) Each Borrower hereby
absolutely, unconditionally and irrevocably agrees that all obligations of any
Borrower hereunder, now or hereafter existing under or in respect of this
Agreement and the Notes (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes
of action, costs, expenses or otherwise (all such obligations, the
“Obligations”), shall be joint and several obligations of all the Borrowers,
and agrees to pay any and all expenses (including, without limitation, fees and
expenses of counsel) incurred by the Agent or any Lender in enforcing any
rights under this Agreement or any Note. Without limiting the generality of
the foregoing, each Borrower’s liability shall extend to all amounts that
constitute part of the Obligations and would be owed by any other Borrower to
the Agent or any Lender under or in respect of this Agreement or the Notes but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other
Borrower.



          (b) Each Borrower, and by its acceptance of this Agreement, the Agent and
each Lender, hereby confirms that it is the intention of all such Persons that
this Article VII and the Obligations of each Borrower hereunder not constitute
a fraudulent transfer or conveyance for purposes of Bankruptcy Law (as
hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Article VII and the Obligations of each Borrower
hereunder. To effectuate the foregoing intention, the Agent, the Lenders and
the Borrowers hereby irrevocably agree that the Obligations of each Borrower
under this Article VII at any time shall be limited to the maximum amount as
will result in the Obligations of such Borrower under this Article VII not
constituting a fraudulent transfer or conveyance. For purposes hereof,
“Bankruptcy Law” means any proceeding of the type referred to in Section
6.01(e) of this Agreement or Title 11, U.S. Code, or any similar foreign,
federal or state law for the relief of debtors.



          (c) Each Borrower hereby unconditionally and irrevocably agrees that in
the event any payment shall be required to be made to any Lender under this
Agreement or any Note, such Borrower will contribute, to the maximum extent
permitted by law, such amounts to each other Borrower so as to maximize the
aggregate amount paid to the Lenders under or in respect of this Agreement and
the Notes.



          SECTION 7.02. Joint and Several Nature of Obligations Absolute. Each
Borrower agrees that this Article VII will be observed strictly in accordance
with its terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of the terms of this Article VII or
the rights of any Lender with respect thereto. The Obligations of each
Borrower under or in respect of this Agreement are independent of the
Obligations of any other Borrower under or in respect of this Agreement or the
Notes, and a separate action or actions may be brought and prosecuted
against each Borrower to enforce this Agreement, irrespective of whether
any action is brought against any other Borrower or whether any other Borrower
is joined in any such action or actions. The liability of each Borrower under
this Article VII shall be irrevocable, absolute and unconditional irrespective
of, and each Borrower hereby irrevocably waives, to the fullest extent
permitted by law, any defenses it may now have or hereafter acquire in any way
relating to, any or all of the following:



          (a) any lack of validity or enforceability of this Agreement or any Note
or any agreement or instrument relating thereto;



          (b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Obligations or any other obligations of any Borrower
under or in respect of this Agreement or the Notes, or any other amendment or
waiver of or any consent to departure from this Agreement or any Note,
including, without limitation, any increase in the Obligations resulting from
the extension of additional credit to any Borrower or any of its Subsidiaries
or otherwise;



          (c) any change, restructuring or termination of the corporate structure or
existence of any Borrower or any of its Subsidiaries;



31









 





          (d) any failure of any Lender to disclose to any Borrower any information
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Borrower now or hereafter
known to such Lender (each Borrower waiving any duty on the part of the Lenders
to disclose such information);



          (e) the failure of any other Person to execute or deliver this Agreement,
any Credit Agreement Supplement (as hereinafter defined) or any other guaranty
or agreement or the release or reduction of liability of any Borrower with
respect to the Obligations; or



          (f) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by any
Lender that might otherwise constitute a defense available to, or a discharge
of, any Borrower.



          This Article VII shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Obligations is rescinded or
must otherwise be returned by any Lender or any other Person upon the
insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as
though such payment had not been made.



          SECTION 7.03. Waivers and Acknowledgments. (a) Each Borrower hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Obligations and this Article VII and any requirement that any Lender
exhaust any right or take any action against any other Borrower or any other
Person.



          (b) Each Borrower hereby unconditionally and irrevocably waives any right
to revoke this Article VII and acknowledges that this Article VII is continuing
in nature and applies to all Obligations, whether existing now or in the
future.



          (c) Each Borrower hereby unconditionally and irrevocably waives (i) any
defense arising by reason of any claim or defense based upon an election of
remedies by any Lender that in any manner impairs, reduces, releases of
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Borrower or other rights of such
Borrower to proceed against any of the other Borrowers or any other Person and
(ii) any defense based on any right of set-off or counterclaim against or in
respect of the Obligations of such Borrower hereunder.



          (d) Each Borrower hereby unconditionally and irrevocably waives any duty
on the part of any Lender to disclose to such Borrower any matter, fact or
thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other
Borrower now or hereafter known by such Lender.



          (e) Each Borrower acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by this
Agreement and the Notes and that the waivers set forth in this Article VII are
knowingly made in contemplation of such benefits. Each Borrower further
acknowledges that it has, independently and without reliance upon any Lender
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement, including
the provisions of this Article VII, and the Notes to which it is or is to be a
party, and such Borrower has established adequate means of obtaining from each
other Borrower on a continuing basis information pertaining to, and is now and
on a continuing basis will be completely familiar with, the business, condition
(financial or otherwise), operations, performance, properties and prospects of
such other Borrower.



          SECTION 7.04. Subrogation. Each Borrower hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against any other Borrower that arise from the existence, payment,
performance or enforcement of such Borrower’s Obligations under or in respect
of this Agreement or the Notes, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of any Lender against any other
Borrower, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law,



32









 







including, without limitation, the right to
take or receive from any other Borrower, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Obligations
and all other amounts payable under this Agreement and the Notes shall have
been paid in full and the Commitments shall have expired or been terminated.
If any amount shall be paid to any Borrower in violation of the immediately
preceding sentence at any time prior to the later of (a) the payment in full in
cash of all the Obligations and all other amounts payable under this Agreement
and the Notes and (b) the Termination Date, such amount shall be received and
held in trust for the benefit of the Lenders, shall be segregated from other
property and funds of such Borrower and shall forthwith be paid or delivered to
the Agent in the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Obligations and all other amounts
payable under this Agreement and the Notes, whether matured or unmatured, in
accordance with the terms of this Agreement. If (i) any Borrower shall make
payment to any Lender of all or any part of the Obligations, (ii) all of the
Obligations and all other amounts payable under this Agreement and the Notes
shall have been paid in full in cash and (iii) the Termination Date shall have
occurred, the Lenders will, at such Borrower’s request and expense, execute and
deliver to such Borrower appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation
to such Borrower of an interest in the Obligations resulting from such payment
made by such Borrower pursuant to this Agreement.



          SECTION 7.05. Continuing Obligations. Without prejudice to the survival
of any of the other agreements of any Borrower under this Agreement or any
Note, the agreements and obligations of each Borrower contained in Section 7.01
(with respect to enforcement expenses), the last sentence of Section 7.02 and
this Section 7.05 shall survive the payment in full of the Obligations and all
of the other amounts payable under this Agreement and the Notes.



ARTICLE VIII




THE AGENT




          SECTION 8.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent
by the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions
of the Required Lenders, and such instructions
shall be binding upon all Lenders and all holders of Notes; provided,
however, that the Agent shall not be required to take any action that exposes
the Agent to personal liability or that is contrary to this Agreement or
applicable law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by any Borrower pursuant to the terms of this Agreement.



          SECTION 8.02. Agent’s Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may
treat the Lender that made any Advance as the holder of the Debt resulting
therefrom until the Agent receives and accepts an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 9.07; (ii) may consult with legal counsel
(including counsel for the Borrowers), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of any Borrower or to inspect the property (including the
books and records) of any Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in
respect of this Agreement by acting



33









 







upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier) believed by it to be
genuine and signed or sent by the proper party or parties.



          SECTION 8.03. Citibank and Affiliates. With respect to its Commitment,
the Advances made by it and the Note issued to it, Citibank shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated, include Citibank in its individual
capacity. Citibank and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, accept investment banking engagements from
and generally engage in any kind of business with, any Borrower, any Subsidiary
of any Borrower and any Person who may do business with or own securities of
any Borrower or any such Subsidiary, all as if Citibank were not the Agent and
without any duty to account therefor to the Lenders.



          SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.



          SECTION 8.05. Indemnification. The Lenders agree to indemnify the Agent
(to the extent not reimbursed by the Borrowers), ratably according to the
respective principal amounts of the Revolving Credit Advances then owed to each
of them (or if no Revolving Credit Advances are at the time outstanding,
ratably according to the respective amounts of their Commitments), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any action
taken or omitted by the Agent under this Agreement (collectively, the
“Indemnified Costs”), provided that no Lender shall be liable for any portion
of the Indemnified Costs resulting from the Agent’s gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including reasonable counsel fees) incurred by the
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrowers. In the case of any
investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 8.05 applies
whether any such investigation, litigation or proceeding is brought by the
Agent, any Lender or a third party.



          SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrowers and may be
removed at any time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent’s giving of notice of resignation or the Required
Lenders’ removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent’s resignation or removal hereunder as
Agent, the provisions of this Article VII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.



          SECTION 8.07. Other Agents. Each Lender and each Borrower hereby
acknowledges that none of the syndication agent, the joint arrangers and joint
bookrunners nor any other Lender designated as any “Agent” on the signature
pages hereof (other than the Agent) has any liability hereunder other than in
its capacity as a Lender.



34









 





ARTICLE IX




MISCELLANEOUS




          SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Revolving Credit Notes, nor consent to any departure
by any Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or
consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive any of the conditions specified in Section 3.01, (b)
increase the Commitments of the Lenders or subject the Lenders to any
additional obligations, (c) reduce or subordinate the principal of, or interest
on, the Revolving Credit Advances or any fees or other amounts payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the Revolving Credit Advances or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Revolving Credit Advances that shall be required
for the Lenders or any of them to take any action hereunder or (f) amend this
Section 9.01; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the Agent under this
Agreement or any Note.



          SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier
communication) and mailed, telecopied or delivered or (y) to the extent set
forth in Section 9.02(b) and in the proviso to this Section 9.02(a), by
electronic mail confirmed immediately in writing, if to any Borrower, c/o the
Company at its address at 12950 Worldgate Drive, Herndon, Virginia 20170,
Attention: Treasurer; if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at
its Domestic Lending Office specified in the Assignment and Acceptance pursuant
to which it became a Lender; and if to the Agent, at its address at Two Penns
Way, New Castle, Delaware 19720, Attention: Bank Loan Syndications Department;
or, as to any Borrower or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrowers and the Agent; provided that materials
required to be delivered pursuant to Section 5.01(j)(i), (ii) and (iv) shall be
delivered to the Agent as specified in Section 9.02(b) or as otherwise
specified to the Company by the Agent. All such notices and communications
shall, when mailed, telecopied or e-mailed, be effective when deposited in the
mails, telecopied or confirmed by e-mail, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of
any Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.



          (b) Materials required to be delivered pursuant to Section 5.01(j)(i),
(ii) and (iv) shall be delivered to the Agent in an electronic medium in a
format acceptable to the Agent by e-mail at oploanswebadmin@citigroup.com. The
Company agrees that the Agent may make such materials, as well as any other
written information, documents, instruments and other material relating to the
Company, any of its Subsidiaries or any other materials or matters relating to
this Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the “Communications”) available to the Lenders by posting such
notices on Intralinks, “e-Disclosure”, the Agent’s internet delivery system
that is part of Fixed Income Direct, Global Fixed Income’s primary web portal,
or a substantially similar electronic system (the “Platform”). The Borrower
acknowledges that (i) the distribution of material through an electronic medium
is not necessarily secure and that there are confidentiality and other risks
associated with such distribution, (ii) the Platform is provided “as is” and
“as available” and (iii) neither the Agent nor any of its Affiliates warrants
the accuracy, adequacy or completeness of the Communications or the Platform
and each expressly disclaims liability for errors or omissions in the
Communications or the Platform. No warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by the Agent or any of its
Affiliates in connection with the Platform.



          (c) Each Lender agrees that notice to it (as provided in the next
sentence) (a “Notice”) specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such



35









 







information, documents
or other materials to such Lender for purposes of this Agreement. Each Lender
agrees (i) to notify the Agent in writing of such Lender’s e-mail address to
which a Notice may be sent by electronic transmission (including by electronic
communication) on or before the date such Lender becomes a party to this
Agreement (and from time to time thereafter to ensure that the Agent has on
record an effective e-mail address for such Lender) and (ii) that any Notice
may be sent to such e-mail address.



          (d) Notwithstanding anything to the contrary contained in this Agreement
or any Note, (i) any notice to the Borrowers or to any one of them required
under this Agreement or any such Note that is delivered to the Company shall
constitute effective notice to the Borrowers or to any such Borrower, including
the Company and (ii) any Notice of Borrowing or any notice of Conversion
delivered pursuant to Section 2.08 may be delivered by any Borrower or by the
Company, on behalf of any other Borrower. Each Initial Borrower (other than
the Company) and each Designated Subsidiary hereby irrevocably appoints the
Company as its authorized agent to receive and deliver notices in accordance
with this Section 9.02, and hereby irrevocably agrees that (A) in the case of
clause (i) of the immediately preceding sentence, the failure of the Company to
give any notice referred to therein to any such Initial Borrower or any such
Designated Subsidiary, as the case may be, to which such notice applies shall
not impair or affect the validity of such notice with respect thereto and (B)
in the case of clause (ii) of the immediately preceding sentence, the delivery
of any such notice by the Company, on behalf of any other Borrower, shall be
binding on such other Borrower to the same extent as if such notice had been
executed and delivered directly by such Borrower.



          SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender
or the Agent to exercise, and no delay in exercising, any right hereunder or
under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.



          SECTION 9.04. Costs and Expenses. (a) The Borrowers agree jointly and
severally to pay on demand all costs and expenses of the Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, (A) all due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with
respect to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrowers further agree jointly and severally to pay on demand
all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable counsel fees and expenses), in connection
with the enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, reasonable fees and expenses of
counsel for the Agent and each Lender in connection with the enforcement of
rights under this Section 9.04(a).



          (b) The Borrowers agree jointly and severally to indemnify and hold
harmless the Agent and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an “Indemnified
Party”) from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) (i) the Notes,
this Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Company or any of its
Subsidiaries or any Environmental Action relating in any way to the Company or
any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. Each Borrower also agrees not to assert any claim for
special, indirect, consequential or punitive damages against the Agent, any
Lender, any of their Affiliates, or any of their respective directors,
officers, employees, attorneys and



36









 







agents, on any theory of liability, arising
out of or otherwise relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances.



          (c) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance, LIBO Rate Advance is made by any Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or by an Eligible Assignee to a Lender other than on the last
day of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by any Borrower pursuant to Section 9.07(a), such Borrower shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably
incur as a result of such payment or Conversion, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by any Lender to fund or maintain such Advance.



          (d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.



          SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender or
such Affiliate to or for the credit or the account of any Borrower against any
and all of the obligations of any Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the
applicable Borrower after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender and its Affiliates may have.



          SECTION 9.06. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrowers and the Agent and when the Agent
shall have been notified by each Initial Lender that such Initial Lender has
executed it and thereafter shall be binding upon and inure to the benefit of
each Borrower, the Agent and each Lender and their respective successors and
assigns, except that no Borrower shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of all of
the Lenders.



          SECTION 9.07. Assignments and Participations. (a) Each Lender may and,
if demanded by the Company (following a demand by such Lender pursuant to
Section 2.11 or 2.14 or upon a reasonable determination by the Company that a
change in law or circumstances has created a reasonable likelihood that such
Lender will make a demand pursuant to Section 2.11 or 2.14 and only if no Event
of Default has occurred and is continuing) upon at least five Business Days’
notice to such Lender and the Agent, will assign to one or more Persons all or
a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Revolving Credit
Advances owing to it and the Revolving Credit Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and
not a varying, percentage of all rights and obligations under this Agreement
(other than any right to make Competitive Bid Advances, Competitive Bid
Advances owing to it and Competitive Bid Notes), (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender
or an assignment of all of a Lender’s rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, (iii) each
such assignment shall be to an Eligible Assignee, (iv) each such assignment
made as a result of a demand by the Company pursuant



37









 







to this Section 9.07(a)
shall be arranged by the Company after consultation with the Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Company pursuant to this
Section 9.07(a) unless and until such Lender shall have received one or more
payments from either the Borrowers or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount
of the Advances owing to such Lender, together with accrued interest thereon to
the date of payment of such principal amount and all other amounts payable to
such Lender under this Agreement, and (vi) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Revolving Credit Note
subject to such assignment and a processing and recordation fee of $3,500
payable by the parties to each such assignment, provided, however, that in the
case of each assignment made as a result of a demand by the Company, such
recordation fee shall be payable by the Borrowers except that no such
recordation fee shall be payable in the case of an assignment made at the
request of the Company to an Eligible Assignee that is an existing Lender, and
(vii) each such assignment shall be made with the consent, not to be
unreasonably withheld, of the Agent and the Company, provided that any Lender
may, without the approval of the Borrowers and the Agent, assign all or a
portion of its rights to any of its Affiliates so long as such assignment does
not result in any increased cost to, or obligation of, the Borrowers. Upon
such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Section 2.11, 2.14 and 9.04
to the extent any claim thereunder relates to an event arising prior such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).



          (b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value
of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by the Borrowers of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement as are delegated to the Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.



          (c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrowers.



          (d) The Agent shall maintain at its address referred to in Section 9.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and



38









 







addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to, each Lender from
time to time (the “Register”). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrowers, the
Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by any Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.



          (e) Each Lender may sell participations to one or more banks or other
entities (other than any Borrower or any Affiliate of any Borrower) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to
it and any Note or Notes held by it); provided, however, that (i) such Lender’s
obligations under this Agreement (including, without limitation, its Commitment
to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrowers, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by any Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest
on, the Notes or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation, or postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.



          (f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.07, disclose to
the assignee or participant or proposed assignee or participant, any
information relating to any Borrower furnished to such Lender by or on behalf
of such Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to such Borrower
received by it from such Lender.



          (g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.



          SECTION 9.08. Designated Subsidiaries. (a) Designation. The Company may
at any time and from time to time by delivery to the Agent of a Designation
Letter, duly executed by the Company and a wholly owned Subsidiary organized
under the laws of a jurisdiction in the United States and in substantially the
form of Exhibit F hereto, designate such Subsidiary as a “Designated
Subsidiary” for all purposes of this Agreement, and, upon fulfillment of the
applicable conditions set forth in Article III and after such Designation
Letter is accepted by the Agent, such Subsidiary shall thereupon become a
Designated Subsidiary for all purposes of this Agreement and, as such, shall
have all of the rights and obligations of a Borrower hereunder. The Agent
shall promptly notify each Lender of each such designation by the Company and
the identity of each such Designated Subsidiary.



          (b) Termination. Upon the payment and performance in full of all of the
indebtedness, liabilities and obligations of any Borrower (other than the
Company or any Borrower that is a Significant Subsidiary that is organized
under the laws of a jurisdiction in the United States) under this Agreement and
the Notes issued by it, then, so long as at such time such Borrower has not
submitted a Notice of Revolving Credit Borrowing, such Borrower’s status as a
Borrower shall terminate upon notice to such effect from the Agent to the
Lenders (which notice the Agent shall promptly deliver to the Lenders following
its receipt of such a request from the Company). Thereafter, the Lenders shall
be under no further obligation to make any Revolving Credit Advances to such
Borrower.



          SECTION 9.09. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any other Person without the consent
of the Company, other than (a) to the Agent’s or such Lender’s Affiliates and
their officers, directors, employees, agents and advisors and, as contemplated
by Section 9.07(f), to actual or prospective assignees and participants, and
then only on a confidential basis, (b) as



39









 







required by any law, rule or
regulation or judicial process and (d) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.



          SECTION 9.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.



          SECTION 9.11. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.



          SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each Borrower hereby agrees that service of process in
any such action or proceeding brought in the any such New York State court or
in such federal court may be made upon The Prentice-Hall Corporation System,
Inc. at its offices at 80 State Street, Albany, New York 12207-2543 (the
“Process Agent”) and each Borrower hereby irrevocably appoints the Process
Agent its authorized agent to accept such service of process, and agrees that
the failure of the Process Agent to give any notice of any such service shall
not impair or affect the validity of such service or of any judgment rendered
in any action or proceeding based thereon. Each Borrower hereby further
irrevocably consents to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties hereto by registered or
certified mail, postage prepaid, to such Borrower at its address specified
pursuant to Section 9.02, with a copy addressed to the Law Department. Each of
the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of
any jurisdiction.



          (b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.



          SECTION 9.13. Waiver of Jury Trial. Each of the Borrowers, the Agent and
the Lenders hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the actions of the
Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.



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


	 	 	 	 	 
	 	LAFARGE NORTH AMERICA INC.

 	 
	 	             By                 /s/ Kevin Grant
 	 
	 	Title: Vice President and Treasurer 	 
	 	 	 




40









 






	 	 	 	 	 



	 	 	 	 	 
	 	LAFARGE MIDWEST, INC.

 	 
	 	By /s/ Kevin Grant
 	 
	 	Title: Vice President and Treasurer 	 
	 	 	 
	 



	 	 	 	 	 
	 	LAFARGE SOUTHWEST, INC.

 	 
	 	By   /s/ Denise Werntz
 	 
	 	Title: Vice President and Treasurer 	 
	 	 	 
	 



	 	 	 	 	 
	 	LAFARGE WEST, INC.

 	 
	 	By   /s/ Denise Werntz
 	 
	 	Title: Vice President and Treasurer 	 
	 	 	 
	 



	 	 	 	 	 
	 	LAFARGE PRESQUE ISLE INC.

 	 
	 	By   /s/ Kevin Grant
 	 
	 	Title: Treasurer 	 
	 	 	 
	 



	 	 	 	 	 
	 	LAFARGE MID-ATLANTIC INC.

 	 
	 	By   /s/ Kevin Grant
 	 
	 	Title: Treasurer 	 
	 	 	 
	 



	 	 	 	 	 
	 	REDLAND QUARRIES NY, INC.

 	 
	 	By   /s/ Kevin Grant
 	 
	 	Title: Treasurer 	 
	 	 	 
	 



	 	 	 	 	 
	 	WMI FINANCE CORPORATION

 	 
	 	By   /s/ Kevin Grant
 	 
	 	Title: Vice President 	 
	 	 	 
	 



	 	 	 	 	 
	 	CITIBANK, N.A.

 	 
	 	By   /s/ Steven R. Victorin
 	 
	 	Title: Vice President 	 
	 	 	 
	 




41









 








Initial Lenders




	 	 	 	 	 	 	 
	Commitment
	 	 	 	 	 	 
	Administrative Agent

	 
	 	 	 	 	 	 
	$39,000,000 	 	 	 	CITIBANK, N.A.
	 
 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ Steven R. Victorin
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Vice President
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	Syndication Agent

	 
	 	 	 	 	 	 
	$39,000,000 	 	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ Fareed F. Adjani
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Associate
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	Co-Documentation Agents

	 
	 	 	 	 	 	 
	$30,000,000 	 	 	 	BANK ONE, NA
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ Joseph R. Perdenza
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Director
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	$30,000,000 	 	 	 	BNP PARIBAS
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ Jerome d’Humieres
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Vice President
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ Nanette Baudon
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Vice President
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	$30,000,000 	 	 	 	SUNTRUST BANK
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ Duncan S. Owen, III
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Director
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 







42









 






	 	 	 	 	 	 	 
	Managing Agents

	 
	 	 	 	 	 	 
	$23,500,000 	 	 	 	BAYERISCHE LANDESBANK GIROZENTRALE
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/Wolfgang Kottman
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	First Vice President
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ James H. Boyle
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Vice President
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	$23,500,000 	 	 	 	HARRIS NESBITT FINANCING, INC.
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ [illegible]
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Managing Director
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	$22,500,000 	 	 	 	U.S. BANK NATIONAL ASSOCIATION
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ Michael P. [illegible]
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Assistant Vice President
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	Lenders

	 
	 	 	 	 	 	 
	$20,000,000 	 	 	 	THE BANK OF NOVA SCOTIA
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ Todd S. Meller
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Managing Director
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	$15,000,000 	 	 	 	BRANCH BANKING & TRUST CO.
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ [illegible]
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Vice President
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	$15,000,000 	 	 	 	WELLS FARGO BANK, N.A.
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ Lori A. [illegible]
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Vice President
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	$12,500,000 	 	 	 	MANUFACTURES AND TRADERS TRUST COMPANY
	 
	 	 	 	 	 	 
	

	 	 	 	By
	 	/s/ Timothy A. [illegible]
	

	 	 	 	 	 	
 
	

	 	 	 	Title:
	 	Vice President
	

	 	 	 	 	 	
 
	 
	 	 	 	 	 	 
	$300,000,000     Total
of the Commitments








43