**Exhibit 10**

 

 

**AMENDED AND RESTATED**

**CREDIT AGREEMENT**,

 

dated as ofDecember 19, 2002

 

among

 

**ANDREW CORPORATION**

 

**and**

 

**DESIGNATED SUBSIDIARIES OF ANDREW CORPORATION,**

 

as Borrowers,

 

and

 

**CERTAIN COMMERCIAL LENDING INSTITUTIONS**,

 

as the Lenders,

 

and

 

**BANK OF AMERICA, N.A.,**

 

as the AdministrativeAgent, Swing Line Lender and L/C Issuer,

 

and

 

**LASALLE BANK NATIONAL ASSOCIATION**

 

as Syndication Agent,

 

**U.S. BANK****NATIONAL ASSOCIATION**

 

As Documentation Agent

 

and

 

**BANC OF AMERICA SECURITIES LLC**,

 

as Sole Lead Arranger andSole Book Manager

 

 

----

 

**TABLE OF CONTENTS**

 
| **Article**      |   |
|------------------|--------|
|             |   |
| **ARTICLE I**    |   | **DEFINITIONS  AND ACCOUNTING TERMS** |
|             | 1.1    | Defined Terms |
|             | 1.2    | Use of  Defined Terms |
|             | 1.3    | Cross-References |
|             | 1.4    | Rounding |
|             | 1.5    | References to  Agreements and Laws |
|             | 1.6    | Exchange  Rates; Alternative Currency Equivalents |
|             | 1.7    | Redenomination of Sterling |
|             | 1.8    | Additional  Committed Alternative Currencies |
|             |   |
| **ARTICLE  II**  |   | **THE  COMMITMENTS AND CREDIT EXTENSIONS** |
|             | 2.1    | Committed Loans |
|             | 2.2    | Borrowings,  Conversions and Continuations of Committed Loans. |
|             | 2.3    | Letters of  Credit. |
|             | 2.4    | Swing Line  Loans. |
|             | 2.5    | Prepayments. |
|             | 2.6    | Reduction or  Termination of Commitments |
|             | 2.7    | Repayment  of Loans. |
|             | 2.8    | Interest. |
|             | 2.9    | Fees |
|             | 2.10   | Computation of  Interest and Fees |
|             | 2.11   | Evidence of  Debt |
|             | 2.12   | Payments  Generally |
|             | 2.13   | Sharing  of Payments |
|             |   |
| **ARTICLE  III** |   | **TAXES,  YIELD PROTECTION AND ILLEGALITY** |
|             | 3.1    | Taxes |
|             | 3.2    | Illegality |
|             | 3.3    | Inability to Determine  Rates |
|             | 3.4    | Increased  Cost and Reduced Return; Capital Adequacy; Reserves on  Eurocurrency Rate Committed Loans |
|             | 3.5    | Funding Losses |
|             | 3.6    | Matters  Applicable to all Requests for Compensation |
|             | 3.7    | Survival |
|             |   |
| **ARTICLE IV**   |   | **CONDITIONS TO  BORROWING** |
|             | 4.1    | Initial Borrowing of  the Company |
|             |   | 4.1.1 |   | Company  Resolutions, etc |
|             |   | 4.1.2 |   | Guarantor Resolutions, etc |
|             |   | 4.1.3 |   | Delivery of  Notes |
|             |   | 4.1.4 |   | Delivery  of Guaranty |
|                  |        |  |  |  |  |

 

i

----

 
|           |   | 4.1.5                                         |   | Payment of  Outstanding Indebtedness, etc     |
|----------------|--------|-----------------------------------------------|--------|-----------------------------------------------|
|           |   | 4.1.6                                         |   | Opinion of  Counsel                           |
|           |   | 4.1.7                                         |   | Expenses, etc                                 |
|           | 4.2    | Initial  Borrowing of a Designated Subsidiary |
|           |   | 4.2.1                                         |   | Designation  Letter                           |
|           |   | 4.2.2                                         |   | Notes                                         |
|           |   | 4.2.3                                         |   | Authorizations and  Approvals                 |
|           |   | 4.2.4                                         |   | Guaranty                                      |
|           |   | 4.2.5                                         |   | Resolutions                                   |
|           |   | 4.2.6                                         |   | Incumbency                                    |
|           |   | 4.2.7                                         |   | Opinion of  Counsel                           |
|           | 4.3    | All  Credit Extensions                        |
|           |   | 4.3.1                                         |   | Compliance  with Warranties, No Default, etc  |
|           |   | 4.3.2                                         |   | Request  for Extension                        |
|           |   | 4.3.3                                         |   | Insurance                                     |
|           |   | 4.3.4                                         |   | Form U-1                                      |
|           |   | 4.3.5                                         |   | Satisfactory  Legal Form                      |
|           |   |
| **ARTICLE V**  |   | **REPRESENTATIONS  AND WARRANTIES**           |
|           | 5.1    | Organization,  etc                            |
|           | 5.2    | Due  Authorization, Non-Contravention, etc    |
|           | 5.3    | Government  Approval, Regulation, etc         |
|           | 5.4    | Validity, etc                                 |
|           | 5.5    | Financial  Information                        |
|           | 5.6    | No Material Adverse Change                    |
|           | 5.7    | Litigation, Labor  Controversies, etc         |
|           | 5.8    | Subsidiaries                                  |
|           | 5.9    | Partnerships; Joint  Ventures                 |
|           | 5.10   | Ownership  of Properties                      |
|           | 5.11   | Taxes                                         |
|           | 5.12   | Insurance                                     |
|           | 5.13   | Pension  and Welfare Plans                    |
|           | 5.14   | Environmental  Warranties                     |
|           | 5.15   | Regulations  U and X                          |
|           | 5.16   | Indebtedness                                  |
|           | 5.17   | Accuracy  of Information                      |
|           |   |
| **ARTICLE VI** |   | **COVENANTS**                                 |
|           | 6.1    | Affirmative  Covenants                        |
|           |   | 6.1.1                                         |   | Financial  Information, Reports, Notices, etc |
|           |   | 6.1.2                                         |   | Compliance  with Laws, etc                    |
|           |   | 6.1.3                                         |   | Insurance                                     |
|           |   | 6.1.4                                         |   | Environmental  Covenant                       |
|           |   | 6.1.5                                         |   | Guarantors                                    |
|           | 6.2    | Negative  Covenants                           |
|           |   | 6.2.1                                         |   | Liens                                         |
|                |        |                                               |        |                                               |  |

 

ii

----

 
|             |   | 6.2.2                                                               |   | Financial  Condition                                  |
|------------------|--------|---------------------------------------------------------------------|--------|-------------------------------------------------------|
|             |   | 6.2.3                                                               |   | Investments                                           |
|             |   | 6.2.4                                                               |   | Consolidation, Merger, etc                            |
|             |   | 6.2.5                                                               |   | Asset  Dispositions, etc                              |
|             |   | 6.2.6                                                               |   | Transactions with  Affiliates                         |
|             |   | 6.2.7                                                               |   | Negative  Pledges, Restrictive Agreements, etc        |
|             |   | 6.2.8                                                               |   | Business  Activities                                  |
|             |   |
| **ARTICLE VII**  |   | **EVENTS OF DEFAULT**                                               |
|             | 7.1    | Listing of Events of  Default                                       |
|             |   | 7.1.1                                                               |   | Non-Payment of Obligations                            |
|             |   | 7.1.2                                                               |   | Breach of  Warranty                                   |
|             |   | 7.1.3                                                               |   | Non-Performance  of Certain Covenants and Obligations |
|             |   | 7.1.4                                                               |   | Non-Performance  of Other Covenants and Obligations   |
|             |   | 7.1.5                                                               |   | Default on Other  Indebtedness                        |
|             |   | 7.1.6                                                               |   | Judgments                                             |
|             |   | 7.1.7                                                               |   | Pension Plans                                         |
|             |   | 7.1.8                                                               |   | Control  of the Company                               |
|             |   | 7.1.9                                                               |   | Bankruptcy, Insolvency, etc                           |
|             |   | 7.1.10                                                              |   | Loan Documents                                        |
|             | 7.2    | Action  if Bankruptcy                                               |
|             | 7.3    | Action if Other Event  of Default                                   |
|             |   |
| **ARTICLE VIII** |   | **ADMINISTRATIVE AGENT**                                            |
|             | 8.1    | Appointment  and Authorization of Administrative Agent              |
|             | 8.2    | Delegation  of Duties                                               |
|             | 8.3    | Liability of  Administrative Agent                                  |
|             | 8.4    | Reliance by  Administrative Agent                                   |
|             | 8.5    | Notice of  Default                                                  |
|             | 8.6    | Credit  Decision; Disclosure of Information by Administrative Agent |
|             | 8.7    | Indemnification  of Administrative Agent                            |
|             | 8.8    | Administrative  Agent in its Individual Capacity                    |
|             | 8.9    | Successor Administrative  Agent                                     |
|             | 8.10   | Other Agents; Lead Managers                                         |
|             |   |
| **ARTICLE IX**   |   | **MISCELLANEOUS**                                                   |
|             | 9.1    | Amendments, Etc                                                     |
|             | 9.2    | Notices  and Other Communications; Facsimile Copies                 |
|             | 9.3    | No Waiver; Cumulative  Remedies                                     |
|             | 9.4    | Attorney Costs,  Expenses and Taxes                                 |
|             | 9.5    | Indemnification by the  Borrowers                                   |
|             | 9.6    | Payments  Set Aside                                                 |
|             | 9.7    | Successors  and Assigns.                                            |
|             | 9.8    | Confidentiality                                                     |
|             | 9.9    | Set-off                                                             |
|             | 9.10   | Interest  Rate Limitation                                           |
|                  |        |                                                                     |        |                                                       |  |

 

iii

----

 
|   | 9.11 | Counterparts                                |
|--------|------|---------------------------------------------|
|   | 9.12 | Integration                                 |
|   | 9.13 | Survival of  Representations and Warranties |
|   | 9.14 | Severability                                |
|   | 9.15 | Foreign Lenders                             |
|   | 9.16 | Removal and  Replacement of Lenders.        |
|   | 9.17 | Governing Law                               |
|   | 9.18 | Waiver of Right to  Trial by Jury           |
|   | 9.19 | ENTIRE  AGREEMENT                           |

 

iv

----

 

**SCHEDULES AND EXHIBITS**

 

 
| SCHEDULE 1.1        | Mandatory Cost Rate                                               |
|---------------------|-------------------------------------------------------------------|
| SCHEDULE 2.1        | Commitments and Pro  Rata Shares                                  |
| SCHEDULE 9.2        | Eurocurrency and  Domestic Lending Offices, Addresses for Notices |
|                |                                                              |
|                |                                                              |
| EXHIBIT A           | Committed Loan Notice                                             |
| EXHIBIT B           | Swing Line Loan Notice                                            |
| EXHIBIT C-1         | Committed Loan Note                                               |
| EXHIBIT C-2         | Swing Line Note                                                   |
| EXHIBIT D           | Company Guaranty                                                  |
| EXHIBIT E           | Designation Letter                                                |
| EXHIBIT F           | Compliance Certificate                                            |
| EXHIBIT G           | Assignment and  Acceptance                                        |
| EXHIBIT H           | Guaranty                                                          |
| EXHIBIT I           | Opinion of Counsel to  the Company and the Guarantor              |
| EXHIBIT J           | Notice of Purchase of  Margin Stock                               |
| EXHIBIT K           | Acquisition Notice                                                |
|                |                                                              |
|                |                                                              |
| DISCLOSURE SCHEDULE |
|                |                                                              |
| Item 4.1.5          | Indebtedness to be  Repaid                                        |
| Item 5.7            | Litigation                                                        |
| Item 5.8            | Existing Subsidiaries                                             |
| Item 5.9            | Partnerships and Joint  Ventures                                  |
| Item 5.13           | Employee Benefit Plans                                            |
| Item 5.14           | Environmental Matters                                             |
| Item 5.16           | Indebtedness                                                      |
| Item 6.2.1          | Existing Liens                                                    |
| Item 6.2.3(a)       | Ongoing Investments                                               |
|                     |                                                                   |  |

 

v

----

 

**AMENDED AND RESTATED**

**CREDIT AGREEMENT**

 

THIS AMENDED ANDRESTATED CREDIT AGREEMENT, dated as of December 19, 2002 among(i) ANDREW CORPORATION, a Delaware corporation (the “**Company**”) and DesignatedSubsidiaries (hereafter defined) of the Company as are now or may hereafterbecome parties hereto (collectively, together with the Company, the “**Borrowers**”),(ii) the various financial institutions as are now or may become partieshereto (collectively, the “**Lenders**”), (iii) BANK OF AMERICA, N.A.(“**Bank ofAmerica**”), as administrative agent (the “**Administrative Agent**”) forthe Lenders, (iv) LASALLE BANK NATIONAL ASSOCIATION, as syndication agent(the “**SyndicationAgent**”), and (v) U.S. BANK, NATIONAL ASSOCIATION, as documentation agent(the “**DocumentationAgent**”).

 

**WITNESSETH**:

 

WHEREAS, theBorrowers, certain Lenders and Bank of America entered into a Credit Agreement,dated as of March 17, 2000 (the “**Existing Credit Agreement**”);

 

WHEREAS, theparties hereto wish to amend and restate the Existing Credit Agreement; and

 

WHEREAS, theBorrowers have requested that the Lenders provide a revolving credit facility,and the Lenders are willing to do so on the terms and conditions set forthherein.

 

NOW, THEREFORE, inconsideration of the mutual agreements contained herein, and subject to theterms and conditions hereof, the parties hereto, intending to be legally boundhereby, agree as follows:

 

# **ARTICLE I**

# **DEFINITIONS AND ACCOUNTING TERMS**

 

1.1           **Defined Terms**.  Thefollowing terms (whether or not underscored) when used in this Agreement,including its preamble and recitals, shall, except where the context otherwiserequires, have the following meanings (such meanings to be equally applicableto the singular and plural forms thereof):

 

“**Acquisition**”means any transaction or series of related transactions for the purpose of orresulting, directly or indirectly, in (a) the acquisition of all orsubstantially all of the assets of a Person, or of any business or division ofa Person, (b) the acquisition of in excess of 50% of the capital stock,partnership interests, membership interests or equity of any Person, orotherwise causing any Person to become a Subsidiary, or (c) a merger orconsolidation or any other combination with another Person (other than a Personthat is a Subsidiary) provided that the Company or any Subsidiary of theCompany is the surviving entity.

 

----

 

“**AdministrativeAgent**” is defined in the preamble and includes eachPerson as shall have subsequently been appointed as the successorAdministrative Agent pursuant to Section 8.9.

 

“**AdministrativeAgent’s Office**” means, with respect to any currency, theAdministrative Agent’s address and, as appropriate, account as set forth on Schedule 9.2with respect to such currency, or such other address or account with respect tosuch currency as the Administrative Agent may from time to time notify to theCompany and the Lenders.

 

“**Affiliate**”means, as to any Person, any other Person directly or indirectly controlling,controlled by, or under direct or indirect common control with, suchPerson.  A Person shall be deemed to be“controlled by” any other Person if such other Person possesses, directly orindirectly, power (a) to vote 10% or more of the securities (on a fully dilutedbasis) having ordinary voting power for the election of directors or managinggeneral partners; or (b) to direct or cause the direction of the management andpolicies of such Person whether by contract or otherwise.

 

“**Agent/ArrangerFee Letter**” has the meaning set forth in Section 2.9(b).

 

“**Agent-RelatedPersons**” means the Administrative Agent (including any successoradministrative agent), together with its Affiliates (including, in the case ofBank of America in its capacity as the Administrative Agent, the Arranger), andthe officers, directors, employees, agents and attorneys-in-fact of suchPersons and Affiliates.

 

“**AggregateCommitments**” has the meaning set forth in the definition of“Commitment.”

 

“**Agreement**”means, on any date, this Amended and Restated Credit Agreement as originally ineffect on the Closing Date and as thereafter from time to time amended,supplemented, amended and restated, or otherwise modified and in effect on suchdate.

 

“**AlternativeCurrency**” means any Committed Alternative Currency and any otherlawful currency (other than Dollars) that is freely transferable or convertibleinto Dollars.

 

“**AlternativeCurrency Equivalent**” means, with respect to any amountdenominated in Dollars on any date of determination, the amount of anAlternative Currency that could be purchased with such amount of Dollars usingthe reciprocal of the foreign exchange rate(s) specified in the definition of“Dollar Equivalent,” as determined by the Administrative Agent.

 

“**AlternativeCurrency Loan**” means any Loan denominated in an AlternativeCurrency.  Each Alternative CurrencyLoan must be a Eurocurrency Rate Committed Loan.

 

“**AlternativeCurrency Sublimit**” means $20,000,000.

 

“**ApplicableCommitment Fee Percentage**” shall mean, for any Fiscal Quarter,the percentage set forth below opposite the Consolidated Total Debt to EBITDARatio as of the last day of the preceding Fiscal Quarter:

 

2

----

 

| **Consolidated Total Debt  to EBITDA Ratio**                     |   | **Applicable  Commitment  Fee Percentage** |   |
|------------------------------------------------------------------|--------|--------------------------------------------|--------|
| equal to or greater than 1.75 to 1.0                             |   | 0.40                                       | %      |
| less than 1.75 to 1.0, but equal to or greater than  1.25 to 1.0 |   | 0.35                                       | %      |
| less than 1.25 to 1.0 but equal to or greater than  0.75 to 1.0  |   | 0.30                                       | %      |
| less than 0.75 to 1.0                                            |   | 0.25                                       | %      |

 

For purposes of theforegoing, the Applicable Commitment Fee Percentage at any time shall bedetermined by reference to the Consolidated Total Debt to EBITDA Ratio as ofthe last day of the most recently ended Fiscal Quarter and any change in theApplicable Commitment Fee Percentage shall, except as otherwise providedherein, become effective for all purposes on the date the certificate andapplicable financial statements described in Sections 6.1.1(a), 6.1.1(b)and 6.1.1(c) are required to be provided for the applicable fiscal period; provided,however, that until the certificate and financial statements have beendelivered to the Administrative Agent for the Fiscal Quarter ending December31, 2002, the Applicable Unused Fee Percentage shall be 0.35%.  Notwithstanding the foregoing, at any timeduring which the Company has failed to deliver the certificate and applicablefinancial statements described in Sections 6.1.1(a), 6.1.1(b) and 6.1.1(c)with respect to a Fiscal Quarter (or the Fiscal Year in the case of the fourthFiscal Quarter) in accordance with the provisions thereof, the ConsolidatedTotal Debt to EBITDA Ratio shall be deemed, solely for purposes of thisdefinition, to be greater than 1.75 to 1.0 until such certificate and theapplicable financial statements are delivered.

 

“**ApplicableL/C Fee Rate**” shall mean, for any Fiscal Quarter, the percentageset forth below opposite the Consolidated Total Debt to EBITDA Ratio as of thelast day of the preceding Fiscal Quarter:

 

| **Consolidated Total Debt  to EBITDA Ratio**                     |   | **Applicable  L/C Fee Rate** |   |
|------------------------------------------------------------------|--------|------------------------------|--------|
| equal to or greater than 1.75 to 1.0                             |   | 2.00                         | %      |
| less than 1.75 to 1.0, but equal to or greater than  1.25 to 1.0 |   | 1.75                         | %      |
| less than 1.25 to 1.0 but equal to or greater than  0.75 to 1.0  |   | 1.50                         | %      |
| less than 0.75 to 1.0                                            |   | 1.125                        | %      |

 

3

----

 

For purposes of theforegoing, the Applicable L/C Fee Rate at any time shall be determined byreference to the Consolidated Total Debt to EBITDA Ratio as of the last day ofthe most recently ended Fiscal Quarter and any change in the Applicable L/C FeeRate shall, except as otherwise provided herein, become effective for allpurposes on the date the certificate and applicable financial statementsdescribed in Sections 6.1.1(a), 6.1.1(b) and 6.1.1(c) are required to beprovided for the applicable fiscal period; provided, however,that until the certificate and financial statements have been delivered to theAdministrative Agent for the Fiscal Quarter ending December 31, 2002, theApplicable L/C Fee Rate shall be 1.75%. Notwithstanding the foregoing, at any time during which the Company hasfailed to deliver the certificate and applicable financial statements describedin Sections 6.1.1(a), 6.1.1(b) and 6.1.1(c) with respect to a FiscalQuarter (or the Fiscal Year in the case of the fourth Fiscal Quarter) inaccordance with the provisions thereof, the Consolidated Total Debt to EBITDARatio shall be deemed, solely for purposes of this definition, to be greaterthan 1.75 to 1.0 until such certificate and the applicable financial statementsare delivered.

 

“**ApplicableMargin**” means, for any Fiscal Quarter, the margin set forthbelow opposite the Consolidated Total Debt to EBITDA Ratio as of the last dayof the preceding Fiscal Quarter:

 

| **Consolidated Total Debt  to EBITDA Ratio**                     |   | **Applicable  Margin for  Eurocurrency  Rate Loans** |   | **Applicable  Margin  For  Base Rate Loans** |   |
|------------------------------------------------------------------|--------|------------------------------------------------------|--------|----------------------------------------------|--------|
| equal to or greater than 1.75 to 1.0                             |   | 2.0                                                  | %      | 0.50                                         | %      |
| less  than 1.75 to 1.0, but equal to or greater than 1.25 to 1.0 |   | 1.75                                                 | %      | 0.25                                         | %      |
| less  than 1.25 to 1.0 but equal to or greater than 0.75 to 1.0  |   | 1.50                                                 | %      | 0                                            | %      |
| less  than 0.75 to 1.0                                           |   | 1.125                                                | %      | 0                                            | %      |

 

For purposes of theforegoing, the Applicable Margin at any time shall be determined by referenceto the Consolidated Total Debt to EBITDA Ratio as of the last day of the mostrecently ended Fiscal Quarter and any change in the Applicable Margin shallbecome effective for all purposes on the date the certificate and applicablefinancial statements described in Sections 6.1.1(a), 6.1.1(b) and 6.1.1(c)are required to be provided for the applicable fiscal period; provided, however,that until the certificate and financial statements have been delivered to theAdministrative Agent for the Fiscal Quarter ending December 31, 2002, theApplicable Margin for Eurocurrency Rate Committed Loans shall be 1.75% and theApplicable Margin for Base Rate Loans shall be 0.25%.  Notwithstanding the foregoing, at any time during which theCompany has failed to deliver the certificate and applicable financialstatements described in

 

4

----

 

Sections 6.1.1(a),6.1.1(b) and 6.1.1(c) with respect to a Fiscal Quarter (or the Fiscal Year inthe case of the fourth Fiscal Quarter) in accordance with the provisionsthereof, the Consolidated Total Debt to EBITDA Ratio shall be deemed, solelyfor purposes of this definition, to be greater than 1.75 to 1.0 until suchcertificate and the applicable financial statements are delivered.

 

“**ApprovedFund**” has the meaning specified in Section 9.7(h).

 

“**Arranger**”means Banc of America****Securities LLC, in its capacity as solelead arranger and sole book manager.

 

“**Assignmentand Acceptance**” means an Assignment and Acceptance substantiallyin the form of Exhibit G.

 

“**AttorneyCosts**” means and includes all reasonable fees and disbursementsof any law firm or other external counsel and the allocated cost of internallegal services and all disbursements of internal counsel.

 

“**AuthorizedCorporate Officer**” means, relative to any Obligor, those of itsofficers whose signatures and incumbency shall have been certified to theAdministrative Agent and the Lenders pursuant to Section 4.1.1 withrespect to the Company and pursuant to Section 4.1.2 with respect to theGuarantor.

 

“**Bank ofAmerica**” is defined in the preamble.

 

“**Base Rate**”means for any day a fluctuating rate per annum equal to the higher of (a) theFederal Funds Rate plus 1/2 of 1% or (b) the rate of interest in effect forsuch day as publicly announced from time to time by Bank of America as its“prime rate.”  Such rate is a rate setby Bank of America based upon various factors including Bank of America’s costsand desired return, general economic conditions and other factors, and is usedas a reference point for pricing some loans, which may be priced at, above, orbelow such announced rate.  Any changein such rate announced by Bank of America shall take effect at the opening ofbusiness on the day specified in the public announcement of such change.

 

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

 

“**Base RateLoan**” means a Loan thatbears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.

 

“**Board**”means the Board of Governors of the Federal Reserve System of the United Statesof America.

 

“**Borrowers**”is defined in the preamble.

 

“**Borrowing**”means a Committed Borrowing or a Swing Line Borrowing, as the context mayrequire.

 

5

----

 

“**BusinessDay**” means any day other than a Saturday, Sunday or other day onwhich commercial banks are authorized to close under the Laws of, or are infact closed in, the state where the Administrative Agent’s Office with respectto Obligations denominated in Dollars is located and (a) if such day relates toany Eurocurrency Rate Committed Loan denominated in a currency other than Euro,means any such day on which dealings in deposits in the relevant currency areconducted by and between banks in the London interbank market or (b) if suchday relates to any Eurocurrency Rate Committed Loan denominated in Euro, meansa TARGET Day.

 

“**CalculationDate**” means, in respect of a Eurocurrency Rate Committed Loandenominated in an Alternative Currency, (a) the date falling two Business Days(or such other period as is customary in the relevant foreign exchange marketfor delivery on the date of the relevant Borrowing) prior to the date of eachBorrowing, (b) the date falling two Business Days (or such other period as iscustomary in the relevant foreign exchange market for delivery on the date ofthe relevant conversion or continuation of a Committed Loan) prior to the dateof conversion or continuation of any Committed Loan pursuant to Section 2.2,or (c) such additional dates as the Administrative Agent or the RequiredLenders shall specify.

 

“**CapitalizedLease**” of any Person means any lease of any property (whetherreal, personal or mixed) by such Person as lessee that, in accordance withGAAP, either would be required to be classified and accounted for as a capitallease on a balance sheet of such Person or otherwise be disclosed as such in anote to such balance sheet, other than, in the case of the Company or aSubsidiary of the Company, any such lease under which the Company or suchSubsidiary is the lessor.

 

“**CapitalizedLease Liabilities**” of any Person means the amount of allcapitalized monetary obligations of such Person under any Capitalized Lease,determined in accordance with GAAP, and the stated maturity thereof shall bethe date of the last payment of rent or any other amount due under such leaseprior to the first date upon which such lease may be terminated by the lesseewithout payment of a penalty.

 

“**CashCollateralize**” means to pledge and deposit with or deliver tothe Administrative Agent, for the benefit of the L/C Issuer and the Lenders, ascollateral for the L/C Obligations, cash or deposit account balances pursuantto documentation in form and substance satisfactory to the Administrative Agentand the L/C Issuer (which documents are hereby consented to by the Lenders).  Derivatives of such term shall havecorresponding meaning.  The Borrowershereby grant the Administrative Agent, for the benefit of the L/C Issuer andthe Lenders, a Lien on all such cash and deposit account balances.  Cash collateral shall be maintained inblocked, interest bearing deposit accounts at Bank of America acceptable to theAdministrative Agent.

 

“**CashEquivalent Investment**” means, at any time as to any Person, anyinvestment that is classified under GAAP as a short term investment and isconsistent with such Person’s internal guidelines regarding liquidity and shortterm investments.

 

“**CERCLA**”means the Comprehensive Environmental Response, Compensation and Liability Actof 1980 as amended by the Superfund Amendments and Reauthorization Action of1986, as thereafter amended.

 

6

----

 

“**CERCLIS**”means the Comprehensive Environmental Response Compensation LiabilityInformation System List.

 

“**Change inControl**” means, with respect to any Person, an event or seriesof events by which:

 

#### (a)           any “person” or “group” (as suchterms are used Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,but excluding any employee benefit plan of such Person or its subsidiaries, orany Person acting in its capacity as trustee, agent or other fiduciary oradministrator of any such plan), becomes the “beneficial owner” (as defined inRules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that aperson shall be deemed to have “beneficial ownership” of all securities thatsuch person has the right to acquire, whether such right is exercisableimmediately or only after the passage of time), directly or indirectly, of 30%or more of the equity interests of such Person; or

 

#### (b)           during any period of 12 consecutivemonths, a majority of the members of the board of directors or other equivalentgoverning body of such Person cease to be composed of individuals (i) who weremembers of that board or equivalent governing body on the first day of suchperiod, (ii) whose election or nomination to that board or equivalent governingbody was approved by individuals referred to in clause (i) above constitutingat the time of such election or nomination at least a majority of that board orequivalent governing body or (iii) whose election or nomination to that boardor other equivalent governing body was approved by individuals referred to inclauses (i) and (ii) above constituting at the time of such election ornomination at least a majority of that board or equivalent governing body.

 

“**ClosingDate**” means the first date all the conditions precedent in Section4.1 are satisfied or waived in accordance with Section 4.1.

 

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

 

“**Commitment**”means, as to each Lender, its obligation to (a) make Committed Loans to theBorrowers pursuant to Section 2.1, (b) purchase participations in L/CObligations, and (c) purchase participations in Swing Line Loans, in anaggregate principal amount at any one time outstanding not to exceed the amountset forth opposite such Lender’s name on Schedule 2.1, as such amountmay be reduced or adjusted from time to time in accordance with this Agreement(collectively, the “**Aggregate Commitments**”).

 

“**CommittedAlternative Currency**” means each of Euro, Sterling, Yen and eachother currency that is freely available and freely transferable and convertibleinto Dollars and which is approved by all the Lenders in accordance with Section1.8.

 

7

----

 

“**CommittedBorrowing**” means a borrowing consisting of simultaneousCommitted Loans of the same Type and having the same Interest Period made byeach of the Lenders pursuant to Section 2.1.

 

“**CommittedLoan**” has the meaning specified in Section 2.1.

 

“**CommittedLoan Note**” means a promissory note made by the Company or anyDesignated Subsidiary in favor of a Lender evidencing Committed Loans made bysuch Lender, substantially in the form of Exhibit C-1.

 

“**CommittedLoan Notice**” means a notice of (a) a Committed Borrowing, (b) aconversion of Committed Loans from one Type to the other, or (c) a continuationof Committed Loans as the same Type, pursuant to Section 2.2(a), which,if in writing, shall be substantially in the form of Exhibit A.

 

“**Company**”is defined in the preamble.

 

“**CompanyGuaranty**” means a Guaranty executed and delivered by the Companypursuant to Section 4.2.4 substantially in the form of Exhibit Dhereto, as amended, supplemented restated or otherwise modified from time totime.

 

“**ComplianceCertificate**” means a certificate substantially in the form of Exhibit F.

 

“**ConsolidatedCapital Expenditures**” means, with respect to any Person for anyperiod of determination, all payments, including without limitation, paymentswith respect to Capital Lease Obligations, for any fixed assets orimprovements, or replacements, substitutions or additions thereto, that have auseful life of more than one year and which are required to be capitalizedunder GAAP.

 

“**ConsolidatedCurrent Liabilities**” means, with respect to any Person at anydate of determination thereof, the consolidated current liabilities of suchPerson and its consolidated Subsidiaries as determined in accordance with GAAP.

 

“**ConsolidatedEBITDA**” means, with respect to any Person for any period ofdetermination, Consolidated Operating Income of such Person for such period, plus,without duplication, (i) depreciation, (ii) amortization and(iii) interest income of such Person and its consolidated Subsidiaries forsuch period, all as determined on a consolidated basis in accordance with GAAP.

 

“**ConsolidatedFixed Charge Coverage Ratio**” means, with respect to any Personfor any period of determination, the ratio of (i) the remainder of (x)Consolidated EBITDA, minus (y) Consolidated Capital Expenditures, to (ii) thesum of (A) cash payments of Consolidated Interest Charges, plus (B) scheduledprincipal payments on any items of the types described in clauses (a), (c) or(f) of the definition of Indebtedness of such Person for the four immediatelypreceding Fiscal Quarters.

 

8

----

 

“**ConsolidatedFunded Debt**” means, with respect to any Person at any date ofdetermination thereof, the sum on such date of (a) such Person’sConsolidated Long-Term Debt and (b) the aggregate present values of theprincipal portion of all Capitalized Lease Liabilities of such Person and itsconsolidated Subsidiaries on a consolidated basis.

 

“**ConsolidatedInterest Charges**” means, with respect to any Person, for anyperiod of determination, the sum of (a) all interest, premium payments, fees,charges and related expenses of such Person and its Subsidiaries in connectionwith borrowed money (including capitalized interest) or in connection with thedeferred purchase price of assets, in each case to the extent treated asinterest in accordance with GAAP, and (b) the portion of rent expense of suchPerson and its Subsidiaries with respect to such period under CapitalizedLeases that is treated as interest in accordance with GAAP.

 

“**ConsolidatedLong-Term Debt**” means, with respect to any Person at any date ofdetermination thereof, Indebtedness of such Person and its consolidatedSubsidiaries which is included in clauses (a), (c) and (f)of the definition of Indebtedness, the final maturity of which is more thantwelve (12) months after such date of determination.

 

“**ConsolidatedNet Assets**” means, with respect to any Person at any date ofdetermination thereof, such Person’s Consolidated Total Assets minussuch Person’s Consolidated Current Liabilities.

 

“**ConsolidatedNet Income**” means, with respect to any Person for any period,the net income of such Person and its consolidated Subsidiaries for such perioddetermined on a consolidated basis in accordance with GAAP.

 

“**ConsolidatedNet Worth**” means, with respect to any Person at any date ofdetermination thereof, the total of shareholders’ equity (including capitalstock, additional paid-in capital and retained earnings after deductingtreasury stock) of such Person and its consolidated Subsidiaries at such datedetermined on a consolidated basis in accordance with GAAP.

 

“**ConsolidatedOperating Income**” means, with respect to any Person for anyperiod of determination, the operating income of such Person and itsconsolidated Subsidiaries for such period determined on a consolidated basis inaccordance with GAAP.

 

“**ConsolidatedTotal Assets**” means, with respect to any Person at any date ofdetermination thereof, the total amount of all assets of such Person and itsconsolidated Subsidiaries determined on a consolidated basis in accordance withGAAP.

 

“**ConsolidatedTotal Capitalization**” means, with respect to any Person at anydate of determination thereof, the sum on such date of (a) ConsolidatedFunded Debt of such Person plus (b) Consolidated Net Worth of such Person.

 

“**ConsolidatedTotal Debt**” means, with respect to any Person at any date ofdetermination thereof, the aggregate amount of those items of Indebtedness ofsuch Person and its consolidated Subsidiaries included in clauses (a), (b),(c), (e), (f) and (g) of the definition of “Indebtedness” determined on aconsolidated basis in accordance with GAAP.

 

9

----

 

“**ConsolidatedTotal Debt to EBITDA Ratio**” means, with respect to any Person atany date of determination thereof, the ratio of (i) the Consolidated TotalDebt of such Person, to (ii) Consolidated EBITDA of such Person for thefour immediately preceding Fiscal Quarters.

 

“**ContingentLiability**” means, with respect to any Person, any agreement,undertaking or arrangement by which such Person guarantees, endorses orotherwise becomes or is contingently liable upon (by direct or indirectagreement, contingent or otherwise, to provide funds for payment, to supplyfunds to, or otherwise to invest in, a debtor, or otherwise to assure acreditor against loss) the indebtedness, obligation or any other liability ofany other Person (other than by endorsements of instruments in the course ofcollection), or guarantees the payment of dividends or other distributions uponthe shares of any other Person.  Theamount of any Person’s obligation under any Contingent Liability shall (subjectto any limitation set forth therein) be deemed to be the outstanding principalamount (or maximum principal amount, if larger) of the debt, obligation orother liability guaranteed thereby.

 

“**CreditExtension**” means each of the following: (a) a CommittedBorrowing, (b) a borrowing of a Swing Line Loan, and (c) an L/C CreditExtension.

 

“**DebtorRelief Laws**” means the Bankruptcy Code of the United States ofAmerica, and all other liquidation, conservatorship, bankruptcy, assignment forthe benefit of creditors, moratorium, rearrangement, receivership, insolvency,reorganization, or similar debtor relief Laws of the United States of Americaor other applicable jurisdictions from time to time in effect and affecting therights of creditors generally.

 

“**Default**”means any Event of Default or any condition, occurrence or event which, afternotice or lapse of time or both, would constitute an Event of Default.

 

“**DefaultRate**” means an interest rate equal to (a) the Base Rate plus(b) the Applicable Margin, if any, applicable to Base Rate Loans plus(c) 2% per annum; provided, however, that with respect to aEurocurrency Rate Committed Loan, the Default Rate shall be an interest rateequal to the interest rate (including any Applicable Margin) otherwiseapplicable to such Loan plus 2% per annum, in each case to the fullest extentpermitted by applicable Laws.

 

“**DesignatedSubsidiary**” means any Subsidiary identified as such in aDesignation Letter.

 

“**DesignationLetter**” means a letter in the form of Exhibit E signed byan Authorized Corporate Officer of the Company and each Designated Subsidiaryidentified therein.

 

“**DisclosureSchedule**” means the Disclosure Schedule attached hereto.

 

“**Dollar**”and “$” means lawful money of the United States of America.

 

“**DollarEquivalent**” means, as of any date of determination (a) withrespect to any amount denominated in Dollars, such amount, and (b) with respectto any amount denominated in any currency other than Dollars, the amount ofDollars that would be required to purchase the amount of the relevantAlternative Currency based on the spot rate for the purchase by Bank of

 

10

----

 

America of such Alternative Currency through its foreign exchangetrading office at approximately 10:00 a.m., Chicago time, on such date.

 

“**DollarLoan**” means any Loan denominated in Dollars.

 

“**EligibleAssignee**” has the meaning specified in Section 9.7(h).

 

“**EMU**”means the economic and monetary union in accordance with the Treaty of Rome1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992and the Amsterdam Treaty of 1998, as amended from time to time.

 

“**EMULegislation**” means the legislative measures of the EuropeanCouncil for the introduction of, changeover to or operation of a single orunified European currency (whether known as the “euro” or otherwise).

 

“**EnvironmentalLaws**” means all applicable federal, state or local statutes,laws, ordinances, codes, rules and regulations (including consent decrees andadministrative orders binding on the Company or any of its Subsidiaries)relating to public health and safety and protection of the environment.

 

“**EquityInterests**” means (a) with respect to a corporation, sharesof the capital stock of such corporation and (b) with respect to apartnership, limited liability company or other person, partnership, limitedliability or other equity interests in such Person.

 

“**EquityIssuance**” means any issuance and sale by the Company or by anySubsidiary to a Person other than the Company or any Subsidiary, of any EquityInterests of the Company or any Subsidiary or any Rights in respect thereof.

 

“**ERISA**”means the Employee Retirement Income Security Act of 1974, as amended, and anysuccessor statute of similar import, together with the regulations thereunder,in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections.

 

“**ERISAAffiliate**” means any corporation, partnership, or other trade orbusiness (whether or not incorporated) that is, along with the Company, amember of a controlled group of corporations or a controlled group of trades orbusinesses, as described in sections 414(b) and 414(c), respectively, ofthe Code or section 4001 of ERISA, or a member of the same affiliatedservice group within the meaning of section 414(m) of the Code.

 

“**Euro**”and “€” mean the lawful currency of the Participating Member Statesintroduced in accordance with the EMU Legislation.

 

“**EurocurrencyRate**” means (a) for any Interest Period with respect to anyEurocurrency Rate Committed Loan other than one referred to in subsection (b)of this definition:

 

(i)            the rate per annumequal to the rate determined by the Administrative Agent to be the offered ratethat appears on the page of the

 

11

----

 

Telerate screen(or any successor thereto) that displays an average British Bankers AssociationInterest Settlement Rate for deposits in the relevant currency (for delivery onthe first day of such Interest Period) with a term equivalent to such InterestPeriod, determined as of approximately 11:00 a.m. (London time) on theQuotation Date for such currency, or

 

(ii)           if the ratereferenced in the preceding clause (i) does not appear on such page or serviceor such page or service shall cease to be available, the rate per annum equalto the rate determined by the Administrative Agent to be the offered rate onsuch other page or other service that displays an average British BankersAssociation Interest Settlement Rate for deposits in the relevant currency (fordelivery on the first day of such Interest Period) with a term equivalent tosuch Interest Period, determined as of approximately 11:00 a.m. (London time)on the Quotation Date for such currency, or

 

(iii)          if the ratesreferenced in the preceding clauses (i) and (ii) are not available, the rateper annum determined by the Administrative Agent as the rate of interest(rounded upward to the next 1/100th of 1%) at which deposits in the relevantcurrency for delivery on the first day of such Interest Period in same dayfunds in the approximate amount of the Eurocurrency Rate Committed Loan being made,continued or converted by Bank of America and with a term equivalent to suchInterest Period would be offered by Bank of America’s London Branch to majorbanks in the London interbank market for such currency at their request atapproximately 11:00 a.m. (London time) on the Quotation Date for such currency;and

 

(b)           for any InterestPeriod with respect to any Eurocurrency Rate Committed Loan denominated inSterling and advanced by a Lender required to comply with the relevantrequirements of the Bank of England and the Financial Services Authority of theUnited Kingdom, the sum of (i) the rate determined in accordance withsubsection (a) of this definition and (ii) the Mandatory Cost Rate for suchInterest Period.

 

“**EurocurrencyRate Committed Loan**” means a Committed Loan that bears interestat a rate based on the Eurocurrency Rate.

 

“**Event ofDefault**” is defined in Section 7.1.

 

“**ExcessPortion**” is defined in Section 6.2.5.

 

“**FederalFunds Rate**” means, for any day, the rate per annum (roundedupwards to the nearest 1/100 of 1%) equal to the weighted average of the rateson overnight Federal funds transactions with members of the Federal ReserveSystem arranged by Federal funds brokers on such day, as published by theFederal Reserve Bank on the Business Day next succeeding such day; providedthat (a) if such day is not a Business Day, the Federal Funds Rate for such dayshall be such rate on such transactions on the next preceding Business Day asso published on the next succeeding Business Day, and (b) if no such rate is sopublished on such next succeeding

 

12

----

 

Business Day, the FederalFunds Rate for such day shall be the average rate charged to Bank of America onsuch day on such transactions as determined by the Administrative Agent.

 

“**FiscalQuarter**” means any quarter of a Fiscal Year.

 

“**FiscalYear**” means any period of twelve consecutive calendar monthsending on September 30th; references to a Fiscal Year with a numbercorresponding to any calendar year (e.g. the “2003 Fiscal Year”) referto the Fiscal Year ending on the September 30th occurring during such calendaryear.

 

“**F.R.S.Board**” means the Board of Governors of the Federal ReserveSystem or any successor thereto.

 

“**ForeignLender**” has the meaning specified in Section 9.15.

 

“**GAAP**”means generally accepted accounting principles set forth in the opinions andpronouncements of the Accounting Principles Board and the American Institute ofCertified Public Accountants and statements and pronouncements of the FinancialAccounting Standards Board or such other principles as may be approved by asignificant segment of the accounting profession, that are applicable to thecircumstances as of the date of determination, consistently applied.  If at any time any change in GAAP wouldaffect the computation of any financial ratio or requirement set forth in anyLoan Document, and either the Company or the Required Lenders shall so request,the Administrative Agent, the Lenders and the Company shall negotiate in goodfaith to amend such ratio or requirement to preserve the original intentthereof in light of such change in GAAP (subject to the approval of theRequired Lenders); provided that, until so amended, (a) such ratio orrequirement shall continue to be computed in accordance with GAAP prior to suchchange therein and (b) the Company shall provide to the Administrative Agentand the Lenders financial statements and other documents required under thisAgreement or as reasonably requested hereunder setting forth a reconciliationbetween calculations of such ratio or requirement made before and after givingeffect to such change in GAAP.

 

“**GovernmentalAuthority**” means any nation or government, any state or otherpolitical subdivision thereof, any agency, authority, instrumentality,regulatory body, court, administrative tribunal, central bank or other entityexercising executive, legislative, judicial, taxing, regulatory oradministrative powers or functions of or pertaining to government, and any corporation or other entity owned orcontrolled, through stock or capital ownership or otherwise, by any of theforegoing.

 

“**Guaranty**”means the Guaranty made by the Guarantor(s) in favor of the AdministrativeAgent on behalf of the Lenders, substantially in the form of Exhibit H.

 

“**Guarantor(s)**”means Andrew Amplifiers, Inc. and any other Material Subsidiary that becomes aGuarantor by delivering the documents required by Section 6.1.5.

 

“**HazardousMaterial**” means:

 

(a)           any “hazardous substance”, as definedin Section 101(14) of CERCLA;

 

13

----

 

(b)           any petroleum product; or

 

(c)           any pollutant orcontaminant or hazardous, dangerous or toxic chemical, material or substancewithin the meaning of any other applicable federal, state or local law,regulation, ordinance or requirement (including consent decrees andadministrative orders binding on the Company or any of its Subsidiaries)relating to or imposing liability or standards of conduct concerning anyhazardous, toxic or dangerous waste, substance or material, all as amended orhereafter amended.

 

“**HedgingObligations**” means, with respect to any Person, all liabilitiesof such Person under interest rate swap agreements, interest rate capagreements and interest rate collar agreements, and all other agreements orarrangements designed to protect such Person against fluctuations in interestrates or currency exchange rates.

 

“**herein**”,“**hereof**”,“**hereto**”,“**hereunder**”and similar terms contained in this Agreement or any other Loan Document referto this Agreement or such other Loan Document, as the case may be, as a wholeand not to any particular Section, paragraph or provision of this Agreement orsuch other Loan Document.

 

“**ImpermissibleQualification**” means, relative to the opinion or certificationof any independent public accountant as to any financial statement of anyObligor, any qualification or exception to such opinion or certification:

 

(a)           which is of a “going concern” orsimilar nature;

 

(b)           which relates to the limited scope ofexamination of matters relevant to such financial statement; or

 

(c)           which relates to thetreatment or classification of any item in such financial statement and which,as a condition to its removal, would require an adjustment to such item the effectof which would be to cause such Obligor to be in default of any of itsobligations under Section 6.2.

 

“**including**”means including without limiting the generality of any description precedingsuch term, and, for purposes of this Agreement and each other Loan Document,the parties hereto agree that the rule of ejusdemgeneris shallnot be applicable to limit a general statement, which is followed by orreferable to an enumeration of specific matters, to matters similar to thematters specifically mentioned.

 

“**Indebtedness**”of any Person means, without duplication:

 

(a)           all obligations ofsuch Person for borrowed money and all obligations of such Person evidenced bybonds, debentures, notes or other similar instruments;

 

(b)           all obligations,contingent or otherwise, relative to the face amount of all letters of credit,whether or not drawn, and banker’s acceptances issued for the account of suchPerson;

 

14

----

 

(c)           all obligations ofsuch Person as lessee under leases which have been or should be, in accordancewith GAAP, recorded as Capitalized Lease Liabilities;

 

(d)           all other itemswhich, in accordance with GAAP, would be included as liabilities on theliability side of the balance sheet of such Person as of the date at whichIndebtedness is to be determined;

 

(e)           net liabilities ofsuch Person under all Hedging Obligations;

 

(f)            whether or not soincluded as liabilities in accordance with GAAP, all obligations of such Personto pay the deferred purchase price of property or services, and indebtedness(excluding prepaid interest thereon) secured by a Lien on property owned orbeing purchased by such Person (including indebtedness arising underconditional sales or other title retention agreements), whether or not suchindebtedness shall have been assumed by such Person or is limited in recourse;and

 

(g)           all ContingentLiabilities of such Person in respect of any of the foregoing.

 

“**IndemnifiedLiabilities**” is defined in Section 9.5.

 

“**Indemnitees**”is defined in Section 9.5.

 

“**InterestPayment Date**” means, (a) as to any Loan other than a Base RateLoan, the last day of each Interest Period applicable to such Loan; provided,however, that if any Interest Period for a Eurocurrency Rate CommittedLoan exceeds three months, the respective dates that fall every three monthsafter the beginning of such Interest Period shall also be Interest PaymentDates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the lastBusiness Day of each March, June, September and December and the Maturity Date.

 

“**InterestPeriod**” means as to each Eurocurrency Rate Committed Loan, theperiod commencing on the date such Eurocurrency Rate Committed Loan isdisbursed or converted to or continued as a Eurocurrency Rate Committed Loanand ending on the date one, two or three months thereafter, as selected by theCompany in its Committed Loan Notice; provided that:

 

(i)            any Interest Periodthat would otherwise end on a day that is not a Business Day shall be extendedto the next succeeding Business Day unless, in the case of a Eurocurrency RateCommitted Loan, such Business Day falls in another calendar month, in whichcase such Interest Period shall end on the next preceding Business Day;

 

(ii)           any Interest Periodpertaining to a Eurocurrency Rate Committed Loan that begins on the lastBusiness Day of a calendar month (or on a day for which there is no numericallycorresponding day in the calendar month at the end of such Interest Period)shall end on the last Business Day of the calendar month at the end of suchInterest Period; and

 

(iii)          no Interest Periodshall extend beyond the scheduled Maturity Date.

 

15

----

 

“**Investment**”means, relative to any Person,

 

(a)           any loan or advancemade by such Person to any other Person (excluding commission, travel andsimilar advances to officers and employees made in the ordinary course ofbusiness);

 

(b)           any ContingentLiability of such Person; and

 

(c)           any ownership orsimilar interest held by such Person in any other Person which is not aSubsidiary of such Person.

 

The amount of anyInvestment shall be the original principal or capital amount thereof less allreturns of principal or equity thereon (and without adjustment by reason of thefinancial condition of such other Person) and shall, if made by the transfer orexchange of property other than cash, be deemed to have been made in anoriginal principal or capital amount equal to the fair market value of suchproperty.

 

“**Laws**”means, collectively, all international, foreign, Federal, state and localstatutes, treaties, rules, guidelines, regulations, ordinances, codes andadministrative or judicial precedents or authorities, including theinterpretation or administration thereof by any Governmental Authority chargedwith the enforcement, interpretation or administration thereof, and allapplicable administrative orders, directed duties, requests, licenses,authorizations and permits of, and agreements with, any Governmental Authority,in each case whether or not having the force of law.

 

“**L/CAdvance**” means, with respect to each Lender, such Lender’sparticipation in any L/C Borrowing in accordance with its Pro Rata Share.

 

“**L/CBorrowing**” means an extension of credit resulting from a drawingunder any Letter of Credit which has not been reimbursed on the date when madeor refinanced as a Committed Borrowing.

 

“**L/CCredit Extension**” means, with respect to any Letter of Credit,the issuance thereof or extension of the expiry date thereof, or the renewal orincrease of the amount thereof.

 

“**L/CIssuer**” means Bank of America in its capacity as issuer ofLetters of Credit hereunder, or any successor issuer of Letters of Credithereunder.

 

“**L/CObligations**” means, as at any date of determination, theaggregate undrawn face amount of all outstanding Letters of Credit plusthe aggregate of all Unreimbursed Amounts, including all L/C Borrowings.

 

“**Lenders**”is defined in the preamble.

 

“**LendingOffice**” means, as to any Lender, the office or offices of suchLender described as such on Schedule 9.2, or such other office oroffices as a Lender may from time to time notify the Company and theAdministrative Agent.

 

16

----

 

“**Letter ofCredit**” means any letter of credit issued hereunder.  A Letter of Credit may be a commercialletter of credit or a standby letter of credit.

 

“**Letter ofCredit Application**” means an application and agreement for theissuance or amendment of a letter of credit in the form from time to time inuse by the L/C Issuer.

 

“**Letter ofCredit Expiration Date**” means the day that is seven days priorto the Maturity Date (or, if such day is not a Business Day, the next precedingBusiness Day).

 

“**Letter ofCredit Sublimit**” means an amount equal to the lesser of theAggregate Commitments and $35,000,000. The Letter of Credit Sublimit is part of, and not in addition to, theAggregate Commitments.

 

“**Lien**”means any security interest, mortgage, pledge, hypothecation, assignment,deposit arrangement, encumbrance, lien (statutory or otherwise), charge againstor interest in property to secure payment of a debt or performance of anobligation or other priority or preferential arrangement of any kind or naturewhatsoever.

 

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

 

“**LoanDocument**” means this Agreement, the Notes, the Guaranty and eachother agreement, document or instrument delivered in connection with thisAgreement, the Notes and the Guaranty.

 

“**LoanParties**” means, collectively, the Borrowers and the Guarantor.

 

“**MandatoryCost Rate**” means, with respect to any period, a rate per annumdetermined in accordance with Schedule 1.1.

 

“**MaterialSubsidiary**” means any Subsidiary of the Company incorporatedunder the laws of any state of the United States which as of any date ofdetermination (i) during the four immediately preceding Fiscal Quartersgenerated 5% or more of the Consolidated Operating Income of the Company, or(ii) owned 5% or more of the Consolidated Total Assets of the Company.

 

“**MaturityDate**” means (a) December 19, 2005, (b) such earlier dateupon which the Commitments may be terminated in accordance with the termshereof**,**or(c) such later date to which the tenor of the Aggregate Commitments may beextended in accordance with the terms hereof.

 

“**Notes**”means, collectively, the Committed Loan Notes and the Swing Line Note.

 

“**Obligations**”means all advances to, and debts, liabilities, obligations, covenants andduties of, any Loan Party arising under any Loan Document, whether direct orindirect (including those acquired by assumption), absolute or contingent, dueor to become due, now existing or hereafter arising and including interest thataccrues after the commencement by or against any

 

17

----

 

Loan Party of any proceeding under any Debtor Relief Laws naming suchPerson as the debtor in such proceeding.

 

“**Obligor**”means the Company, each other Borrower and the Guarantor(s) or any other Person(other than the Administrative Agent, the L/C Issuer or any Lender) obligatedunder any Loan Document.

 

“**OrganicDocument**” means, (a) with respect to any corporation, thecertificate or articles of incorporation and the bylaws; (b) with respect toany limited liability company, the articles of formation and operatingagreement; and (c) with respect to any partnership, joint venture, trust orother form of business entity, the partnership, joint venture or otherapplicable agreement of formation and any agreement, instrument, filing ornotice with respect thereto filed in connection with its formation with thesecretary of state or other department in the state of its formation, in eachcase as amended from time to time.

 

“**OutstandingAmount**” means (i) with respect to Committed Loans and Swing LineLoans on any date, the aggregate outstanding principal amount thereof aftergiving effect to any borrowings and prepayments or repayments of CommittedLoans and Swing Line Loans, as the case may be, occurring on such date; and(ii) with respect to any L/C Obligations on any date, the amount of such L/CObligations on such date after giving effect to any L/C Credit Extensionoccurring on such date and any other changes in the aggregate amount of the L/CObligations as of such date, including as a result of any reimbursements ofoutstanding unpaid drawings under any Letters of Credit or any reductions inthe maximum amount available for drawing under Letters of Credit taking effecton such date.

 

“**OvernightRate**” means, for any day, (a) with respect to any amountdenominated in Dollars, the Federal Funds Rate and (b) with respect to anyamount denominated in an Alternative Currency, the rate of interest per annumat which overnight deposits in the applicable Alternative Currency, in anamount approximately equal to the amount with respect to which such rate isbeing determined, would be offered for such day by Bank of America’s LondonBranch to major banks in the London interbank market.

 

“**Participant**”has the meaning specified in Section 9.7(d).

 

“**ParticipatingMember State**” means each state so described in any EMULegislation.

 

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

 

“**PensionPlan**” means a “pension plan”, as such term is defined insection 3(2) of ERISA, which is subject to Title IV of ERISA (other than amultiemployer plan as defined in section 4001(a)(3) of ERISA), and towhich the Company or any ERISA Affiliate may have liability, including anyliability by reason of having been a substantial employer within the meaning ofsection 4063 of ERISA at any time during the preceding five years, or byreason of being deemed to be a contributing sponsor under section 4069 ofERISA.

 

18

----

 

“**Plan**”means any “employee benefit plan” (as such term is defined in Section 3(3) ofERISA) established by any Borrower or any ERISA Affiliate.

 

“**Person**”means any natural person, corporation, partnership, firm, joint venture,limited liability company, association, trust, government, governmental agencyor any other entity, whether acting in an individual, fiduciary or othercapacity.

 

“**Pro RataShare**” means, with respect to each Lender, the percentage(carried out to the ninth decimal place) of the Aggregate Commitments set forthopposite the name of such Lender on Schedule 2.1, as such share may beadjusted as contemplated herein.

 

“**QuotationDate**” means, for any Interest Period, (a) for any currency otherthan Sterling, the date two Business Days prior to the commencement of suchInterest Period and (b) for Sterling, the first day of such Interest Period;provided that if market practice differs in the relevant interbank market forany currency, the “Quotation Date” for such currency shall be determined by theAdministrative Agent in accordance with market practice in the relevantinterbank market (and if quotations would normally be given by leading banks inthe relevant interbank market on more than one day, the “Quotation Date” shallbe the last of such days).

 

“**Register**”has the meaning set forth in Section 9.7(c).

 

“**RelatedParty**” means, with respect to any Person (i) any director(or Person holding the equivalent position) or officer (or Person holding theequivalent position) of such Person, and (ii) any other Person which,directly or indirectly, controls or is controlled by or under common controlwith such first Person (excluding any trustee under, or any committee withresponsibility for administering, a Plan). A Person shall be deemed to be

 

#### (a)           “controlled by” any other Person if(i) such other Person beneficially owns or holds, or directly orindirectly has the power to vote five percent (5%) or more (on a fully dilutedbasis) of the equity interest of such first Person or (ii) if such otherPerson has the power to direct or cause the direction of the management andpolicies of such first Person (whether by contract or otherwise); or

 

#### (b)           “controlled by” or “under commoncontrol with” another Person if such other Person is a member of the immediatefamily of a Person which is a Related Party of such first Person or is theexecutor, administrator or other personal representative of such first Person.

 

“**Release**”means a “release”, as such term is defined in CERCLA.

 

“**ReportableEvent**” has the meaning given to such term in ERISA.

 

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

 

19

----

 

“**RequiredLenders**” means Lenders having at least 51% of the AggregateCommitments or, if the Commitments have been terminated, Lenders holding atleast 51% of the then aggregate outstanding principal amount of the Notes thenheld by the Lenders.

 

“**Rights**”means, with respect to any Person, warrants, options or other rights to acquireEquity Interests in such Person.

 

“**SeniorNote Agreements**” means, collectively, those Note Agreements,each dated as of September 1, 1990, between the Company and certain purchasers,providing for the sale by the Company of its 9.52% Senior Notes due September30, 2005, as such Note Agreements are amended, modified or supplemented fromtime to time.

 

“**Sterling**”means the lawful currency of the United Kingdom.

 

“**Subsidiary**”means, as to any Person, (i) any corporation of which or in which suchPerson, such Person and one or more of its Subsidiaries, or one or moreSubsidiaries of such Person directly or indirectly own 50% or more of thecombined voting power of all classes of stock having general voting power underordinary circumstances to elect a majority of the board of directors of suchcorporation (irrespective of whether at the time capital stock of any otherclass or classes of such corporation shall or might have voting power upon theoccurrence of any contingency), (ii) any partnership, joint venture orsimilar entity of which or in which such Person, such Person and one or more ofits Subsidiaries, or one or more Subsidiaries of such Person directly orindirectly own 50% or more of the capital interest or profits interest or(iii) any trust, association or other unincorporated organization of whichor in which such Person, and one or more of its Subsidiaries, or one or moreSubsidiaries of such Person directly or indirectly own 50% or more of thebeneficial interest.

 

“**SupermajorityLenders**” means Lenders having at least 75% of the CommitmentAmount or, if the Commitments have been terminated, Lenders holding at least75% of the then aggregate outstanding principal amount of the Notes then heldby the Lenders.

 

“**SwingLine**” means the revolving credit facility made available by theSwing Line Lender pursuant to Section 2.4.

 

“**SwingLine Borrowing**” means a borrowing of a Swing Line Loan.

 

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

 

“**SwingLine Loan**” has the meaning specified in Section 2.4(a).

 

“**SwingLine Note**” means a promissory note made by the Company in favorof the Swing Line Lender evidencing Swing Line Loans made by such Lender,substantially in the form of Exhibit C-2.

 

“**SwingLine Loan Notice**” means a notice of a Swing Line Borrowingpursuant to Section 2.4(b), which, if in writing, shall be substantiallyin the form of Exhibit B.

 

20

----

 

“**SwingLine Sublimit**” means an amount equal to the lesser of (a)$10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, theAggregate Commitments.

 

“**SyndicationAgent**” is defined in the preamble.

 

“**TARGETDay**” means any day on which the Trans-European AutomatedReal-time Gross Settlement Express Transfer (TARGET) System (or, if suchclearing system ceases to be operative, such other clearing system (if any)reasonably determined by the Administrative Agent to be a suitable replacement)is operating.

 

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

 

“**UnitedStates**” or “**U.S.**” means the United States ofAmerica, its fifty States and the District of Columbia.

 

“**UnreimbursedAmount**” has the meaning set forth in Section 2.3(c)(i).

 

“**WelfarePlan**” means a “welfare plan”, as such term is defined insection 3(1) of ERISA.

 

“**Yen**”means the lawful currency of Japan.

 

1.2           **Use of Defined Terms**.  Unlessotherwise defined or the context otherwise requires, terms for which meaningsare provided in this Agreement shall have such meanings when used in theSchedules to this Agreement and in each Note, Loan Document, notice and othercommunication delivered from time to time in connection with this Agreement orany other Loan Document.

 

1.3           **Cross-References**. Unless otherwise specified, references in this Agreement and in eachother Loan Document to any Article or Section are references to such Article orSectionof this Agreement orsuch other Loan Document, as the case may be, and, unless otherwise specified,references in any Article, Section or definition to any clause are referencesto such clause of such Article, Section or definition.

 

1.4           **Rounding**.  Any financial ratios required to be maintained by the Borrowerspursuant to this Agreement shall be calculated by dividing the appropriatecomponent by the other component, carrying the result to one place more thanthe number of places by which such ratio is expressed herein and rounding theresult up or down to the nearest number (with a rounding-up if there is nonearest number).

 

1.5           **References to Agreements and Laws**.  Unless otherwise expressly provided herein, (a) references toagreements (including the Loan Documents) and other contractual instrumentsshall be deemed to include all subsequent amendments, restatements, extensions,supplements and other modifications thereto, but only to the extent that suchamendments, restatements, extensions, supplements and other modifications arenot prohibited by any Loan

 

21

----

 

Document; and (b) references to any Law shall includeall statutory and regulatory provisions consolidating, amending, replacing,supplementing or interpreting such Law.

 

1.6           **Exchange Rates; Alternative Currency Equivalents**. On each Calculation Date, the Administrative Agent shall determine theexchange rate as of such Calculation Date to be used for calculating relevantDollar Equivalent and Alternative Currency Equivalent amounts.  The exchange rates so determined shallbecome effective on such Calculation Date and shall for all purposes of thisAgreement (other than any provision expressly requiring the use of a current exchangerate) be the exchange rates employed in converting any amounts between theapplicable currencies.  Wherever in thisAgreement in connection with a Borrowing, conversion or continuation of a Loanor the issuance of a Letter of Credit, an amount, such as a required minimum ormultiple amount, is expressed in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in an AlternativeCurrency, such amount shall be the relevant Alternative Currency Equivalent ofsuch Dollar amount (rounded to the nearest 1,000 units of such AlternativeCurrency), as determined by the Administrative Agent.

 

1.7           **Redenomination of Sterling**.

 

#### (a)           At such time, if any, as the UnitedKingdom of Great Britain and Northern Ireland adopts the Euro as its lawfulcurrency, each obligation of each party to this Agreement to make a paymentdenominated in Sterling shall be redenominated into Euro at the time of suchadoption (in accordance with the applicable UK legislation and the EMULegislation).  If the basis of accrual ofinterest expressed in this Agreement in respect of Sterling shall beinconsistent with any convention or practice in the London interbank market forthe basis of accrual of interest in respect of the Euro, such expressed basisshall be replaced by such convention or practice with that applicable to theEuro; provided that if any Borrowing in Sterling is outstandingimmediately prior to such date, such replacement shall take effect, withrespect to such Borrowing, at the end of the then current Interest Period.

 

#### (b)           Each provision of this Agreementshall be subject to such reasonable changes of construction as theAdministrative Agent may from time to time specify by means of a written noticeto the Company to be appropriate to reflect the adoption of the Euro by anymember state of the European Union and any relevant market conventions orpractices relating to the Euro.

 

1.8           **Additional Committed Alternative Currencies**. The Company may from time to time request that Committed Loans and L/CCredit Extensions be made in a currency other than those specifically listed inthe definition of “Committed Alternative Currency;” provided that suchrequested currency otherwise meets the requirements set forth in suchdefinition.  Any such request shall bemade to the Administrative Agent (which shall promptly notify each Lenderthereof) not later than 10:00 a.m., Chicago time, ten Business Days prior tothe date of the desired Credit Extension.  Each Lender shall notify the AdministrativeAgent, not later than 10:00 a.m., Chicago time, five Business Days afterreceipt of such request whether it consents, in its sole discretion, to makingCommitted Loans and permitting L/C Credit Extensions in such requestedcurrency.  Any failure by a Lender torespond to such request within the time period

 

22

----

 

specified in thepreceding sentence shall be deemed to be a refusal by such Lender to makeCommitted Loans and to permit L/C Credit Extensions in such requestedcurrency.  If all the Lenders consent tomaking Committed Loans and permitting L/C Credit Extensions in such requestedcurrency, the Administrative Agent shall so notify the Company and suchcurrency shall thereupon be deemed for all purposes to be a CommittedAlternative Currency hereunder.

 

# **ARTICLE II**

# ** **

# **THE COMMITMENTS AND CREDIT EXTENSIONS**

 

2.1           **Committed Loans**. Subject to the terms and conditions set forth herein, each Lenderseverally agrees to make loans (each such loan, a “**Committed Loan**”) to theBorrowers in Dollars or in one or more Committed Alternative Currencies fromtime to time on any Business Day during the period from the Closing Date to theMaturity Date, in an aggregateamount not to exceed at any time outstandingthe amount of such Lender’s Commitment; provided, however, thatafter giving effect to any Committed Borrowing, the Dollar Equivalent of (i)the aggregate Outstanding Amount of all Loans and L/C Obligations shall notexceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount ofthe Committed Loans of any Lender, plus such Lender’s Pro Rata Share ofthe Outstanding Amount of all L/C Obligations, plus such Lender’s ProRata Share of the Outstanding Amount of all Swing Line Loans shall not exceedsuch Lender’s Commitment, and (iii) the aggregate Outstanding Amount of allLoans and L/C Obligations denominated in Alternative Currencies shall notexceed the Alternative Currency Sublimit. Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, theBorrowers may borrow under this Section 2.1, prepay under Section 2.5,and reborrow under this Section 2.1. Committed Loans may be Base Rate Loans or Eurocurrency Rate CommittedLoans, as further provided herein.

 

## 2.2           **Borrowings, Conversions and Continuations of CommittedLoans**.

 

#### (a)           Each Committed Borrowing, eachconversion of Committed Loans from one Type to the other, and each continuationof Committed Loans as the same Type shall be made upon the Company’sirrevocable notice to the Administrative Agent, which may be given bytelephone.  Each such notice must bereceived by the Administrative Agent not later than 11:00 a.m., Chicago time,(i) four Business Days prior to the requested date of any Committed Borrowingof, conversion to or continuation of Alternative Currency Loans, (ii) three BusinessDays prior to the requested date of any Committed Borrowing of, conversion toor continuation of Eurocurrency Rate Committed Loans (which are not AlternativeCurrency Loans) or of any conversion of Eurocurrency Rate Committed Loans(which are not Alternative Currency Loans) to Base Rate Loans, and (iii) on therequested date of any Committed Borrowing of Base Rate Loans.  Each such telephonic notice must beconfirmed promptly by delivery to the Administrative Agent of a writtenCommitted Loan Notice, appropriately completed and signed by an AuthorizedCorporate Officer of the Company.  EachCommitted Borrowing of, conversion to or continuation of Eurocurrency RateCommitted Loans shall be in a principal amount of $3,000,000 or a wholemultiple of $1,000,000 in excess thereof. Each Committed Borrowing of or conversion to Base Rate Loans shall be ina principal amount of $500,000 or a whole

####  

#### 23

#### 

####  

#### multiple of $500,000 inexcess thereof.  Each Committed Loan Notice(whether telephonic or written) shall specify (i) the applicable Borrower,(ii) whether the Borrower is requesting a Committed Borrowing, aconversion of Committed Loans from one Type to the other, or a continuation ofCommitted Loans as the same Type, (iii) the requested date of the Borrowing,conversion or continuation, as the case may be (which shall be a Business Day),(iv) the principal amount of Committed Loans to be borrowed, converted orcontinued, (v) the Type of Committed Loans to be borrowed or to which existingCommitted Loans are to be converted, (vi) the currency of the Committed Loansto the borrowed, and (vii) if applicable, the duration of the Interest Periodwith respect thereto.  If the Companyfails to specify a currency in a Committed Loan Notice requesting a Borrowing,then the Committed Loans so requested shall be made in Dollars.  If the Company fails to specify a Type ofCommitted Loan in a Committed Loan Notice or if the Company fails to give atimely notice requesting a conversion or continuation, then the applicableCommitted Loans shall be made or continued as, or converted to, Base RateLoans; provided, however, that in the case of a failure to timelyrequest a continuation of Committed Loans denominated in a currency other thanDollars, such Loans shall be continued as Eurocurrency Rate Committed Loans intheir original currency with an Interest Period of one month.  Any automatic conversion to Base Rate Loansshall be effective as of the last day of the Interest Period then in effectwith respect to the applicable Eurocurrency Rate Committed Loans.  If the Company requests a Borrowing of,conversion to, or continuation of Eurocurrency Rate Committed Loans in any suchCommitted Loan Notice, but fails to specify an Interest Period, it will bedeemed to have specified an Interest Period of one month.  No Committed Loan may be converted into orcontinued as a Committed Loan denominated in a different currency, but insteadmust be prepaid in the original currency of such Loan and reborrowed in theother currency.

 

#### (b)           Following receipt of a Committed LoanNotice, the Administrative Agent shall promptly notify each Lender of its ProRata Share of the applicable Committed Loans, and if no timely notice of aconversion or continuation is provided by the Company, the Administrative Agentshall notify each Lender of the details of any automatic conversion to BaseRate Loans or continuation of Committed Loans denominated in a currency otherthan Dollars, in each case as described in the preceding subsection.  In the case of a Committed Borrowing, eachLender shall make the amount of its Committed Loan available to theAdministrative Agent in immediately available funds at the AdministrativeAgent’s Office for the applicable currency not later than 1:00 p.m., Chicagotime, on the Business Day specified in the applicable Committed LoanNotice.  Upon satisfaction of theapplicable conditions set forth in Section 4.3 (and, if such Borrowingis the initial Credit Extension, Section 4.1), the Administrative Agentshall make all funds so received available to the applicable Borrower in likefunds as received by the Administrative Agent either by (i) crediting theaccount of the applicable Borrower on the books of Bank of America with theamount of such funds or (ii) wire transfer of such funds, in each case inaccordance with instructions provided to the Administrative Agent by theCompany; provided, however, that if, on the date of the CommittedBorrowing there are Swing Line Loans and/or L/C Borrowings outstanding, thenthe proceeds of such Borrowing shall be applied, first, to the paymentin full of any

####  

24

----

 

#### such L/C Borrowings, second,to the payment in full of any such Swing Line Loans, and third, to theapplicable Borrower as provided above, and provided, further,that if such Committed Borrowing is denominated in a Committed AlternativeCurrency, then a portion thereof equal to the Alternative Currency Equivalentof the then outstanding Swing Line Loans and L/C Borrowings shall beredenominated into Dollar Loans to permit the application specified in thepreceding proviso.

 

#### (c)           Except as otherwise provided herein,a Eurocurrency Rate Committed Loan may be continued or converted only on thelast day of the Interest Period for such Eurocurrency Rate Committed Loan.  During the existence of a Default or Eventof Default, no Committed Loans may be requested as, converted to or continuedas Eurocurrency Rate Committed Loans without the consent of the RequiredLenders, and the Required Lenders may demand that any or all of the thenoutstanding Eurocurrency Rate Committed Loans be converted immediately to BaseRate Committed Loans.  On the date ofany such conversion, any such Eurocurrency Rate Committed Loan that is anAlternative Currency Loan shall be redenominated into a Dollar Loan in aprincipal amount equal to the Dollar Equivalent of the amount of suchAlternative Currency Loan.

 

#### (d)           The Administrative Agent shallpromptly notify the Company and the Lenders of the interest rate applicable toany Eurocurrency Rate Committed Loan upon determination of such interestrate.  The determination of theEurocurrency Rate by the Administrative Agent shall be conclusive in theabsence of manifest error.  The AdministrativeAgent shall notify the Company and the Lenders of any change in Bank ofAmerica’s prime rate used in determining the Base Rate promptly following thepublic announcement of such change.

 

#### (e)           After giving effect to all CommittedBorrowings, all conversions of Committed Loans from one Type to the other, andall continuations of Committed Loans as the same Type, there shall not be morethan eight Interest Periods in effect with respect to Committed Loans.

 

## 2.3           **Letters of Credit**.

 

#### (a)           **TheLetter of Credit Commitment**.

 

##### (i)            Subject to the terms and conditionsset forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements ofthe other Lenders set forth in this Section 2.3, (1) from time to timeon any Business Day during the period from the Closing Date until the Letter ofCredit Expiration Date, to issue Letters of Credit denominated in Dollars or inone or more Committed Alternative Currencies for the account of the Borrowers,and to amend Letters of Credit previously issued by it, in accordance withsubsection (b) below, and (2) to honor drafts under the Letters of Credit; and(B) the Lenders severally agree to participate in Letters of Credit issued forthe account of any Borrower; provided that the L/C Issuer shall not beobligated to make any L/C Credit Extension with respect to any Letter ofCredit, and no Lender shall be obligated to participate in,

#####  

25

----

 

##### any Letter of Credit ifas of the date of such L/C Credit Extension, the Dollar Equivalent of (w) theOutstanding Amount of all L/C Obligations and all Loans would exceed theAggregate Commitments, (x) the aggregate Outstanding Amount of the CommittedLoans of any Lender, plus such Lender’s Pro Rata Share of theOutstanding Amount of all L/C Obligations, plus such Lender’s Pro RataShare of the Outstanding Amount of all Swing Line Loans would exceed suchLender’s Commitment, or (y) the Outstanding Amount of the L/C Obligations wouldexceed the Letter of Credit Sublimit, or (z) the aggregate Outstanding Amountof all L/C Obligations and all Loans denominated in Alternative Currencieswould exceed the Alternative Currency Sublimit.  Within the foregoing limits, and subject to the terms andconditions hereof, the Borrowers’ ability to obtain Letters of Credit shall befully revolving, and accordingly the Borrowers may, during the foregoingperiod, obtain Letters of Credit to replace Letters of Credit that have expiredor that have been drawn upon and reimbursed.

 

##### (ii)           The L/C Issuer shall be under noobligation to issue any Letter of Credit if:

 

###### (A)          any order, judgment or decree of anyGovernmental Authority or arbitrator shall by its terms purport to enjoin orrestrain the L/C Issuer from issuing such Letter of Credit, or any Lawapplicable to the L/C Issuer or any request or directive (whether or not havingthe force of law) from any Governmental Authority with jurisdiction over theL/C Issuer shall prohibit, or request that the L/C Issuer refrain from, theissuance of letters of credit generally or such Letter of Credit in particularor shall impose upon the L/C Issuer with respect to such Letter of Credit anyrestriction, reserve or capital requirement (for which the L/C Issuer is nototherwise compensated hereunder) not in effect on the Closing Date, or shallimpose upon the L/C Issuer any unreimbursed loss, cost or expense which was notapplicable on the Closing Date and which the L/C Issuer in good faith deemsmaterial to it;

 

###### (B)           the expiry date of such requestedLetter of Credit would occur after the Letter of Credit Expiration Date, unlessall the Lenders have approved such expiry date;

 

###### (C)           the issuance of such Letter of Creditwould violate one or more policies of the L/C Issuer; or

 

###### (D)          such Letter of Credit is in a faceamount less than $100,000, in the case of a commercial Letter of Credit, or$500,000, in the case of any other type of Letter of Credit.

 

##### (iii)          The L/C Issuer shall be under noobligation to amend any Letter of Credit if (A) the L/C Issuer would have noobligation at such time to issue such

#####  

26

----

 

##### Letter of Credit in itsamended form under the terms hereof, or (B) the beneficiary of such Letter ofCredit does not accept the proposed amendment to such Letter of Credit.

 

#### (b)           **Proceduresfor Issuance and Amendment of Letters of Credit**.

 

##### (i)            Each Letter of Credit shall beissued or amended, as the case may be, upon the request of the Companydelivered to the L/C Issuer (with a copy to the Administrative Agent) in theform of a Letter of Credit Application, appropriately completed and signed by aAuthorized Corporate Officer of the Company. Such Letter of Credit Application must be received by the L/C Issuer andthe Administrative Agent not later than 11:00 a.m., Chicago time, at least twoBusiness Days (or such later date and time as the L/C Issuer may agree in aparticular instance in its sole discretion) prior to the proposed issuance dateor date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit,such Letter of Credit Application shall specify in form and detail satisfactoryto the L/C Issuer: (A) the proposed issuance date of the requested Letter ofCredit (which shall be a Business Day); (B) the amount thereof; (C) the expirydate thereof; (D) the name and address of the beneficiary thereof; (E) thedocuments to be presented by such beneficiary in case of any drawingthereunder; (F) the full text of any certificate to be presented by suchbeneficiary in case of any drawing thereunder; and (G) such other matters asthe L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter ofCredit, such Letter of Credit Application shall specify in form and detailsatisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) theproposed date of amendment thereof (which shall be a Business Day); (C) thenature of the proposed amendment; and (D) such other matters as the L/C Issuermay reasonably require.

 

##### (ii)           Promptly after receipt of any Letterof Credit Application, the L/C Issuer will confirm with the AdministrativeAgent (by telephone or in writing) that the Administrative Agent has received acopy of such Letter of Credit Application from the Company and, if not, the L/CIssuer will provide the Administrative Agent with a copy thereof.  Upon receipt by the L/C Issuer ofconfirmation from the Administrative Agent that the requested issuance oramendment is permitted in accordance with the terms hereof, then, subject tothe terms and conditions hereof, the L/C Issuer shall, on the requested date,issue a Letter of Credit for the account of the applicable Borrower or enterinto the applicable amendment, as the case may be, in each case in accordancewith the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letterof Credit, each Lender shall be deemed to, and hereby irrevocably andunconditionally agrees to, purchase from the L/C Issuer a participation in suchLetter of Credit in an amount equal to the product of such Lender’s Pro RataShare times the amount of such Letter of Credit.

 

27

----

 

##### (iii)          Promptly after its delivery of anyLetter of Credit or any amendment to a Letter of Credit to an advising bankwith respect thereto or to the beneficiary thereof, the L/C Issuer will alsodeliver to the Company and the Administrative Agent a true and complete copy ofsuch Letter of Credit or amendment.

 

#### (c)           **Drawingsand Reimbursements; Funding of Participations**.

 

##### (i)            Upon any drawing under any Letter ofCredit, the L/C Issuer shall notify the Company and the Administrative Agentthereof.  Not later than 11:00 a.m.,Chicago time, on the date of any payment by the L/C Issuer under a Letter ofCredit (each such date, an “**Honor Date**”), the Borrowers shall reimbursethe L/C Issuer through the Administrative Agent in an amount equal to DollarEquivalent of the amount of such drawing. If the Borrowers fail to so reimburse the L/C Issuer by such time, theAdministrative Agent shall promptly notify each Lender of the Honor Date, theamount of the unreimbursed drawing (the “**Unreimbursed Amount**”), and such Lender’sPro Rata Share thereof.  In such event,the Borrowers shall be deemed to have requested a Committed Borrowing of BaseRate Loans to be disbursed on the Honor Date in an amount equal to theUnreimbursed Amount, without regard to the minimum and multiples specified in Section2.2 for the principal amount of Base Rate Loans, but subject to the amountof the unutilized portion of the Aggregate Commitments and the conditions setforth in Section 4.3 (other than the delivery of a Committed LoanNotice).  Any notice given by the L/CIssuer or the Administrative Agent pursuant to this Section 2.3(c)(i)may be given by telephone if immediately confirmed in writing; providedthat the lack of such an immediate confirmation shall not affect theconclusiveness or binding effect of such notice.

 

##### (ii)           Each Lender (including the Lenderacting as L/C Issuer) shall upon any notice pursuant to Section 2.3(c)(i)make funds available to the Administrative Agent for the account of the L/CIssuer at the Administrative Agent’s Office for Dollar-denominated payments inan amount equal to its Pro Rata Share of the Unreimbursed Amount not later than1:00 p.m., Chicago time, on the Business Day specified in such notice by theAdministrative Agent, whereupon, subject to the provisions of Section2.3(c)(iii), each Lender that so makes funds available shall be deemed tohave made a Base Rate Committed Loan to the Borrowers in such amount.  The Administrative Agent shall remit thefunds so received to the L/C Issuer.

 

##### (iii)          With respect to any UnreimbursedAmount that is not fully refinanced by a Committed Borrowing of Base Rate Loansbecause the conditions set forth in Section 4.3 cannot be satisfied orfor any other reason, the Borrowers shall be deemed to have incurred from theL/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that isnot so refinanced, which L/C Borrowing shall be due and payable on demand(together with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to the

#####  

28

----

 

##### Administrative Agent forthe account of the L/C Issuer pursuant to Section 2.3(c)(ii) shall bedeemed payment in respect of its participation in such L/C Borrowing and shallconstitute an L/C Advance from such Lender in satisfaction of its participationobligation under this Section 2.3.

 

##### (iv)          Until each Lender funds its CommittedLoan or L/C Advance pursuant to this Section 2.3(c) to reimburse the L/CIssuer for any amount drawn under any Letter of Credit, interest in respect ofsuch Lender’s Pro Rata Share of such amount shall be solely for the account ofthe L/C Issuer.

 

##### (v)           Each Lender’s obligation to makeCommitted Loans or L/C Advances to reimburse the L/C Issuer for amounts drawnunder Letters of Credit, as contemplated by this Section 2.3(c), shallbe absolute and unconditional and shall not be affected by any circumstance,including (A) any set-off, counterclaim, recoupment, defense or other rightwhich such Lender may have against the L/C Issuer, the Borrowers or any otherPerson for any reason whatsoever; (B) the occurrence or continuance of a Defaultor Event of Default, or (C) any other occurrence, event or condition, whetheror not similar to any of the foregoing. Any such reimbursement shall not relieve or otherwise impair theobligation of the Borrowers to reimburse the L/C Issuer for the amount of anypayment made by the L/C Issuer under any Letter of Credit, together withinterest as provided herein; provided, however, that eachLender’s obligation to make Committed Loans pursuant to this Section 2.3(c)is subject to the conditions set forth in Section 4.3 (other thandelivery of a Committed Loan Notice).

 

##### (vi)          If any Lender fails to make availableto the Administrative Agent for the account of the L/C Issuer any amountrequired to be paid by such Lender pursuant to the foregoing provisions of thisSection 2.3(c) by the time specified in Section 2.3(c)(ii), theL/C Issuer shall be entitled to recover from such Lender (acting through theAdministrative Agent), on demand, such amount with interest thereon for theperiod from the date such payment is required to the date on which such paymentis immediately available to the L/C Issuer at a rate per annum equal to theFederal Funds Rate from time to time in effect.  A certificate of the L/C Issuer submitted to any Lender (throughthe Administrative Agent) with respect to any amounts owing under this clause(vi) shall be conclusive absent manifest error.

 

#### (d)           **Repaymentof Participations**.

 

##### (i)            At any time after the L/C Issuer hasmade a payment under any Letter of Credit and has received from any Lender suchLender’s L/C Advance in respect of such payment in accordance with Section2.3(c), if the Administrative Agent receives for the account of the L/CIssuer any payment related to such Letter of Credit (whether directly from theBorrowers or otherwise, including proceeds of Cash Collateral applied theretoby the Administrative Agent), or any payment of interest thereon, theAdministrative Agent will distribute to such

#####  

29

----

 

##### Lender its Pro Rata Sharethereof in the same funds as those received by the Administrative Agent.

 

##### (ii)           If any payment received by theAdministrative Agent for the account of the L/C Issuer pursuant to Section2.3(c)(i) is required to be returned, each Lender shall pay to theAdministrative Agent for the account of the L/C Issuer its Pro Rata Sharethereof on demand of the Administrative Agent, plus interest thereon from thedate of such demand to the date such amount is returned by such Lender, at arate per annum equal to the Federal Funds Rate from time to time in effect.

 

#### (e)           **Obligations Absolute**.  The obligation of the Borrowers to reimbursethe L/C Issuer for each drawing under each Letter of Credit, and to repay eachL/C Borrowing and each drawing under a Letter of Credit that is refinanced by aBorrowing of Committed Loans, shall be absolute, unconditional and irrevocable,and shall be paid strictly in accordance with the terms of this Agreement underall circumstances, including the following:

 

##### (i)            any lack of validity or enforceabilityof such Letter of Credit, this Agreement, or any other agreement or instrumentrelating thereto;

 

##### (ii)           the existence of any claim,counterclaim, set-off, defense or other right that the Borrowers may have atany time against any beneficiary or any transferee of such Letter of Credit (orany Person for whom any such beneficiary or any such transferee may be acting),the L/C Issuer or any other Person, whether in connection with this Agreement,the transactions contemplated hereby or by such Letter of Credit or anyagreement or instrument relating thereto, or any unrelated transaction;

 

##### (iii)          any draft, demand, certificate orother document presented under such Letter of Credit proving to be forged,fraudulent, invalid or insufficient in any respect or any statement thereinbeing untrue or inaccurate in any respect; or any loss or delay in thetransmission or otherwise of any document required in order to make a drawingunder such Letter of Credit;

 

##### (iv)          any payment by the L/C Issuer undersuch Letter of Credit against presentation of a draft or certificate that doesnot strictly comply with the terms of such Letter of Credit; or any paymentmade by the L/C Issuer under such Letter of Credit to any Person purporting tobe a trustee in bankruptcy, debtor-in-possession, assignee for the benefit ofcreditors, liquidator, receiver or other representative of or successor to anybeneficiary or any transferee of such Letter of Credit, including any arisingin connection with any proceeding under any Debtor Relief Law; or

 

30

----

 

##### (v)           any other circumstance or happeningwhatsoever, whether or not similar to any of the foregoing, including any othercircumstance that might otherwise constitute a defense available to, or adischarge of, any Borrower.

 

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

 

#### (f)            **Role of L/C Issuer**.  Each Lender and the Borrowers agree that, inpaying any drawing under a Letter of Credit, the L/C Issuer shall not have anyresponsibility to obtain any document (other than any sight draft, certificatesand documents expressly required by the Letter of Credit) or to ascertain orinquire as to the validity or accuracy of any such document or the authority ofthe Person executing or delivering any such document.  No Agent-Related Person nor any of the respective correspondents,participants or assignees of the L/C Issuer shall be liable to any Lender for(i) any action taken or omitted in connection herewith at the request or withthe approval of the Lenders or the Required Lenders, as applicable; (ii) anyaction taken or omitted in the absence of gross negligence or willfulmisconduct; or (iii) the due execution, effectiveness, validity orenforceability of any document or instrument related to any Letter of Credit orLetter of Credit Application.  TheBorrowers hereby assume all risks of the acts or omissions of any beneficiaryor transferee with respect to its use of any Letter of Credit; provided,however, that this assumption is not intended to, and shall not,preclude the Borrowers’ pursuing such rights and remedies as any of them mayhave against the beneficiary or transferee at law or under any otheragreement.  No Agent-Related Person, norany of the respective correspondents, participants or assignees of the L/CIssuer, shall be liable or responsible for any of the matters described inclauses (i) through (v) of Section 2.3(e); provided, however,that anything in such clauses to the contrary notwithstanding, the Borrowersmay have a claim against the L/C Issuer, and the L/C Issuer may be liable tothe Borrowers, to the extent, but only to the extent, of any direct, as opposedto consequential or exemplary, damages suffered by the Borrowers which theBorrowers prove were caused by the L/C Issuer’s willful misconduct or grossnegligence or the L/C Issuer’s willful failure to pay under any Letter of Creditafter the presentation to it by the beneficiary of a sight draft andcertificate(s) strictly complying with the terms and conditions of a Letter ofCredit.  In furtherance and not inlimitation of the foregoing, the L/C Issuer may accept documents that appear ontheir face to be in order, without responsibility for further investigation,regardless of any notice or information to the contrary, and the L/C Issuershall not be responsible for the validity or sufficiency of any instrumenttransferring or assigning or purporting to transfer or assign a Letter ofCredit or the rights or benefits thereunder or proceeds thereof, in whole or inpart, which may prove to be invalid or ineffective for any reason.

 

#### (g)           **Cash Collateral**.  Upon the request of the AdministrativeAgent, (i) if the L/C Issuer has honored any full or partial drawing requestunder any Letter of Credit and

####  

31

----

 

#### such drawing has resultedin an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date,any Letter of Credit may for any reason remain outstanding and partially orwholly undrawn, or (iii) if an Event of Default has occurred and is continuingthe Borrowers shall immediately Cash Collateralize the then Outstanding Amountof all L/C Obligations (in an amount equal to the Dollar Equivalent of suchOutstanding Amount determined as of the date of such L/C Borrowing or theLetter of Credit Expiration Date, as the case may be).  The Administrative Agent may, at any timeand from time to time after the initial deposit of Cash Collateral, requestthat additional Cash Collateral be provided in order to protect against theresults of exchange rate fluctuations.

 

#### (h)           **Applicability of ISP98 and UCP**.  Unless otherwise expressly agreed by the L/CIssuer and the Company when a Letter of Credit is issued (including any suchagreement applicable to an Existing Letter of Credit), (i) the rules of the“International Standby Practices 1998” published by the Institute ofInternational Banking Law & Practice (or such later version thereof as maybe in effect at the time of issuance) shall apply to each standby Letter ofCredit, and (ii) the rules of the Uniform Customs and Practice for DocumentaryCredits, as most recently published by the International Chamber of Commerce(the “**ICC**”)at the time of issuance (including the ICC decision published by the Commissionon Banking Technique and Practice on April 6, 1998 regarding the Europeansingle currency (euro)) shall apply to each commercial Letter of Credit.

 

#### (i)            **Letter ofCredit Fees**.  TheBorrowers shall pay to the Administrative Agent for the account of each Lenderin accordance with its Pro Rata Share a Letter of Credit fee for each Letter ofCredit equal to the Applicable L/C Fee Rate times the actual dailymaximum amount available to be drawn under each Letter of Credit.  Such fee for each Letter of Credit shall bedue and payable on the last Business Day of each March, June, September andDecember, commencing with the first such date to occur after the issuance ofsuch Letter of Credit, and on the Letter of Credit Expiration Date.  If there is any change in the Applicable L/CFee Rate during any quarter, the actual daily amount of each Letter of Creditshall be computed and multiplied by the Applicable L/C Fee Rate separately foreach period during such quarter that such Applicable L/C Fee Rate was ineffect.

 

#### (j)            **FrontingFee and Documentary and Processing Charges Payable to L/C Issuer**.  The Borrowers shall pay directly to the L/CIssuer for its own account a fronting fee in an amount with respect to eachLetter of Credit, equal to 1/8 of 1% per annum on the daily maximum amountavailable to be drawn thereunder, due and payable quarterly in arrears on thelast Business Day of each March, June, September and December, commencing withthe first such date to occur after the issuance of such Letter of Credit, andon the Letter of Credit Expiration Date. In addition, the Borrowers shall pay directly to the L/C Issuer for itsown account the customary issuance, presentation, amendment and otherprocessing fees, and other standard costs and charges, of the L/C Issuerrelating to letters of credit as from time to time in effect.  Such fees and charges are due and payable ondemand and are nonrefundable.

 

32

----

 

#### (k)           **Conflictwith Letter of Credit Application**.  In the event of any conflict between the terms hereof and theterms of any Letter of Credit Application, the terms hereof shall control.

 

## 2.4           **Swing Line Loans**.

 

#### (a)           **The Swing Line**.  Subject to the terms and conditions setforth herein, the Swing Line Lender agrees to make loans in Dollars (each suchloan, a “**SwingLine Loan**”) to the Company from time to time on any Business Dayduring the period from the Closing Date to the Maturity Date in an aggregateamount not to exceed at any time outstanding the amount of the Swing LineSublimit, notwithstanding the fact that such Swing Line Loans, when aggregatedwith the Dollar Equivalent of the Outstanding Amount of Committed Loans of theSwing Line Lender in its capacity as a Lender of Committed Loans, may exceedthe amount of such Lender’s Commitment; provided, however, thatafter giving effect to any Swing Line Loan, the Dollar Equivalent of (i) theaggregate Outstanding Amount of all Loans and L/C Obligations shall not exceedthe Aggregate Commitments, and (ii) the aggregate Outstanding Amount of theCommitted Loans of any Lender, plus such Lender’s Pro Rata Share of theOutstanding Amount of all L/C Obligations, plus such Lender’s Pro RataShare of the Outstanding Amount of all Swing Line Loans shall not exceed suchLender’s Commitment, and provided, further, that the Swing LineLender shall not make any Swing Line Loan to refinance an outstanding SwingLine Loan.  Within the foregoing limits,and subject to the other terms and conditions hereof, the Company may borrowunder this Section 2.4, prepay under Section 2.5, and reborrowunder this Section 2.4; provided, however, that the SwingLine Lender may terminate or suspend the Swing Line at any time in its solediscretion upon notice to the Company. Each Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making of a Swing LineLoan, each Lender shall be deemed to, and hereby irrevocably and unconditionallyagrees to, purchase from the Swing Line Lender a risk participation in suchSwing Line Loan in an amount equal to the product of such Lender’s Pro RataShare times the amount of such Swing Line Loan.

 

#### (b)           **Borrowing Procedures**.  Unless the Swing Line Lender has notifiedthe Company that the Swing Line has been terminated or suspended as provided inSection 2.4, each Swing Line Borrowing shall be made upon the Company’sirrevocable notice to the Swing Line Lender and the Administrative Agent, whichmay be given by telephone. Each such notice must be received by the Swing LineLender and the Administrative Agent not later than 1:00 p.m., Chicago time, onthe requested borrowing date, and shall specify (i) the amount to be borrowed,which shall be a minimum of $100,000, and (ii) the requested borrowing date,which shall be a Business Day.  Eachsuch telephonic notice must be confirmed promptly by delivery to the Swing LineLender and the Administrative Agent of a written Swing Line Loan Notice,appropriately completed and signed by a Authorized Corporate Officer of theCompany.  Promptly after receipt by theSwing Line Lender of any telephonic Swing Line Loan Notice, the Swing LineLender will confirm with the Administrative Agent (by telephone or in writing)that the Administrative Agent has also received such Swing Line Loan Noticeand, if not, the Swing Line Lender will notify the Administrative Agent (bytelephone or in writing) of

####  

33

----

 

#### the contentsthereof.  Unless the Swing Line Lenderhas received notice (by telephone or in writing) from the Administrative Agent(including at the request of any Lender) prior to 2:00 p.m., Chicago time, onthe date of the proposed Swing Line Borrowing (A) directing the Swing LineLender not to make such Swing Line Loan as a result of the limitations setforth in the first proviso to the first sentence of Section 2.4(a), or(B) that one or more of the applicable conditions specified in Article IVis not then satisfied, then, subject to the terms and conditions hereof, theSwing Line Lender will, not later than 3:00 p.m., Chicago time, on theborrowing date specified in such Swing Line Loan Notice, make the amount of itsSwing Line Loan available to the applicable Borrower at its office by creditingthe account of the applicable Borrower on the books of the Swing Line Lender inimmediately available funds.

 

#### (c)           **Refinancingof Swing Line Loans**.

 

##### (i)            The Swing Line Lender at any time inits sole and absolute discretion may request, on behalf of the Borrowers (whichhereby irrevocably request the Swing Line Lender to act on their behalf), thateach Lender make a Committed Base Rate Loan in an amount equal to such Lender’sPro Rata Share of the amount of Swing Line Loans then outstanding.  Such request shall be made in accordancewith the requirements of Section 2.2, without regard to the minimum andmultiples specified therein for the principal amount of Base Rate Loans, butsubject to the unutilized portion of the Aggregate Commitments and theconditions set forth in Section 4.3.  The Swing Line Lender shall furnish the Company with a copy ofthe applicable Committed Loan Notice promptly after delivering such notice tothe Administrative Agent.  Each Lendershall make an amount equal to its Pro Rata Share of the amount specified insuch Committed Loan Notice available to the Administrative Agent in immediatelyavailable funds for the account of the Swing Line Lender at the AdministrativeAgent’s Office not later than 1:00 p.m., Chicago time, on the day specified insuch Committed Loan Notice, whereupon, subject to Section 2.4(c)(ii),each Lender that so makes funds available shall be deemed to have made aCommitted Base Rate Loan to the Borrowers in such amount.  The Administrative Agent shall remit thefunds so received to the Swing Line Lender.

 

##### (ii)           If for any reason any CommittedBorrowing cannot be requested in accordance with Section 2.4(c)(i) orany Swing Line Loan cannot be refinanced by such a Committed Borrowing, theCommitted Loan Notice submitted by the Swing Line Lender shall be deemed to bea request by the Swing Line Lender that each of the Lenders fund itsparticipation in the relevant Swing Line Loan and each Lender’s payment to theAdministrative Agent for the account of the Swing Line Lender pursuant to Section2.4(c)(i) shall be deemed payment in respect of such participation.

 

##### (iii)          If any Lender fails to make availableto the Administrative Agent for the account of the Swing Line Lender any amountrequired to be paid by such Lender pursuant to the foregoing provisions of thisSection 2.4(c) by the time

#####  

34

----

 

##### specified in Section2.4(c)(i), the Swing Line Lender shall be entitled to recover from suchLender (acting through the Administrative Agent), on demand, such amount withinterest thereon for the period from the date such payment is required to thedate on which such payment is immediately available to the Swing Line Lender ata rate per annum equal to the Federal Funds Rate from time to time ineffect.  A certificate of the Swing LineLender submitted to any Lender (through the Administrative Agent) with respectto any amounts owing under this clause (iii) shall be conclusive absentmanifest error.

#####  

##### (iv)          Each Lender’s obligation to makeCommitted Loans or to purchase and fund participations in Swing Line Loanspursuant to this Section 2.4(c) shall be absolute and unconditional andshall not be affected by any circumstance, including (A) any set-off,counterclaim, recoupment, defense or other right which such Lender may haveagainst the Swing Line Lender, the Borrowers or any other Person for any reasonwhatsoever, (B) the occurrence or continuance of a Default or Event of Default,or (C) any other occurrence, event or condition, whether or not similar to anyof the foregoing.  Any such purchase ofparticipations shall not relieve or otherwise impair the obligation of theBorrowers to repay Swing Line Loans, together with interest as provided herein.

 

#### (d)           **Repaymentof Participations**.

 

##### (i)            At any time after any Lender haspurchased and funded a participation in a Swing Line Loan, if the Swing LineLender receives any payment on account of such Swing Line Loan, the Swing LineLender will distribute to such Lender its Pro Rata Share of such payment(appropriately adjusted, in the case of interest payments, to reflect theperiod of time during which such Lender’s participation was outstanding andfunded) in the same funds as those received by the Swing Line Lender.

 

##### (ii)           If any payment received by the SwingLine Lender in respect of principal or interest on any Swing Line Loan isrequired to be returned by the Swing Line Lender, each Lender shall pay to theSwing Line Lender its Pro Rata Share thereof on demand of the AdministrativeAgent, plus interest thereon from the date of such demand to the date suchamount is returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent will make suchdemand upon the request of the Swing Line Lender.

 

#### (e)           **Interest for Account of Swing Line Lender**.  The Swing Line Lender shall be responsiblefor invoicing the Borrowers for interest on the Swing Line Loans.  Until each Lender funds its Committed BaseRate Loan or participation pursuant to this Section 2.4 to refinance suchLender’s Pro Rata Share of any Swing Line Loan, interest in respect of such ProRata Share shall be solely for the account of the Swing Line Lender.

 

35

----

 

#### (f)            **Payments Directly to Swing Line Lender**.  The Borrowers shall make all payments ofprincipal and interest in respect of the Swing Line Loans directly to the SwingLine Lender.

 

## 2.5           **Prepayments**.

 

#### (a)           The Borrowers may, upon notice by theCompany to the Administrative Agent, at any time or from time to timevoluntarily prepay Committed Loans in whole or in part without premium orpenalty; provided that (i) such notice must be received by theAdministrative Agent not later than 11:00 a.m., Chicago time, (A) threeBusiness Days prior to any date of prepayment of Eurocurrency Rate CommittedLoans, and (B) on the date of prepayment of Base Rate Committed Loans; (ii) anyprepayment of Eurocurrency Rate Committed Loans shall be in a principal amountof $500,000 or a whole multiple of $500,000 in excess thereof (or theAlternative Currency Equivalent thereof determined on the date notice ofprepayment is given); and (iii) any prepayment of Base Rate Committed Loansshall be in a principal amount of $500,000 or a whole multiple of $100,000 inexcess thereof.  Each such notice shallspecify the date and amount of such prepayment and the Type(s) of CommittedLoans to be prepaid.  The AdministrativeAgent will promptly notify each Lender of its receipt of each such notice, andof such Lender’s Pro Rata Share of such prepayment.  If such notice is given by the Company, the Borrowers shall makesuch prepayment and the payment amount specified in such notice shall be dueand payable on the date specified therein. Any prepayment of a Eurocurrency Rate Committed Loan shall beaccompanied by all accrued interest thereon, together with any additionalamounts required pursuant to Section 3.5.  Each such prepayment shall be applied to the Committed Loans ofthe Lenders in accordance with their respective Pro Rata Shares.

 

#### (b)           The Borrowers may, upon notice by theCompany to the Swing Line Lender (with a copy to the Administrative Agent), atany time or from time to time, voluntarily prepay Swing Line Loans in whole orin part without premium or penalty; provided that (i) such notice mustbe received by the Swing Line Lender and the Administrative Agent not laterthan 1:00 p.m., Chicago time, on the date of the prepayment, and (ii) any suchprepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date andamount of such prepayment.  If suchnotice is given by the Company, the Borrowers shall make such prepayment andthe payment amount specified in such notice shall be due and payable on thedate specified therein.

 

#### (c)           If the Administrative Agent notifiesthe Company at any time that the Dollar Equivalent of the Outstanding Amount ofall Loans and L/C Obligations at such time exceeds an amount equal to 105% ofthe Aggregate Commitments then in effect, the Borrowers shall, within two BusinessDays after receipt of such notice, prepay Loans and/or Cash Collateralize theL/C Obligations in an aggregate amount sufficient to reduce the DollarEquivalent of such Outstanding Amount to an amount not to exceed 100% of theAggregate Commitments then in effect.

 

36

----

 

2.6           **Reduction or Termination of Commitments**.  The Company may, upon notice to the Administrative Agent,terminate the Aggregate Commitments, or permanently reduce the AggregateCommitments to an amount not less than the then Outstanding Amount of all Loansand L/C Obligations; provided that (i) any such notice shall be receivedby the Administrative Agent not later than 11:00 a.m., (Chicago time) threeBusiness Days prior to the date of termination or reduction, and (ii) any suchpartial reduction shall be in an aggregate amount of $5,000,000 or any wholemultiple of $5,000,000 in excess thereof. The Administrative Agent shall promptly notify the Lenders of any suchnotice of reduction or termination of the Aggregate Commitments.  Once reduced in accordance with thisSection, the Commitments may not be increased. Any reduction of the Aggregate Commitments shall be applied to theCommitment of each Lender according to its Pro Rata Share.  All commitment fees accrued until theeffective date of any termination of the Aggregate Commitments shall be paid onthe effective date of such termination.

 

## 2.7           **Repayment of Loans**.

 

#### (a)           The Borrowers shall repay to theLenders on the Maturity Date the aggregate principal amount of Committed Loansoutstanding on such date.

 

#### (b)           The Borrowers shall repay each SwingLine Loan on the earlier to occur of (i) the date five Business Days after suchLoan is made and (ii) the Maturity Date.

 

## 2.8           **Interest**.

 

#### (a)           Subject to the provisions ofsubsection (b) below, (i) each Eurocurrency Rate Committed Loan shall bearinterest on the outstanding principal amount thereof for each Interest Periodat a rate per annum equal to the Eurocurrency Rate for such Interest Period plusthe Applicable Margin; (ii) each Base Rate Committed Loan shall bear intereston the outstanding principal amount thereof from the applicable borrowing dateat a rate per annum equal to the Base Rate plus the Applicable Margin;(iii) each Swing Line Loan shall bear interest on the outstanding principalamount thereof from the applicable borrowing date at a rate per annum equal tothe Base Rate plus the Applicable Margin.

 

#### (b)           While any Event of Default exists orafter acceleration, the Borrowers shall pay interest on the principal amount ofall outstanding Obligations at a fluctuating interest rate per annum at alltimes equal to the Default Rate to the fullest extent permitted by applicableLaw.  Accrued and unpaid interest onpast due amounts (including interest on past due interest) shall be due andpayable upon demand.

 

#### (c)           Interest on each Loan shall be dueand payable in arrears on each Interest Payment Date applicable thereto and atsuch other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the termshereof before and after judgment, and before and after the commencement of anyproceeding under any Debtor Relief Law.

 

37

----

 

2.9           **Fees**. In addition to certain fees described in subsections (i) and (j) of Section 2.3:

 

#### (a)           **Commitment Fee**.  The Borrowers shall pay to theAdministrative Agent for the account of each Lender in accordance with its ProRata Share, a commitment fee equal to the Applicable Commitment Fee Percentage timesthe actual daily amount by which the Aggregate Commitments exceed the sum of(i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amountof L/C Obligations.  The commitment feeshall accrue at all times from the Closing Date until the Maturity Date andshall be due and payable quarterly in arrears on the last Business Day of eachMarch, June, September and December, commencing with the first such date tooccur after the Closing Date, and on the Maturity Date.  The commitment fee shall be calculatedquarterly in arrears.  The commitmentfee shall accrue at all times, including at any time during which one or moreof the conditions in Article IV is not met.

 

#### (b)           **Arrangement and Agency Fees**.  The Company shall pay to the Arranger andthe Administrative Agent for the Arranger’s and the Administrative Agent’s ownaccounts, such non-refundable fees as may be from time to time separatelyagreed to among the Company, the Arranger and the Administrative Agent in aletter agreement (the “**Agent/Arranger Fee Letter**”).

 

2.10         **Computation of Interest and Fees**.  Computation of interest on Base Rate Loans shall be calculated onthe basis of a year of 365 or 366 days, as the case may be, and the actualnumber of days elapsed.  Computation ofall other types of interest and all fees shall be calculated on the basis of ayear of 360 days and the actual number of days elapsed, which results in ahigher yield to the payee thereof than a method based on a year of 365 or 366days, or, in the case of interest in respect of Loans denominated inAlternative Currencies as to which market practice differs from the foregoing,in accordance with such market practice. Interest shall accrue on each Loan for the day on which the Loan ismade, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or suchportion is paid, provided that any Loan that is repaid on the same dayon which it is made shall bear interest for one day.

 

2.11         **Evidence of Debt**.

 

#### (a)           The Credit Extensions made by eachLender shall be evidenced by one or more accounts or records maintained by suchLender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by theAdministrative Agent and each Lender shall be conclusive absent manifest errorof the amount of the Credit Extensions made by the Lenders to the Borrowers andthe interest and payments thereon.  Anyfailure so to record or any error in doing so shall not, however, limit orotherwise affect the obligation of the Borrowers hereunder to pay any amountowing with respect to the Loans and L/C Obligations.  In the event of any conflict between the accounts and recordsmaintained by any Lender and the accounts and records of the AdministrativeAgent in respect of such matters, the accounts and records of such Lender shallcontrol.  Upon the request of any Lendermade through the Administrative Agent, such Lender’s Loans may be evidenced bya Committed Loan

####  

38

----

 

#### Note and/or a Swing LineNote, as applicable, in addition to such accounts or records.  Each Lender may attach schedules to itsNote(s) and endorse thereon the date, Type (if applicable), amount and maturityof the applicable Loans and payments with respect thereto.

 

#### (b)           In addition to the accounts andrecords referred to in subsection (a), each Lender and the Administrative Agentshall maintain in accordance with its usual practice accounts or recordsevidencing the purchases and sales by such Lender of participations in Lettersof Credit and Swing Line Loans.  In theevent of any conflict between the accounts and records maintained by theAdministrative Agent and the accounts and records of any Lender in respect ofsuch matters, the accounts and records of the Administrative Agent shallcontrol.

 

## 2.12         **Payments Generally**.

 

#### (a)           All payments to be made by theBorrowers shall be made without condition or deduction for any counterclaim,defense, recoupment or setoff.  Exceptas otherwise expressly provided herein and except with respect to principal ofand interest on Loans denominated in an Alternative Currency, all payments bythe Borrowers hereunder shall be made to the Administrative Agent, for theaccount of the respective Lenders to which such payment is owed, at theapplicable Administrative Agent’s Office in Dollars and in immediatelyavailable funds not later than 12:00 noon, Chicago time, on the date specifiedherein.  Except as otherwise expresslyprovided herein, all payments by the Borrowers hereunder with respect toprincipal, interest on Loans denominated in an Alternative Currency shall bemade to the Administrative Agent, for the account of the respective Lenders towhich such payment is owed, at the applicable Administrative Agent’s Office insuch Alternative Currency and in immediately available funds not later than12:00 noon, Chicago time, on the date specified herein.  The Administrative Agent will promptlydistribute to each Lender its Pro Rata Share (or other applicable share asprovided herein) of such payment in like funds as received by wire transfer tosuch Lender’s Lending Office.  Allpayments received by the Administrative Agent after 12:00 noon, Chicago time,shall be deemed received on the next succeeding Business Day and any applicableinterest or fee shall continue to accrue.

 

#### (b)           Subject to the definition of“Interest Period,” if any payment to be made by the Borrowers shall come due ona day other than a Business Day, payment shall be made on the next followingBusiness Day, and such extension of time shall be reflected in computinginterest or fees, as the case may be.

 

#### (c)           If at any time insufficient funds arereceived by and available to the Administrative Agent to pay fully all amountsof principal, L/C Borrowings, interest and fees then due hereunder, such fundsshall be applied (i) first, toward costs and expenses (includingAttorney Costs and amounts payable under Article III) incurred by theAdministrative Agent and each Lender, (ii) second, toward repayment ofinterest and fees then due hereunder, ratably among the parties entitledthereto in accordance with the amounts of interest and fees then due to suchparties, and (iii) third, toward repayment of

####  

39

----

 

#### principal and L/C Borrowingsthen due hereunder, ratably among the parties entitled thereto in accordancewith the amounts of principal and L/C Borrowings then due to such parties.

 

#### (d)           Unless the Company or any Lender hasnotified the Administrative Agent prior to the date any payment is required tobe made by it to the Administrative Agent hereunder, that the Borrowers or suchLender, as the case may be, will not make such payment, the AdministrativeAgent may assume that the Borrowers or such Lender, as the case may be, has timelymade such payment and may (but shall not be so required to), in reliancethereon, make available a corresponding amount to the Person entitledthereto.  If and to the extent that suchpayment was not in fact made to the Administrative Agent in immediatelyavailable funds, then:

 

##### (i)            if the Borrowers failed to make suchpayment, each Lender shall forthwith on demand repay to the AdministrativeAgent the portion of such assumed payment that was made available to suchLender in immediately available funds, together with interest thereon inrespect of each day from and including the date such amount was made availableby the Administrative Agent to such Lender to the date such amount is repaid tothe Administrative Agent in immediately available funds, at the applicableOvernight Rate from time to time in effect; and

 

##### (ii)           if any Lender failed to make suchpayment, such Lender shall forthwith on demand pay to the Administrative Agentthe amount thereof in immediately available funds, together with interest thereonfor the period from the date such amount was made available by theAdministrative Agent to the Borrowers to the date such amount is recovered bythe Administrative Agent (the “**Compensation Period**”) at a rate per annumequal to the applicable Overnight Rate from time to time in effect. If suchLender pays such amount to the Administrative Agent, then such amount shallconstitute such Lender’s Committed Loan included in the applicableBorrowing.  If such Lender does not paysuch amount forthwith upon the Administrative Agent’s demand therefor, theAdministrative Agent may make a demand therefor upon the Borrowers, and theBorrowers shall pay such amount to the Administrative Agent, together withinterest thereon for the Compensation Period at a rate per annum equal to therate of interest applicable to the applicable Borrowing.  Nothing herein shall be deemed to relieveany Lender from its obligation to fulfill its Commitment or to prejudice anyrights which the Administrative Agent or the Borrowers may have against anyLender as a result of any default by such Lender hereunder.

 

A notice of the Administrative Agent to any Lender with respect to anyamount owing under this subsection (d) shall be conclusive, absent manifesterror.

 

#### (e)           If any Lender makes available to theAdministrative Agent funds for any Loan to be made by such Lender as providedin the foregoing provisions of this Article II, and the conditions tothe applicable Credit Extension set forth in Article IV are

####  

40

----

 

#### not satisfied or waivedin accordance with the terms hereof, the Administrative Agent shall return suchfunds (in like funds as received from such Lender) to such Lender, withoutinterest.

 

#### (f)            The obligations of the Lendershereunder to make Committed Loans and to fund participations in Letters ofCredit and Swing Line Loans are several and not joint.  The failure of any Lender to make anyCommitted Loan or to fund any such participation on any date required hereundershall not relieve any other Lender of its corresponding obligation to do so onsuch date, and no Lender shall be responsible for the failure of any otherLender to so make its Committed Loan or purchase its participation.

 

#### (g)           Nothing herein shall be deemed toobligate any Lender to obtain the funds for any Loan in any particular place ormanner or to constitute a representation by any Lender that it has obtained orwill obtain the funds for any Loan in any particular place or manner.

 

2.13         **Sharing of Payments**.  If, other than as expressly provided elsewhere herein, any Lendershall obtain on account of the Committed Loans made by it, or theparticipations in L/C Obligations or in Swing Line Loans held by it, anypayment (whether voluntary, involuntary, through the exercise of any right ofset-off, or otherwise) in excess of its ratable share (or other sharecontemplated hereunder) thereof, such Lender shall immediately (a) notify theAdministrative Agent of such fact, and (b) purchase from the other Lenders suchparticipations in the Committed Loans made by them and/orsuch subparticipations in the participations in L/C Obligations or Swing LineLoans held by them, as the case may be, as shall be necessary to cause suchpurchasing Lender to share the excess payment in respect of such Committed Loanor such participations, as the case may be, pro rata with each of them; provided,however, that if all or any portion of such excess payment is thereafterrecovered from the purchasing Lender, such purchase shall to that extent berescinded and each other Lender shall repay to the purchasing Lender thepurchase price paid therefor, together with an amount equal to such payingLender’s ratable share (according to the proportion of(i) the amount of such paying Lender’s required repayment to (ii) the totalamount so recovered from the purchasing Lender) of any interest or otheramount paid or payable by the purchasing Lender in respect of the total amountso recovered.  The Borrowers agree thatany Lender so purchasing a participation from another Lender may, to thefullest extent permitted by law, exercise all its rights of payment (includingthe right of set-off, but subject to Section 9.9 with respect to suchparticipation as fully as if such Lender were the direct creditor of the Borrowersin the amount of such participation. The Administrative Agent will keep records (which shall be conclusiveand binding in the absence of manifest error) of participations purchased underthis Section and will in each case notify the Lenders following any suchpurchases or repayments.  Each Lenderthat purchases a participation pursuant to this Section shall from and aftersuch purchase have the right to give all notices, requests, demands, directionsand other communications under this Agreement with respect to the portion ofthe Obligations purchased to the same extent as though the purchasing Lenderwere the original owner of the Obligations purchased.

 

41

----

 

# **ARTICLE III**

# ** **

# **TAXES, YIELD PROTECTION AND ILLEGALITY**

 

3.1           **Tax****es**.

 

#### (a)           Any and all payments by the Borrowersto or for the account of the Administrative Agent or any Lender under any LoanDocument shall be made free and clear of and without deduction for any and allpresent or future taxes, duties, levies, imposts, deductions, assessments,fees, withholdings or similar charges, and all liabilities with respectthereto, excluding, in the case of the Administrative Agent and eachLender, taxes imposed on or measured by its net income, and franchise taxesimposed on it (in lieu of net income taxes), by the jurisdiction (or anypolitical subdivision thereof) under the Laws of which the Administrative Agentor such Lender, as the case may be, is organized or maintains a lending office(all such non-excluded taxes, duties, levies, imposts, deductions, assessments,fees, withholdings or similar charges, and liabilities being hereinafterreferred to as “**Taxes**”).  If theBorrowers shall be required by any Laws to deduct any Taxes from or in respectof any sum payable under any Loan Document to the Administrative Agent or anyLender, (i) the sum payable shall be increased as necessary so that aftermaking all required deductions (including deductions applicable to additionalsums payable under this Section), the Administrative Agent and such Lenderreceives an amount equal to the sum it would have received had no suchdeductions been made, (ii) the Borrowers shall make such deductions, (iii) theBorrowers shall pay the full amount deducted to the relevant taxation authorityor other authority in accordance with applicable Laws, and (iv) within 30 daysafter the date of such payment, the Borrowers shall furnish to theAdministrative Agent (which shall forward the same to such Lender) the originalor a certified copy of a receipt evidencing payment thereof.

 

#### (b)           In addition, the Borrowers agree topay any and all present or future stamp, court or documentary taxes and anyother excise or property taxes or charges or similar levies which arise fromany payment made under any Loan Document or from the execution, delivery,performance, enforcement or registration of, or otherwise with respect to, anyLoan Document (hereinafter referred to as “**Other Taxes**”).

 

#### (c)           If the Borrowers shall be required todeduct or pay any Taxes or Other Taxes from or in respect of any sum payableunder any Loan Document to the Administrative Agent or any Lender, theBorrowers shall also pay to the Administrative Agent (for the account of suchLender) or to such Lender, at the time interest is paid, such additional amountthat such Lender specifies as necessary to preserve the after-tax yield (afterfactoring in all taxes, including taxes imposed on or measured by net income)such Lender would have received if such Taxes or Other Taxes had not beenimposed.

 

#### (d)           The Borrowers agree to indemnify theAdministrative Agent and each Lender for (i) the full amount of Taxes and OtherTaxes (including any Taxes or Other Taxes imposed or asserted by anyjurisdiction on amounts payable under this Section) paid by the AdministrativeAgent and such Lender, (ii) amounts payable under

####  

42

----

 

#### Section 3.1(c)and (iii) any liability (including penalties, interest and expenses) arisingtherefrom or with respect thereto, in each case whether or not such Taxes orOther Taxes were correctly or legally imposed or asserted by the relevantGovernmental Authority.  Payment underthis subsection (d) shall be made within 30 days after the date the Lender orthe Administrative Agent makes a demand therefor.

 

3.2           **Illegality**.  If any Lender determines that any Law has made it unlawful, orthat any Governmental Authority has asserted that it is unlawful, for anyLender or its applicable Lending Office to make, maintain or fund EurocurrencyRate Committed Loans, or materially restricts the authority of such Lender topurchase or sell, or to take deposits of, Dollars or any Alternative Currencyin the applicable offshore interbank market for such currency, or to determineor charge interest rates based upon the Eurocurrency Rate, then, on noticethereof by such Lender to the Company through the Administrative Agent, anyobligation of such Lender to make or continue Eurocurrency Rate Committed Loansor to convert Base Rate Committed Loans to Eurocurrency Rate Committed Loansshall be suspended until such Lender notifies the Administrative Agent andthe Company that the circumstances giving rise to such determination no longerexist.  Upon receipt of such notice, theBorrowers shall, upon demand from such Lender (with a copy to theAdministrative Agent), prepay or, if applicable, convert all Eurocurrency RateCommitted Loans of such Lender to Base Rate Loans, either on the last day ofthe Interest Period thereof, if such Lender may lawfully continue to maintainsuch Eurocurrency Rate Committed Loans to such day, or immediately, if suchLender may not lawfully continue to maintain such Eurocurrency Rate CommittedLoans; provided that on the date of any such conversion, any suchEurocurrency Rate Committed Loan that is an Alternative Currency Loan shall beredenominated into a Dollar Loan in a principal amount equal to the DollarEquivalent of the amount of such Alternative Currency Loan.  Upon any such prepayment or conversion, theBorrowers shall also pay interest on the amount so prepaid or converted.  Each Lender agrees to designate a differentLending Office if such designation will avoid the need for such notice and willnot, in the good faith judgment of such Lender, otherwise be materiallydisadvantageous to such Lender.

 

3.3           **Inability to Determine Rates**.  If the Administrative Agent determines in connection with anyrequest for a Eurocurrency Rate Committed Loan or a conversion to orcontinuation thereof that (a) deposits in the relevant currency are not beingoffered to banks in the applicable offshore interbank market for such currencyfor the applicable amount and Interest Period of such Eurocurrency RateCommitted Loan, (b) adequate and reasonable means do not exist for determining theEurocurrency Rate for such Eurocurrency Rate Committed Loan, or (c) theEurocurrency Rate for such Eurocurrency Rate Committed Loan does not adequatelyand fairly reflect the cost to the Lenders of funding such Eurocurrency RateCommitted Loan, the Administrative Agent will promptly notify the Company andall Lenders.  Thereafter, the obligationof the Lenders to make or maintain Eurocurrency RateCommitted Loans shallbe suspended until the Administrative Agent revokes such notice.  Upon receipt ofsuch notice, theCompany may revoke any pending request for a Committed Borrowing, conversion orcontinuation of Eurocurrency Rate Committed Loans or, failing that, will bedeemed to have converted such request into a request for a Committed Borrowingof Base Rate Loans in the amount specified therein.

 

43

----

 

3.4           **Increased Cost and Reduced Return; Capital Adequacy;Reserves on Eurocurrency Rate Committed Loans**.

 

#### (a)           If any Lender determines that as aresult of the introduction of or any change in or in the interpretation of anyLaw, or such Lender’s compliance therewith, there shall be any increase in thecost to such Lender of agreeing to make or making, funding or maintainingEurocurrency Rate Committed Loans or (as the case may be) issuing orparticipating in Letters of Credit, or a reduction in the amount received orreceivable by such Lender in connection with any of the foregoing (excludingfor purposes of this subsection (a) any such increased costs or reduction inamount resulting from (i) Taxes or Other Taxes (as to which Section 3.1shall govern), (ii) changes in the basis of taxation of overall net income oroverall gross income by the United States or any foreign jurisdiction or anypolitical subdivision of either thereof under the Laws of which such Lender isorganized or has its Lending Office, and (iii) reserve requirementscontemplated by Section 3.4(c), then from time to time upon demand ofsuch Lender (with a copy of such demand to the Administrative Agent), theBorrowers shall pay to such Lender such additional amounts as will compensatesuch Lender for such increased cost or reduction.

 

#### (b)           If any Lender determines that theintroduction of any Law regarding capital adequacy or any change therein or inthe interpretation thereof, or compliance by such Lender (or its LendingOffice) therewith, has the effect of reducing the rate of return on the capitalof such Lender or any corporation controlling such Lender as a consequence ofsuch Lender’s obligations hereunder (taking into consideration its policieswith respect to capital adequacy and such Lender’s desired return on capital),then from time to time upon demand of such Lender (with a copy of such demandto the Administrative Agent), the Borrowers shall pay to such Lender suchadditional amounts as will compensate such Lender for such reduction.

 

#### (c)           The Borrowers shall pay to eachLender, as long as such Lender shall be required under regulations of the Boardto maintain reserves with respect to liabilities or assets consisting of orincluding Eurocurrency funds or deposits (currently known as “Eurocurrencyliabilities”), additional costs on the unpaid principal amount of eachEurocurrency Rate Committed Loan equal to the actual costs of such reserves allocatedto such Loan by such Lender (as determined by such Lender in good faith, whichdetermination shall be conclusive), which shall be due and payable on each dateon which interest is payable on such Loan, provided the Company shallhave received at least 15 days’ prior notice (with a copy to the AdministrativeAgent) of such additional interest from such Lender.  If a Lender fails to give notice 15 days prior to the relevantInterest Payment Date, such additional interest shall be due and payable 15 daysfrom receipt of such notice.

 

3.5           **FundingLosses**.  Upondemand of any Lender (with a copy to the Administrative Agent) from time totime, the Borrowers shall promptly compensate such Lender for and hold suchLender harmless from any loss, cost or expense incurred by it as a result of:

 

44

----

 

#### (a)           anycontinuation, conversion, payment or prepayment of any Loan other than a BaseRate Loan on a day other than the last day of the Interest Period for such Loan(whether voluntary, mandatory, automatic, by reason of acceleration, orotherwise); or

 

#### (b)           anyfailure by the Borrowers (for a reason other than the failure of such Lender tomake a Loan) to prepay, borrow, continue or convert any Loan other than a BaseRate Loan on the date or in the amount notified by the Borrowers; or

 

#### (c)           anyassignment of a Eurocurrency Rate Committed Loan on a day other than the lastday of the Interest Period therefor as a result of a request by the Companypursuant to Section 9.16; or

 

#### (d)           duringthe 180-day period following the Closing Date, the syndication of the Loans bythe Arranger;

 

includingany loss of anticipated profits andany loss or expense arising from the liquidation or reemployment of fundsobtained by it to maintain such Loan or from fees payable to terminate thedeposits from which such funds were obtained.  The Borrowers shall also pay any customaryadministrative fees charged by such Lender in connection with the foregoing.

 

For purposes of calculating amounts payable by theBorrowers to the Lenders under this Section 3.5, each Lender shall be deemed to have funded eachEurocurrency Rate Committed Loan made by it at the Eurocurrency Rate for suchLoan by a matching deposit or other borrowing in the applicable offshoreinterbank market for such currency for a comparable amount and for a comparableperiod, whether or not such Eurocurrency Rate Committed Loan was in fact sofunded.

 

3.6           **Matters Applicable to all Requests for Compensation**.

 

#### (a)           A certificate of the AdministrativeAgent or any Lender claiming compensation under this Article III andsetting forth the additional amount or amounts to be paid to it hereunder shallbe conclusive in the absence of manifest error.  In determining such amount, the Administrative Agent or suchLender may use any reasonable averaging and attribution methods.

 

#### (b)           Upon any Lender’s making a claim forcompensation under Section 3.1 or 3.4, the Borrowers mayremove or replace such Lender in accordance with Section 9.16.

 

3.7           **Survival**.  All of the Borrowers’ obligations under thisArticle III shall survive termination of the Commitments and payment infull of all the other Obligations.

 

45

----

 

# **ARTICLE IV**

# ** **

# **CONDITIONS TO BORROWING**

 

4.1           **Initial Borrowingof the Company**.  Theeffectiveness of this Agreement shall be subject to the prior or concurrentsatisfaction of each of the conditions precedent set forth in this Section 4.1.The obligations of the Lenders to fund an initial Borrowing of the Companyshall be subject to the prior or concurrent satisfaction of each of theconditions precedent set forth in this Section 4.1, inaddition to the applicable conditions precedent set forth in Section 4.3.

 

4.1.1        **CompanyResolutions, etc**.  TheAdministrative Agent shall have received from the Company, in sufficient numberof counterpart originals to provide one to each Lender, a certificate, dated the date of the initialBorrowing, of its Secretary or Assistant Secretary as to

 

#### (a)           resolutions of its Board of Directorsthen in full force and effect authorizing the execution, delivery andperformance of this Agreement and the Notes and authorizing the borrowingshereunder and each other Loan Document to be executed by it;

 

#### (b)           all documents evidencing other corporateaction necessary for the execution, delivery and performance of any LoanDocument;

 

#### (c)           all approvals or consents, if any,with respect to this Agreement and the Notes;

 

#### (d)           the incumbency and signatures ofthose of its officers authorized to sign to this Agreement, the Notes and eachother Loan Document executed by it; and

 

#### (e)           copies of the Certificate ofIncorporation and Bylaws of the Company,

upon whichcertificate each Lender may conclusively rely until it shall have received afurther certificate of the Secretary of the Company canceling or amending suchprior certificate.

 

4.1.2        **Guarantor Resolutions, etc**.  The Administrative Agent shall have receivedfrom the Guarantor, in sufficient number of counterpart originals to provideone to each Lender, a certificate, dated the date of the initial Borrowing, ofits Secretary or Assistant Secretary as to

 

#### (a)           resolutions of its Board of Directorsthen in full force and effect authorizing the execution, delivery andperformance of the Guaranty and each other Loan Document to be executed by it;

 

46

----

 

#### (b)           all documents evidencing othercorporate action necessary for the execution, delivery and performance of anyLoan Document;

 

#### (c)           all approvals or consents, if any,with respect to the Guaranty;

 

#### (d)           the incumbency and signatures ofthose of its officers authorized to sign to the Guaranty and each other LoanDocument executed by it; and

 

#### (e)           copies of the Certificate ofIncorporation and Bylaws of the Guarantor,

 

upon whichcertificate each Lender may conclusively rely until it shall have received afurther certificate of the Secretary of the Guarantor canceling or amendingsuch prior certificate.

 

4.1.3        **Deliveryof Notes**.  TheAdministrative Agent shall have received, for the account of each Lender, theNotes of the Company duly executed and delivered by the Company.

 

4.1.4        **Delivery of Guaranty**.  The Administrative Agent shall havereceived, in sufficient number of counterpart copies to provide one to each Lender,the Guaranty duly executed and delivered by the Guarantor.

 

4.1.5        **Paymentof Outstanding Indebtedness, etc****.** All Indebtedness identified in Item 4.1.5 of the DisclosureSchedule together with all interest, all prepayment premiums and other amountsdue and payable with respect thereto, shall have been paid in full (including,to the extent necessary, from proceeds of the initial Borrowing); and allLiens, if any, securing payment of any such Indebtedness have been released andthe Administrative Agent shall have received all Uniform Commercial Code FormUCC-3 termination statements or other instruments as may be suitable orappropriate in connection therewith.

 

4.1.6        **Opinionof Counsel**.  TheAdministrative Agent shall have received, in sufficient number of counterpartoriginals to provide one to each Lender, an opinion addressed to theAdministrative Agent and all Lenders, from Gardner, Carton & Douglas,counsel to the Company and the Guarantor, substantially in the form of ExhibitI hereto;

 

4.1.7        **Expenses,etc****.** The Administrative Agent shall have received for its own account allreasonable fees, costs and expenses due and payable pursuant to Section 9.4,if then invoiced.

 

4.2           **InitialBorrowing of a Designated Subsidiary**.  Theobligations of the Lenders to fund an initial Borrowing of any DesignatedSubsidiary shall be subject to the prior or concurrent satisfaction of each ofthe conditions precedent in this Section 4.2, in addition to theapplicable conditions precedent set forth in Sections 4.1 and 4.3.

 

47

----

 

4.2.1        **DesignationLetter**.  TheAdministrative Agent shall have received, in sufficient number of counterpartoriginals to provide one to each Lender, a Designation Letter for suchDesignated Subsidiary.

 

4.2.2        **Notes**.  TheAdministrative Agent shall have received, for the account of each Lender, theNotes of such Designated Subsidiary, duly executed and delivered by suchDesignated Subsidiary.

 

4.2.3        **Authorizations****and Approvals**.  TheAdministrative Agent shall have received authenticated copies of all suchgovernmental authorizations, consents, approvals, and licenses as may berequired under applicable law and regulations for each Borrower then borrowingto make and perform this Agreement and the Notes and to borrow and (in the caseof the Company) guaranty Loans hereunder.

 

4.2.4        **Guaranty**.  TheAdministrative Agent shall have received, in sufficient number of counterpartoriginals to provide one to each Lender, a Company Guaranty, duly executed bythe Company, of the obligations of such Designated Subsidiary under thisAgreement and the Notes of such Designated Subsidiary.

 

4.2.5        **Resolutions**.  TheAdministrative Agent shall have received a copy, duly certified by theDesignated Subsidiary’s secretary or an assistant secretary and in sufficientnumber of counterpart originals to provide one to each Lender, of (i) theresolutions of the Designated Subsidiary’s Board of Directors authorizing theexecution and delivery of the Designation Letter and the Notes of suchDesignated Subsidiary and authorizing the borrowings thereunder, (ii) alldocuments evidencing other necessary corporate action, (iii) all approvalsor consents, if any, with respect to the Designation Letter and such DesignatedSubsidiary’s Notes, and (iv) the Organic Documents of the DesignatedSubsidiary.

 

4.2.6        **Incumbency**.  TheAdministrative Agent shall have received, in sufficient number of counterpartoriginals to provide one to each Lender a certificate of the DesignatedSubsidiary’s secretary, assistant secretary or manager certifying the names ofthe Designated Subsidiary’s officers authorized to sign the Designation Letter,the Notes of such Designated Subsidiary and all other documents or certificatesto be delivered to the Administrative Agent or any Lender, together with thetrue signatures of such officers.

 

4.2.7        **Opinionof Couns****el**.  TheAdministrative Agent shall have received, in sufficient number of counterpartoriginals to provide one to each Lender, an opinion addressed to the AdministrativeAgent and all Lenders, from Gardner, Carton & Douglas, counsel to theCompany, or such other law firm as is reasonably acceptable to theAdministrative Agent, as to the execution, delivery and performance by theCompany of theGuaranty required by Section 4.2.4 and the execution, delivery andperformance of the Notes of the Designated Subsidiary required by Section4.2.2 and in form and content acceptable to the Administrative Agent.

 

48

----

 

4.3           **AllCredit Extensions**.  Theobligation of each Lender to fund any Loan on the occasion of any Borrowing(including the initial Borrowing) and the obligation of the L/C Issuer to issueany Letter of Credit shall be subject to the satisfaction of each of the conditionsprecedent set forth in this Section 4.3.

 

4.3.1        **Compliancewith Warranties, No Default, etc**. Both before and after giving effect to any Credit Extension thefollowing statements shall be true and correct and certified as such by acertificate of the president, chief financial officer (or, if none, the chieffinancial Authorized Corporate Officer) of the Company delivered by the Companyto the Administrative Agent:

 

#### (a)           the representations and warrantiesset forth in Article V (excluding, however, those contained in Section 5.7,5.8 and 5.9) shall be true and correct with the same effect as ifthen made (unless stated to relate solely to an earlier date, in which casesuch representations and warranties shall be true and correct as of suchearlier date) except for such changes as are specifically permitted hereunder;

 

#### (b)           except as disclosed by the Company tothe Administrative Agent and the Lenders pursuant to Section 5.7

 

(i)            no laborcontroversy, litigation, arbitration or governmental investigation orproceeding shall be pending or, to the knowledge of the Company, threatenedagainst the Company or any of its Subsidiaries which might reasonably beexpected to materially adversely affect the Company’s consolidated business,operations, assets, revenues, properties or prospects or which purports toaffect the legality, validity or enforceability of this Agreement, the Notes orany other Loan Document; and

 

(ii)           no developmentshall have occurred in any labor controversy, litigation, arbitration or governmentalinvestigation or proceeding disclosed pursuant to Section 5.7 whichmight reasonably be expected to materially adversely affect the consolidatedbusinesses, operations, assets, revenues, properties or prospects of theCompany and its Subsidiaries;

 

#### (c)           no Default shall have then occurredand be continuing, and neither the Company nor any of its Subsidiaries are inmaterial violation of any law or governmental regulation or court order ordecree.

 

4.3.2        **Request****for Extension**.  TheAdministrative Agent and, if applicable, the Swing Line Lender or the L/CIssuer shall have received a Request for Credit Extension in accordance withthe requirements hereof.  Each of therequest for a Credit Extension and the acceptance by the Company or any otherBorrower of the proceeds of such Credit Extension shall constitute (a) a representation andwarranty by the Company and any

 

49

----

 

such other Borrower that on the date of such CreditExtension (both immediately before and after giving effect to such CreditExtension and the application of theproceedsof any Borrowing) the statements made in Section 4.3.1 are true andcorrect and (b) the certification required by such section.

 

4.3.3        **Insurance**. There shall have been no material change, or notice of prospectivematerial change in the nature, extent, scope or cost of the insurance referredto in Section 5.12 which change would have a material adverseeffect on the financial condition of the Company and its Subsidiaries on aconsolidated basis or would significantly adversely affect the Company’s or anyother Borrower’s ability to perform its obligations under this Agreement orunder any Note.

 

4.3.4        **Form U-1**.  Atany time at which the current value of the margin stock owned by any Borrowerexceeds 25% of the value of such Borrower’s assets which may not be pledged ormade subject to a Lien pursuant to the terms hereof, such Borrower shall havedelivered to the Administrative Agent with each request for a Borrowing forsuch Borrower, a statement for such Borrower in conformity with therequirements of Federal Reserve Form U-1 referred to in Regulation U of theF.R.S. Board.

 

4.3.5        **Satisfactory****Legal Form**.  Alldocuments executed or submitted pursuant hereto by or on behalf of the Company,any other Borrower, any of the Company’s Subsidiaries or any other Obligorsshall be satisfactory in form and substance to the Administrative Agent and its counsel; theAdministrative Agent and its counsel shall have received all information,approvals, opinions, documents or instruments as the Administrative Agent orits counsel may reasonably request.

 

# **ARTICLE V**REPRESENTATIONS AND WARRANTIES

 

In order to inducethe Lenders and the Administrative Agent to enter into this Agreement and tomake Loans hereunder, the Company represents and warrants unto theAdministrative Agent and each Lender as set forth in this Article V.

 

5.1           **Organization,etc****.** The Company and each of its Subsidiaries is a corporation validlyorganized and existing and in good standing under the laws of the jurisdictionof its incorporation or formation and is duly qualified to do business and isin good standing as a foreign corporation in each jurisdiction where the natureof its business requires such qualification, except such jurisdictions wherefailure to so qualify and be in good standing is not reasonably likely to havea material adverse effect on the operations or financial condition of theCompany and its Subsidiaries taken as a whole. Each Obligor has, and each Subsidiary upon becoming a DesignatedSubsidiary will have, full power and authority and holds, and will hold, allrequisite governmental consents and other approvals to enter into, deliver andperform its Obligations under this Agreement, its Notes and each other LoanDocument to which it is a party and to own and hold under lease its propertyand to conduct its business substantially as currently conducted by it.

 

50

----

 

5.2           **Due Authorization, Non-Contravention, etc****.** The execution, delivery and performance by the Company of thisAgreement, the Notes and each other Loan Documentexecuted or to beexecuted by it and the execution, delivery and performance by each DesignatedSubsidiary or other Obligor of each Loan Document executed or to be executed byit are within the Company’s and each such Designated Subsidiary’s or otherObligor’s corporate or limited liability company powers, have been dulyauthorized by all necessary corporate or limited liability company action, anddo not

 

#### (a)           contravene the Company’s, anyDesignated Subsidiary’s or any such other Obligor’s Organic Documents;

 

#### (b)           contravene any contractualrestriction, law or governmental regulation or court decree or order binding onthe Company, any such Designated Subsidiary or any such other Obligor; or

 

#### (c)           result in, or require the creation orimposition of, any Lien on any of the Company’s, any Designated Subsidiary’s orany other Obligor’s properties.

 

5.3           **GovernmentApproval, Regulation, etc****.** The Company and its Subsidiaries are in material compliance with allstatutes and governmental rules and regulations applicable to them and noauthorization or approval or other action by, and no notice to or filing with,any governmental authority or regulatory body or other Person is required forthe due execution, delivery or performance by the Company, any DesignatedSubsidiary or any other Obligor of this Agreement, the Notes or any other LoanDocument to which it is a party. Neither the Company nor any of its Subsidiaries is an “investmentcompany” within the meaning of the Investment Company Act of 1940, as amended,or 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 “holdingcompany”, within the meaning of the Public Utility Holding Company Act of 1935,as amended.

 

5.4           **Validity,etc****.** This Agreement constitutes, and the Notes and each other Loan Documentexecuted by the Company, on the due execution and delivery thereof, constitute,the legal, valid and binding obligations of the Company, enforceable inaccordance with their respective terms, except as enforceability may be limitedby bankruptcy, insolvency or other similar laws of general application affectingthe enforcement of creditors’ rights or by general principles of equitylimiting the availability of equitable remedies; and each Loan Documentexecuted pursuant hereto by each Designated Subsidiary or other Obligor, will,on the due execution and delivery thereof by such Designated Subsidiary orother Obligor, be the legal, valid and binding obligation of such DesignatedSubsidiary or other Obligor enforceable in accordance with its terms, with likeexception.

 

5.5           **FinancialInformation**.  Theaudited consolidated balance sheets of the Company and its Subsidiaries as atSeptember 30, 2002, and the related statements of earnings and cash flow of theCompany and each of its Subsidiaries, copies of which have been furnished tothe Administrative Agent and each Lender, have been prepared in accordance withGAAP consistently applied, and present fairly the consolidated financialcondition of the corporations

 

51

----

 

covered thereby asat the dates thereof and the results of their operations for the periods thenended.

 

5.6           **NoMaterial Adverse Change**. Since the dates of the financial statements described in Section 5.5,there has been no material adverse change in the financial condition,operations, assets, business, properties or prospects of the Company and itsSubsidiaries taken as a whole.

 

5.7           **Litigation,Labor Controversies, etc****.** There is no pending or, to the knowledge of the Company, threatenedlitigation, action or proceeding against the Company or any of its Subsidiaries or labor controversy involvingthe Company or any of its Subsidiaries or any of their respective properties,which might reasonably be expected to materially adversely affect the financialcondition, operations, assets, business, properties or prospects of the Companyand its Subsidiaries taken as a whole or which purports to affect the legality,validity or enforceability of this Agreement, the Notes or any other LoanDocument, except as disclosed in Item 5.7 (“Litigation”) or Item 5.14(“Environmental Matters”) of the Disclosure Schedule.

 

5.8           **Subsidiaries**.  TheCompany has no Subsidiaries, except those Subsidiaries

 

#### (a)           which are identified in Item 5.8(“Existing Subsidiaries”) of the Disclosure Schedule; or

 

#### (b)           which are permitted to have beenacquired after the Closing Date in accordance with Section 6.2.4.

 

5.9           **Partnerships;Joint Ventures**. Neither the Company nor any of its Subsidiaries is a partner or a jointventurer in any partnership or joint venture other than the partnerships andjoint ventures which are identified in Item 5.9 (“Partnerships and JointVentures”) of the Disclosure Schedule.

 

5.10         **Ownershipof Properties**.  TheCompany and each of its Subsidiaries owns good and marketable title to all ofits properties and assets, real and personal, tangible and intangible, of anynature whatsoever (including patents, trademarks, trade names, service marksand copyrights), free and clear of all Liens, charges or claims (includinginfringement claims with respect to patents, trademarks, copyrights and thelike) except as permitted pursuant to Section 6.2.1.

 

5.11         **Taxes**.  TheCompany and each of its Subsidiaries has filed all tax returns and reportsrequired by law to have been filed by it and have paid all taxes andgovernmental charges thereby shown to be owing, except any such taxes orcharges which are being diligently contested in good faith by appropriateproceedings and for which adequate reserves in accordance with GAAP shall havebeen set aside on its books.

 

5.12         **Insuranc****e**.  TheCompany and each of its Subsidiaries maintain insurance, includingself-insurance, to such extent and against such hazards and liabilities as iscommonly maintained by companies similarly situated.

 

52

----

 

5.13         **Pensionand Welfare Plans**. During the twelve-consecutive-month period prior to the date of theexecution and delivery of this Agreement and prior to the date of any Borrowinghereunder, no Reportable Event has occurred, no steps have been taken by thePBGC,theCompany or an ERISA Affiliate to terminate or withdraw from any Pension Plan,and no contribution failure has occurred with respect to any Pension Plansufficient to give rise to a Lien under section 302(f) of ERISA.  No condition exists or event or transactionhas occurred with respect to any Pension Plan which might result in theincurrence by the Company or any ERISA Affiliate of any material liability,fine or penalty.  Except as disclosed inItem 5.13 (“Employee Benefit Plans”) of the Disclosure Schedule, neitherthe Company nor any ERISA Affiliate hasany contingentliability with respect to any post-retirement benefit under a Welfare Plan,other than liability for continuation coverage described in Part 6 of Title Iof ERISA.

 

5.14         **EnvironmentalWarranties**.

 

#### (a)           Except as set forth in Item 5.14(“Environmental Matters”) of the Disclosure Schedule, all facilities andproperty (including underlying groundwater) owned or leased by the Company orany of its Subsidiaries have been, and continue to be, owned or leased by theCompany and its Subsidiaries in material compliance with all EnvironmentalLaws.

 

#### (b)           Except as set forth in Item 5.14(“Environmental Matters”) of the Disclosure Schedule, there have been no past,and there are no pending or, to the Company’s knowledge, threatened

 

##### (i)            claims, complaints, notices orrequests for information received by the Company or any of its Subsidiarieswith respect to any alleged violation of any Environmental Law, or

 

##### (ii)           complaints, notices or inquiries tothe Company or any of its Subsidiaries regarding potential liability under anyEnvironmental Law

 

which mightreasonably be expected to materially adversely affect the financial condition,operations, assets, business, properties or prospects of the Company and itsSubsidiaries taken as a whole.

 

#### (c)           Except as set forth in Item 5.14(“Environmental Matters”) of the Disclosure Schedule, there have been noReleases of Hazardous Materials at, on or under any property now or previouslyowned or leased by the Company or any of its Subsidiaries that, singly or inthe aggregate, have resulted in, or may reasonably be expected to result in,the incurrence by the Company or any of its Subsidiaries of an expense,liability, fine or penalty in an amount which might reasonably be expected tomaterially adversely affect the operations or financial condition of theCompany and its Subsidiaries taken as a whole.

 

#### (d)           Except as set forth in Item 5.14(“Environmental Matters”) of the Disclosure Schedule, the Company and itsSubsidiaries have been issued and are in

####  

53

----

 

#### compliance with allpermits, certificates, approvals, licenses and other authorizations relating toenvironmental matters and necessary for their businesses except where failureto so comply is not reasonably likely to have a material adverse effect on theoperations or financial condition of the Company and its Subsidiaries taken asa whole.

 

#### (e)           Except as set forth in Item 5.14(“Environmental Matters”) of the Disclosure Schedule, no property now orpreviously owned or leased by the Company or any of its Subsidiaries is listedon the National Priorities List pursuant to CERCLA, on the CERCLIS, or on anysimilar state list of sites requiring investigation or clean-up.

 

#### (f)            Except as set forth in Item. 5.14(“Environmental Matters”) of the Disclosure Schedule, there are no undergroundstorage tanks, active or abandoned, including petroleum storage tanks, on orunder any property now or previously owned or leased by the Company or any ofits Subsidiaries that, singly or in the aggregate, have resulted in, or mayreasonably be expected to result in, the incurrence by the Company or any ofits Subsidiaries of an expense, liability, fine or penalty in an amount whichmight reasonably be expected to materially adversely affect the operations orfinancial condition of the Company and its Subsidiaries taken as a whole.

 

#### (g)           Except as set forth in Item 5.14(“Environmental Matters”) of the Disclosure Schedule, neither the Company norany of its Subsidiaries has directly transported or directly arranged for thetransportation of any Hazardous Material to any location which is listed on theNational Priorities List pursuant to CERCLA, on the CERCLIS, or on any similarstate list or which is the subject of federal, state or local enforcementactions or other investigations which has resulted in or may reasonably beexpected to result in claims against the Company or such Subsidiary for anyremedial work, damage to natural resources or personal injury, including claimsunder CERCLA, in an amount which might reasonably be expected to materiallyadversely affect the operations or financial condition of the Company and itsSubsidiaries taken as a whole.

 

#### (h)           Except as set forth in Item 5.14(“Environmental Matters”) of the Disclosure Schedule, there are nopolychlorinated biphenyls or friable asbestos present at any property now orpreviously owned or leased by the Company or any Subsidiary of the Companythat, singly or in the aggregate, have resulted in, or may reasonably beexpected to result in, the incurrence by the Company or any of its Subsidiariesof an expense, liability, fine or penalty in an amount which might reasonablybe expected to materially adversely affect the operations or financialcondition of the Company and its Subsidiaries taken as a whole.

 

5.15         **RegulationsU and X**.  TheCompany is not engaged principally, or as one of its important activities, inthe business of extending credit for the purpose of, purchasing or carryingmargin stock, and no proceeds of any Loans will be used for a purpose whichviolates, or would be inconsistent with, F.R.S. Board Regulation U or X.As of the date of the initial Borrowing and after giving effect to the intendedapplication of the proceeds of each Borrowing thereafter, the current value ofthe margin stock owned by the Company at such time does not exceed 25% of thevalue of the Company’s assets which may not be pledged or made subject to anyLien

 

54

----

 

pursuantto this Agreement.  Terms for whichmeanings are provided in F.R.S. Board RegulationUor X or any regulations substituted therefor, as from time to time in effect,are used in this Section with such meanings.

 

5.16         **Indebtedness**.  AllIndebtedness of the Company and its Subsidiaries in existence on the ClosingDate (other than trade payables incurred in the ordinary course of business) isset forth in Item 5.16 (“Indebtedness”) of the Disclosure Schedule.

 

5.17         **Accuracyof Information**.  Allfactual information heretofore or contemporaneously furnished by or on behalfof the Company in writing to the Administrative Agent or any Lender for purposes of or inconnection with this Agreement or any transaction contemplated hereby takentogether does not, and all other such factual information hereafter furnishedby or on behalf of the Company to the Administrative Agent or any Lender takentogether will not, on the date as of which such information is dated orcertified, contain any untrue statement of a material fact or omit a materialfact necessary to make the factual information contained therein not misleadingin light of the circumstances in which it was provided.

 

# **ARTICLE VI**COVENANTS

 

6.1           **AffirmativeCovenants**.  TheCompany agrees with the Administrative Agent and each Lender that, until allCommitments have terminated and all Obligations have been paid and performed infull, the Company will perform the obligations set forth in this Section 6.1.

 

6.1.1        **FinancialInformation, Reports, Notices, etc****.** The Company will furnish, or will cause to be furnished, to each Lenderand the Administrative Agent copies of the following financial statements,reports, notices and information:

 

#### (a)           as soon as available and in any eventwithin 60 days after the end of each of the first three Fiscal Quarters of eachFiscal Year of the Company, consolidated balance sheets of the Company and itsSubsidiaries as of the end of such Fiscal Quarter and consolidated statementsof earnings and cash flow of the Company and its Subsidiaries for such FiscalQuarter and for the period commencing at the end of the previous Fiscal Yearand ending with the end of such Fiscal Quarter, certified by the chieffinancial officer or treasurer (or, if none, the chief financial AuthorizedCorporate Officer) of the Company;

 

#### (b)           as soon as available and in any eventwithin 90 days after the end of each Fiscal Year of the Company, a copy of theannual audit report for such Fiscal Year for the Company and its Subsidiaries,including therein consolidated balance sheets of the Company and itsSubsidiaries as of the end of such Fiscal Year and consolidated statements ofearnings and cash flow of the Company and its Subsidiaries for such FiscalYear, in each case certified (without any Impermissible Qualification) in amanner acceptable to the Administrative Agent

####  

55

----

 

#### and the Required Lendersby independent public accountants of recognized national standing or otherindependent public accountants acceptable to the Administrative Agent and theRequired Lenders;

 

#### (c)           as soon as available and in any eventwithin 60 days after the end of each Fiscal Quarter (except the last FiscalQuarter of each Fiscal Year) and within 90 days after the end of each FiscalYear, a Compliance Certificate, executed by the chief financial officer ortreasurer (or, if none, the chief financial Authorized Corporate Officer) ofthe Company, showing (in reasonable detail and with appropriate calculations andcomputations in all respects satisfactory to the Administrative Agent)compliance with the financial covenants set forth in Sections 6.2.2and stating that no Default has occurred and is continuing or, if there is anysuch Default, a statement setting forth details of such Default and the actionwhich the Company has taken and proposes to take with respect thereto;

 

#### (d)           together with the informationreferred to in clause (b) above, a report from an AuthorizedCorporate Officer (i) setting forth any changes in the identity of theCompany’s Subsidiaries, joint ventures or partnerships identified in Item6.9 of the Disclosure Schedule and, in the case of new Subsidiaries, jointventures or partnerships, describing the nature and percentage ownershipinterest therein of the Company and its Subsidiaries, (ii) describing anychange in the nature and extent of the ownership interest in any of theCompany’s Subsidiaries, joint ventures or partnerships and (iii) to theextent not previously identified, indicating each Subsidiary of the Companyhaving a Consolidated Total Assets equal to or greater than 50% of theCompany’s Consolidated Total Assets;

 

#### (e)           together with the certificatereferred to in clause (c) above, (x) the occurrence of anymaterially adverse development of which the Company has become aware withrespect to any litigation, action, proceeding, or labor controversy describedin Section 5.7, (y) the commencement of any material laborcontroversy, litigation, action, proceeding of which the Company has becomeaware, of the type described in Section 5.7, or (z) theoccurrence of a Default, notice thereof and, with respect to a Default, thesteps being taken by the Company or the Subsidiary, as the case may be,affected with respect thereto, from an Authorized Corporate Officer;

 

#### (f)            promptly after the sending or filingthereof, copies of all reports which the Company sends to its equitysecurityholders, and all reports and registration statements (other than S-8registration statements) which the Company or any of its Subsidiaries fileswith the Securities and Exchange Commission or any national securitiesexchange;

 

#### (g)           promptly after becoming aware of theinstitution of any steps by the Company, the PBGC or any ERISA Affiliate toterminate any Pension Plan, or the failure to make a required contribution toany Pension Plan if such failure is sufficient to give rise to a Lien undersection 302(f) of ERISA, or the taking of

####  

56

----

 

#### any action with respectto a Pension Plan which could result in the requirement that the Companyfurnish a bond or other security to the PBGC or such Pension Plan, or theoccurrence of any event with respect to any Pension Plan which could result inthe incurrence by the Company of any material liability, fine or penalty, orany material increase in the contingent liability of the Company with respectto any post-retirement Welfare Plan benefit, notice thereof and copies of alldocumentation relating thereto;

 

#### (h)           within five days of any purchase ofany “margin stock” as defined in Regulation U of the F.R.S. Board, a writtenreport in the form set forth as Exhibit J hereto of the amount and typeof any margin stock so purchased;

 

#### (i)            as soon as available and in anyevent within five days after the effective date thereof, a written report ofany written amendment of or waiver with respect to the Senior Note Agreements,together with a copy of the relevant document(s) evidencing such amendment orwaiver; and

 

#### (j)            such other information respectingthe condition or operations, financial or otherwise, of the Company or any ofits Subsidiaries, or the Company’s or any other Borrower’s compliance with thisAgreement, as any Lender through the Administrative Agent may from time to timereasonably request.

 

6.1.2        **Compliancewith Laws, etc****.** The Company will, and will cause each of its Subsidiaries to, comply inall material respects with all applicable laws, rules, regulations and orders,such compliance to include (without limitation):

 

#### (a)           except as otherwise permitted by Section 6.2.5,the maintenance and preservation of its and each Subsidiary’s respectiveexistence and all rights, privileges, licenses, patents, patent rights,copyrights, trademarks, trade names, franchises and other authority necessaryfor the conduct of their respective businesses in the ordinary course asconducted from time to time; and

 

#### (b)           the payment, before the same becomedelinquent, of all taxes, assessments, governmental charges or levies imposedupon it or upon its property, franchises or assets except to the extent(i) being diligently contested in good faith by appropriate proceedingsand for which adequate reserves in accordance with GAAP shall have been setaside on its books or (ii) failure to so pay would neither (A) have amaterial adverse effect on the operations or financial condition of the Companyand its Subsidiaries taken as a whole nor (B) otherwise result in theoccurrence of a Default.

 

6.1.3        **Insuran****ce**.  TheCompany will, and will cause each of its Subsidiaries to, maintain or cause tobe maintained insurance with respect to its properties and business (includingbusiness interruption insurance) against such casualties and contingencies andof such types and in such amounts as is customary in the case of similarbusinesses.

 

57

----

 

Nothing contained in this Section 6.1.3shall preclude the Company and its Subsidiariesfrom maintainingself-insurance and co-insurance to the extent that such self-insurance and co-insurancewould not have a material adverse effect on the operations or financialcondition of the Company and its Subsidiaries taken as a whole.

 

6.1.4        **EnvironmentalCovenant**.  TheCompany will, and will cause each of its Subsidiaries to,

 

#### (a)           use and operate all of its facilitiesand properties in material compliance with all Environmental Laws, keep allnecessary permits, approvals, certificates, licenses and other authorizationsrelating to environmental matters in effect and remain in material compliancetherewith, and handle all Hazardous Materials in material compliance with allapplicable Environmental Laws; and

 

#### (b)           immediately notify the AdministrativeAgent and provide copies upon receipt of all written claims, complaints,notices or inquiries relating to the condition of its facilities and propertiesor compliance with Environmental Laws if such condition may reasonably beexpected to result in the incurrence by the Company or any of its Subsidiariesof an expense, liability, fine or penalty in an amount which might reasonablybe expected to materially adversely affect the operations or financialcondition of the Company and its Subsidiaries taken as a whole.

 

6.1.5        **Guarantors**.  The Company willcause any Subsidiary that as of the end of any Fiscal Quarter is a MaterialSubsidiary that has not previously delivered the documents required by thisSection 6.1.5 to execute and deliver or cause to be delivered to theAdministrative Agent within 30 days of the end of such Fiscal Quarter aGuaranty in the form of Exhibit H duly executed on behalf of suchSubsidiary and accompanied by (i) resolutions of the board of directors orboard of managers of such Subsidiary authorizing the execution, delivery andperformance of the Guaranty by the Subsidiary, certified by the Secretary orAssistant Secretary of such Subsidiary, together with certified copies of theOrganic Documents of such Subsidiary and a certificate of good standing orcertificate of existence from the jurisdiction of such Subsidiary’s incorporationor organization, and (ii) an opinion of such Subsidiary’s legal counsel, ineach case in form and substance acceptable to the Administrative Agent.

 

6.2           **NegativeCovenants**.  TheCompany agrees with the Administrative Agent and each Lender that, until allCommitments have terminated and all Obligations have been paid and performed infull, the Company will perform the obligations set forth in this Section 6.2.

 

6.2.1        **Liens**.  TheCompany will not, and will not permit any of its Subsidiaries to, create, incur,assume or suffer to exist any Lien upon any of its property, revenues or assets(other than capital stock of the Company held as treasury stock), whether nowowned or hereafter acquired, except, without duplication:

 

58

----

 

#### (a)           Liens granted to the AdministrativeAgent or any Lender under this Agreement or any other Loan Document;

 

#### (b)           Liens outstanding on the Closing Dateand listed on Item 6.2.1 (“Existing Liens”) to the DisclosureSchedule or disclosed in the financial statements referred to in Section 5.5;

 

#### (c)           Liens securing the Indebtedness of aSubsidiary of the Company to the Company or to another such Subsidiary;

 

#### (d)           Liens granted or incurred after theClosing Date to secure the payment of the purchase price or construction costsincurred in connection with the acquisition or construction by the Company orany of its Subsidiaries of fixed assets useful and intended to be used incarrying on the business of the Company or one of its Subsidiaries, includingLiens existing on such fixed assets at the time of acquisition or constructionthereof or at the time of acquisition by the Company or one of its Subsidiariesof any business entity then owning such fixed assets, whether or not suchexisting Liens were given to secure the payment of the purchase price orconstruction costs of the fixed assets to which they attach, so long as theywere not incurred, extended or renewed in contemplation of such acquisition orconstruction; provided, that (i) the Lien shall attach solely tothe fixed assets acquired, constructed or purchased, (ii) at the time ofthe acquisition, construction or purchase of such fixed assets, the aggregateamount remaining unpaid on all Indebtedness secured by Liens on such fixed assets,whether or not assumed by the Company or one of its Subsidiaries, shall notexceed an amount equal to the lesser of (x) the total purchase price orconstruction costs, as applicable, thereof or (y) the fair market valuethereof at the time of acquisition, construction or purchase (as determined ingood faith by the Board of Directors of the Company), and(iii) immediately before and after the granting or incurring of any suchLien no Default exists which is continuing;

 

#### (e)           Liens for taxes, assessments or othergovernmental charges or levies not at the time delinquent or thereafter payablewithout penalty or being diligently contested in good faith by appropriateproceedings and for which adequate reserves in accordance with GAAP shall havebeen set aside on its books;

 

#### (f)            Liens of carriers, warehousemen,mechanics, materialmen and landlords incurred in the ordinary course ofbusiness for sums not overdue for a period of more than 30 days or beingdiligently contested in good faith by appropriate proceedings and for whichadequate reserves in accordance with GAAP shall have been set aside on itsbooks;

 

#### (g)           Liens incurred in the ordinary courseof business in connection with workmen’s compensation, unemployment insuranceor other forms of governmental insurance or benefits, or to secure performanceof tenders, statutory

####  

59

----

 

#### obligations, leases andcontracts (other than for borrowed money) entered into in the ordinary courseof business or to secure obligations on surety or appeal bonds;

 

#### (h)           Liens other than Liens excepted by clauses(a) through (g) above securing an aggregate amount of Indebtednessnot exceeding 10% of the Company’s Consolidated Total Capitalization; and

 

#### (i)            any renewal or extension of any Lienpermitted by the foregoing clauses (b), (d) or (h) of thisSection with extension, refunding or refinancing of the Indebtedness securedthereby made without increase in the then outstanding principal amount thereofand as long as immediately before and after any such extension, refunding orrefinancing of Indebtedness no Default exists which is continuing.

 

6.2.2        **FinancialCondition**.  TheCompany will not permit:

 

#### (a)           Its Consolidated Net Worth to be atany time less than the (x) sum of (i) $680,000,000, plus(ii) 50% of its Consolidated Net Income for each Fiscal Quarter commencingwith the Fiscal Quarter ending December 31, 2002 (calculated without deductionfor any net losses), plus (iii) 50% of the proceeds of any EquityIssuance.

 

#### (b)           Its Consolidated Total Debt to EBITDARatio as of the end of any Fiscal Quarter to be greater than 2.25 to 1.0.

 

#### (c)           Its Consolidated Fixed ChargeCoverage Ratio to be less than (i) 1.25 to 1.0 through and including the FiscalQuarter ending March 31, 2003, (ii) 1.75 to 1.0 commencing with the FiscalQuarter ending June 30, 2003 through and including the Fiscal Quarter endingSeptember 30, 2003, and (iii) 2.50 to 1.0 as of the end of each Fiscal Quarterthereafter.

 

6.2.3        **Investments**.  TheCompany will not, and will not permit any of its Subsidiaries to, make, incur,assume or suffer to exist any Investment in any other Person, except:

 

#### (a)           Investments existing on the ClosingDate and identified in Item 6.2.3(a) (“Ongoing Investments”) of theDisclosure Schedule;

 

#### (b)           Cash Equivalent Investments;

 

#### (c)           in the ordinary course of business,Investments by the Company in any of its Subsidiaries, or by any suchSubsidiary in any of its Subsidiaries, or by any such Subsidiary in any otherSubsidiary, by way of contributions to capital or loans or advances; and

 

60

----

 

#### (d)           other Investments in an aggregateamount at any one time not to exceed fifteen percent (15%) of the Company’sConsolidated Net Worth as reflected in the Company’s most recently issuedconsolidated balance sheet;

 

provided,however, that

 

#### (e)           any Investment which when madecomplies with the requirements of the definition of the term “Cash EquivalentInvestment” may continue to be held notwithstanding that such Investment ifmade thereafter would not comply with such requirements; and

 

#### (f)            no Investment otherwise permitted byclause (c) or (d) shall be permitted to be made if,immediately before or after giving effect thereto, any Default shall haveoccurred and be continuing.

 

6.2.4        **Consolidation,Merger, etc**.  TheCompany will not, and will not permit any of its Subsidiaries to, liquidate ordissolve, consolidate with, or merge into or with, any other corporation, orpurchase or otherwise acquire all or substantially all of the assets of anyPerson (or of any division thereof) other than (a) any such transactionamong or between Subsidiaries of the Company as long as the surviving Person(in the case of a liquidation, merger, dissolution or consolidation) or theacquiring Person (in the case of an acquisition) is a wholly-owned Subsidiaryof the Company (and if as a result thereof any such Subsidiary which will ceaseto exist is a Designated Subsidiary, the obligations of such Subsidiary shallbe assumed by a Subsidiary which is a Designated Subsidiary) or (b) anysuch transaction involving the Company if the Company is the survivingcorporation, and provided that both before and after giving effect to any suchtransaction (whether involving the Company or any of its Subsidiaries), noDefault has occurred and is continuing and the Company continues to meet all ofits obligations under this Agreement and the other Loan Documents.  Notwithstanding the foregoing, the Companywill not and will not permit any of its Subsidiaries to consummate any Acquisition unless (i) no Default orEvent of Default shall have occurred and be continuing or would occur or existupon consummation of the Acquisition, (ii) such Acquisition is of abusiness operation engaged in the same or a substantially similar line ofbusiness as that engaged in by the Company or any of its Subsidiaries on thedate of the Acquisition, (iii) the prior effective written consent orapproval to such Acquisition by the board of directors or equivalent governingbody of the acquiree is obtained, (iv) not less than 30 days prior to theeffective date of any Acquisition, the Company delivers to the AdministrativeAgent a certificate of the chief financial Authorized Corporate Officer of theCompany certifying that after giving effect to such Acquisition the Company’sConsolidated Total Debt to EBITDA Ratio as of the end of the Fiscal Quarter inwhich the Acquisition is effectuated will be at least 0.25 less than thatrequired by Section 6.2.2(b), and (v) with respect to any Acquisitionin which the aggregate consideration to be paid (including the assumption ofliabilities) by the Company or any of its Subsidiaries equals or exceeds$20,000,000, the Company delivers to the Administrative Agent prior writtennotice of such Acquisition in the form of Exhibit K hereto at least 30days prior to the effective date of such Acquisition.

 

61

----

 

6.2.5        **AssetDispositions, etc**. Except as otherwise permitted by this Section, the Company will not, andwill not permit any of its Subsidiaries to, sell, transfer, lease, contributeor otherwise convey, or grant options, warrants or other rights with respectto, all or any substantial part of its assets (including accounts receivableand capital stock ofSubsidiaries)to any Person, except for the sale of goods and services in the ordinary courseof business.  Notwithstanding theforegoing:

 

#### (a)           the Company or any of itsSubsidiaries may sell, for a cash consideration equal to not less than the fairmarket value thereof (as determined in good faith by the Board of Directors ofthe Company) assets which constitute a “substantial part” (as defined below inthis Section) of the assets of the Company and its Subsidiaries if, withinninety (90) days after the date of any such sale:

 

(i)            the Person sellingsuch assets applies that portion (the “**Excess Portion**”) of the net proceedsreceived upon such sale which exceeds fifteen percent (15%) of the Company’sConsolidated Net Assets (determined as of the last day of the calendar monthimmediately preceding the month in which such sale occurs), to the purchase (orshall have entered into a firm and binding agreement to purchase, within onehundred eighty (180) days after the date of such sale), for a cost not exceedingthe fair market value thereof (as determined in good faith by the Board ofDirectors of the Company), of other assets which will be used or useful in theordinary course of the business of the Person selling such assets, or

 

(ii)           the Company, bywritten notice to each holder of outstanding Consolidated Funded Debt of theCompany not less than thirty (30) days prior to the date fixed by the Companyfor the prepayment or purchase referred to below (which notice shall state thatthe same is given pursuant to the provisions of this Section 6.2.5and that any such holder that elects to accept such offer must do so by noticegiven to the Company, in writing or by telex, not less than ten (10) days priorto such date of prepayment or purchase), shall have offered, pursuant to a prorata offer made concurrently to all holders of then outstanding ConsolidatedFunded Debt, to apply an amount equal to that portion of the Excess Portion notapplied as provided in clause (i) above, to the prepayment orpurchase, on the date specified in such notice (which date shall be within suchninety (90) day period) of Consolidated Funded Debt (at a prepayment orpurchase price not exceeding the principal amount thereof and accrued interestthereon to the date of such prepayment or purchase, and without premium); provided,however, that, if and to the extent that any holder of ConsolidatedFunded Debt declines such offer in whole or in part, that portion of the ExcessPortion offered to such holder and not applied to the prepayment or purchase ofConsolidated Funded Debt held by it shall be offered by the Company (within ten(10) days following the expiration of such ninety (90) day period) to beapplied, on a pro-rata

 

62

----

 

basis, to theprepayment or purchase on the date specified in such offer (which date shall bethirty (30) days following the expiration of such ninety (90) day period), onthe same terms as provided above, of Consolidated Funded Debt held by allholders of Consolidated Funded Debt which elected to accept the initialprepayment or purchase offer (any such holder electing to accept such offermust notify the Company of such election by notice given to the Company, inwriting or by telex, at least ten days prior to the date fixed by the Companyfor said prepayment or purchase);

 

provided,however, that the aggregate book value of assets sold by the Company andits Subsidiaries in any Fiscal Year pursuant to the provisions of this clause (a)shall not exceed thirty-five percent (35%) of the Company’s Consolidated NetAssets, determined as of the last day of the immediately preceding Fiscal Year;and

 

#### (b)           so long as no Event of Default orDefault exists, the Company or any Subsidiary may sell or factor accountsreceivable owned by it, without recourse or liability (except (i) usualand customary contingent liabilities incurred by an endorser without recourseor in connection with customary warranties usually made in connection withsales “without recourse” of accounts receivable and (ii) repurchase orindemnity obligations with respect thereto not exceeding ten percent (10%) ofthe face amount of such accounts receivable) and for an amount not less thanthe fair value of such receivables;

 

As used in this Section 6.2.5a sale, lease or other disposition of assets shall be deemed to be a “**substantialpart**” of the assets of the Company and its Subsidiaries only if thebook value of such assets, when added to the book value of all other assetssold, leased or otherwise disposed of by the Company and its Subsidiaries(other than the sale or other disposition of property which is worn-out,obsolete or unserviceable) during the same Fiscal Year, exceeds fifteen percent(15%) of the Company’s Consolidated Net Assets, determined as of the end of theimmediately preceding Fiscal Year.

 

6.2.6        **Transactionswith Affiliates**.  TheCompany will not, and will not permit any of its Subsidiaries to, enter into orbe a party to any transaction, arrangement or contract with any of its RelatedParties (excluding any transactions, arrangements or contracts entered into bythe Company or one of its Subsidiaries with any of its Related Parties in goodfaith, and which the Company has in good faith determined to be in the longterm best interests of the Company and its Subsidiaries taken as a whole),including, without limitation, the purchase from, sale to or exchange ofproperty with, or the rendering of any service by or for, any such RelatedParty, unless such arrangement or contract is fair and equitable to the Companyor such Subsidiary and is a transaction, arrangement or contract of the kindwhich would be entered into by a prudent Person in the position of the Companyor such Subsidiary with a Person which is not one of its Related Parties.

 

63

----

 

6.2.7        **NegativePledges, Restrictive Agreements, etc**.  TheCompany will not, and will not permit any of its Subsidiaries to, enter intoany agreement (excluding this Agreement and any other Loan Document) prohibiting

 

#### (a)           the creation or assumption of anyLien upon its properties, revenues or assets, whether now owned or hereafteracquired, or the ability of the Company or any other Obligor to amend orotherwise modify this Agreement or any other Loan Document; or

 

#### (b)           the ability of any Subsidiary to makeany payments, directly or indirectly, to the Company by way of dividends,advances, repayments of loans or advances, reimbursements of management andother intercompany charges, expenses and accruals or other returns oninvestments, or any other agreement or arrangement which restricts the abilityof any such Subsidiary to make any payment, directly or indirectly, to theCompany.

 

6.2.8        **BusinessActivities**.  TheCompany will not, and will not permit any Subsidiary to, engage in any businessif, as a result, the general nature of the businesses then to be engaged in bythe Company and its Subsidiaries taken as a whole, would be substantiallychanged from the businesses in which they are currently engaged ,and otheractivities related or complementary thereto.

 

# **ARTICLE VII**EVENTS OF DEFAULT

 

7.1           **Listingof Events of Default**. Each of the following events or occurrences described in this Section 7.1shall constitute an “**Event of Default**”.

 

7.1.1        **Non-Paymentof Obligations**.  AnyBorrower shall default in the payment or prepayment when due of any principalon any Loan, or any Borrower shall default (and such default shall continueunremedied for a period of five days) in the payment when due of any fee, anyinterest or of any other Obligation.

 

7.1.2        **Breach of Warranty**.  Anyrepresentation or warranty of the Company, any Designated Subsidiary or anyother Obligor made or deemed to be made hereunder or in any other Loan Documentexecuted by it or any other writing or certificate furnished by or on behalf ofthe Company, such Designated Subsidiary or such other Obligor to theAdministrative Agent or any Lender for the purposes of or in connection withthis Agreement or any such other Loan Document (including any certificatesdelivered pursuant to Article IV) is or shall be incorrect whenmade or deemed made in any material respect.

 

7.1.3        **Non-Performance of Certain Covenants andObligations**.  TheCompany shall default in the due performance and observance of any of its obligationsunder Section 6.2.

 

64

----

 

7.1.4        **Non-Performanceof Other Covenants and Obligations**.  TheCompany, any Designated Subsidiary or any other Obligor shall default in thedue performance and observance of any other agreement contained herein or inany other Loan Document executed by it, and such default shall continueunremedied for a periodof30 days after the earlier of (i) the day on which the chief executiveofficer, chief operating officer, chief financial officer, Treasurer orSecretary of the Company first obtains actual knowledge of such default, or(ii) notice thereof shall have been given to the Company by theAdministrative Agent or any Lender.

 

7.1.5        **Defaulton Other Indebtedness**. (a) A default shall occur in the payment when due (subject to anyapplicable grace period), whether by acceleration or otherwise, of (i) anyIndebtedness under the Senior Note Agreements or (ii) any otherIndebtedness (other than Indebtedness described in Section 7.1.1) of,or guaranteed by, the Company or any of its Subsidiaries having a principalamount, individually or in the Aggregate, in excess of $5,000,000; or(b) a default shall occur in the performance or observance of anyobligation or condition with respect to (i) any Indebtedness under theSenior Note Agreements or (ii) any otherIndebtedness of, or guaranteed by, the Company or any of its Subsidiarieshaving a principal amount, individually or in the aggregate, in excess of$5,000,000, if the effect of such default is to accelerate the maturity of anysuch Indebtedness or such default shall continue unremedied for any applicableperiod of time sufficient to permit the holder or holders of such Indebtedness,or any trustee or Administrative Agent for such holders, tocause such Indebtedness to become due and payable prior to its expressedmaturity.

 

7.1.6        **Judgments**.  Anyjudgments or orders for the payment of money aggregating in excess of$7,000,000 shall be rendered against the Company or any of its Subsidiaries oragainst any property or assets of either and either

 

#### (a)           enforcement proceedings shall havebeen commenced by any creditor upon such judgments or orders; or

 

#### (b)           there shall be any period of 60consecutive 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.

 

7.1.7        **PensionPlans**.  Anyof the following events shall occur with respect to any Pension Plan:(a) the institution of any steps by the Company, any ERISA Affiliate orany other Person to terminate a Pension Plan if, as a result of suchtermination, the Company or any such ERISA Affiliate could be required to makea contribution to such Pension Plan, or could reasonably expect to incur aliability or obligation to such Pension Plan, in excess of $3,000,000; or(b) a contribution failure occurs with respect to any Pension Plansufficient to give rise to a Lien under Section 302(f) of ERISA.

 

7.1.8        **Controlof the Company**.  AnyChange in Control of the Company shall occur.

 

65

----

 

7.1.9        **Bankruptcy,Insolvency, etc**.  TheCompany or any of its Subsidiaries shall

 

#### (a)           become insolvent or generally fail topay, or admit in writing its inability or unwillingness to pay, debts as theybecome due;

 

#### (b)           apply for, consent to, or acquiescein, the appointment of a trustee, receiver, sequestrator or other custodian forthe Company or any of its Subsidiaries or any property of any thereof, or makea general assignment for the benefit of creditors;

 

#### (c)           in the absence of such application,consent or acquiescence, permit or suffer to exist the appointment of atrustee, receiver, sequestrator or other custodian for the Company or any ofits Subsidiaries or for a substantial part of the property of any thereof, andsuch trustee, receiver, sequestrator or other custodian shall not be dischargedwithin 60 days, provided that the Company and each Subsidiary herebyexpressly authorizes the Administrative Agent and each Lender to appear in anycourt conducting any relevant proceeding during such 60-day period to preserve,protect and defend their rights under the Loan Documents;

 

#### (d)           permit or suffer to exist thecommencement of any bankruptcy, reorganization, debt arrangement or other caseor proceeding under any bankruptcy or insolvency law, or any dissolution,winding up or liquidation proceeding, in respect of the Company or any of itsSubsidiaries, and, if any such case or proceeding is not commenced by theCompany or such Subsidiary, such case or proceeding shall be consented to oracquiesced in by the Company or such Subsidiary or shall result in the entry ofan order for relief or shall remain for 60 days undismissed, provided that theCompany and each Subsidiary hereby expressly authorizes the AdministrativeAgent and each Lender to appear in any court conducting any such case orproceeding during such 60-day period to preserve, protect and defend theirrights under the Loan Documents; or

 

#### (e)           take any action authorizing, or infurtherance of, any of the foregoing.

 

7.1.10      **LoanDocuments**.  AnyLoan Document shall, at any time, cease to be in full force and effect (unlessreleased by the Administrative Agent, at the direction of the Required Lendersor as otherwise permitted under this Agreement) or shall be declared null andvoid, or the validity or enforceability thereof of any terms or provisionstherein shall be contested by any Obligor.

 

7.2           **Action ifBankruptcy**.  Ifany Event of Default described in clauses (a) through (e) of Section 7.1.9shall occur with respect to the Company or any Subsidiary, the Commitments (ifnot theretofore terminated) shall automatically terminate and be reduced tozero and the outstanding principal amount of all outstanding Loans and allother Obligations shall automatically be and become immediately due andpayable, without notice or demand.

 

66

----

 

7.3           **Action ifOther Event of Default**.  Ifany Event of Default (other than any Event of Default described in clauses(a) through (e) of Section 7.1.9 with respect to theCompany or any Subsidiary) shall occur for any reason, whether voluntary orinvoluntary, and be continuing, the Administrative Agent, upon the direction ofthe Required Lenders, shall by notice to the Company declare all or any portionof the outstanding principal amount of the Loans and otherObligations to be due and payable and/or the Commitments(if not theretofore terminated) to be terminated and reduced to zero, whereuponthe full unpaid amount of such Loans and other Obligations which shall be sodeclared due and payable shall be and become immediately due and payable,without further notice, demand or presentment, and/or, as the case may be, theCommitments shall terminate and be reduced to zero.

 

# **ARTICLE VIII**ADMINISTRATIVE AGENT

 

8.1           **Appointment and Authorization of Administrative Agent**.

 

#### (a)           Each Lender hereby irrevocably(subject to Section 8.9) appoints, designates and authorizes theAdministrative Agent to take such action on its behalf under the provisions ofthis Agreement and each other Loan Document and to exercise such powers andperform such duties as are expressly delegated to it by the terms of thisAgreement or any other Loan Document, together with such powers as arereasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere hereinor in any other Loan Document, the Administrative Agent shall not have anyduties or responsibilities, except those expressly set forth herein, nor shallthe Administrative Agent have or be deemed to have any fiduciary relationshipwith any Lender or participant, and no implied covenants, functions,responsibilities, duties, obligations or liabilities shall be read into thisAgreement or any other Loan Document or otherwise exist against theAdministrative Agent.  Without limitingthe generality of the foregoing sentence, the use of the term “agent” hereinand in the other Loan Documents with reference to the Administrative Agent isnot intended to connote any fiduciary or other implied (or express) obligationsarising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market custom,and is intended to create or reflect only an administrative relationshipbetween independent contracting parties.

 

#### (b)           The L/C Issuer shall act on behalf ofthe Lenders with respect to any Letters of Credit issued by it and thedocuments associated therewith until such time (and except for so long) as theAdministrative Agent may agree at the request of the Required Lenders to actfor the L/C Issuer with respect thereto; provided, however, thatthe L/C Issuer shall have all of the benefits and immunities (i) providedto the Administrative Agent in this Article VIII with respect to anyacts taken or omissions suffered by the L/C Issuer in connection with Lettersof Credit issued by it or proposed to be issued by it and the application andagreements for letters of credit pertaining to the Letters of Credit as fullyas if the term “Administrative Agent” as used in this Article VIIIincluded the L/C

####  

67

----

 

#### Issuer with respect tosuch acts or omissions, and (ii) as additionally provided herein withrespect to the L/C Issuer.

 

8.2           **Delegation of Duties**.  The Administrative Agent may execute any of its duties under thisAgreement or any other Loan Document by or through agents, employees orattorneys-in-fact and shall be entitled to advice of counsel and otherconsultants or experts concerning all matters pertaining to such duties.  The Administrative Agent shall not beresponsible for thenegligence or misconduct of any agent or attorney-in-fact that it selects inthe absence of gross negligence or willful misconduct.

 

8.3           **Liability of Administrative Agent**.  No Agent-Related Person shall (a) be liable for any action takenor omitted to be taken by any of them under or in connection with thisAgreement or any other Loan Document or the transactions contemplated hereby(except for its own gross negligence or willful misconduct inconnection with its duties expressly set forth herein), or (b) be responsiblein any manner to any Lender or participant for any recital, statement,representation or warranty made by any Loan Party or any officer thereof,contained herein or in any other Loan Document, or in any certificate, report,statement or other document referred to or provided for in, or received by theAdministrative Agent under or in connection with, this Agreement or any otherLoan Document, or the validity, effectiveness, genuineness, enforceability orsufficiency of this Agreement or any other Loan Document, or for any failure ofany Loan Party or any other party to any Loan Document to perform itsobligations hereunder or thereunder.  NoAgent-Related Person shall be under any obligation to any Lender or participantto ascertain or to inquire as to the observance or performance of any of theagreements containedin, or conditions of, this Agreement or anyother Loan Document, or to inspect the properties, books or records of any LoanParty or any Affiliate thereof.

 

8.4           **Reliance by Administrative Agent**.

 

#### (a)           The Administrative Agent shall beentitled to rely, and shall be fully protected in relying, upon any writing,communication, signature, resolution, representation, notice, consent,certificate, affidavit, letter, telegram, facsimile, telex or telephonemessage, statement or other document or conversation believed by it to begenuine and correct and to have been signed, sent or made by the proper Personor Persons, and upon advice and statements of legal counsel (including counselto any Loan Party), independent accountants and other experts selected by theAdministrative Agent.  TheAdministrative Agent shall be fully justified in failing or refusing to takeany action under any Loan Document unless it shall first receive such advice orconcurrence of the Required Lenders as it deems appropriate and, if it sorequests, it shall first be indemnified to its satisfaction by the Lendersagainst any and all liability and expense which may be incurred by it by reasonof taking or continuing to take any such action.  The Administrative Agent shall in all cases be fully protected inacting, or in refraining from acting, under this Agreement or any other LoanDocument in accordance with a request or consent of the Required Lenders or allthe Lenders, if required hereunder, and such request and any action taken orfailure to act pursuant thereto shall be binding upon all the Lenders andparticipants.  Where this Agreementexpressly permits or prohibits an action unless the Required Lenders otherwisedetermine, the Administrative Agent shall,

####  

68

----

 

#### and in all otherinstances, the Administrative Agent may, but shall not be required to, initiateany solicitation for the consent or a vote of the Lenders.

 

#### (b)           For purposes of determiningcompliance with the conditions specified in Section 4.1, eachLender that has signed this Agreement shall be deemed to have consented to,approved or accepted or to be satisfied with, each document or other mattereither sent by the Administrative Agent to such Lender for consent, approval,acceptance or satisfaction, or required thereunder to be consented to orapproved by or acceptable or satisfactory to a Lender.

 

8.5           **Notice of Default**.  The Administrative Agent shall not be deemed to have knowledge ornotice of the occurrence of any Default or Event of Default, except withrespect to defaults in the payment of principal, interest and fees required tobe paid to the Administrative Agent for the account of the Lenders, unlessthe Administrative Agent shall have received written notice from a Lender orthe Company referring to this Agreement, describing such Default or Event ofDefault and stating that such notice is a “notice of default.”  The Administrative Agent will notify theLenders of its receipt of any such notice. The Administrative Agent shall take such action with respect to suchDefault or Event of Default as may be directed by the Required Lenders inaccordance with Article VII; provided, however, thatunless and until the Administrative Agent has received any such direction, theAdministrative Agent may (but shall not be obligated to) take such action, orrefrain from taking such action, with respect to such Default or Event ofDefault as it shall deem advisable or in the best interest of the Lenders.

 

8.6           **Credit Decision; Disclosure of Information byAdministrative Agent**.  Each Lender acknowledges that no Agent-Related Person has madeany representation or warranty to it, and that no act by the AdministrativeAgent hereinafter taken, including any consent to and acceptance of anyassignment or review of the affairs of any Loan Party or any Affiliate thereof,shall be deemed to constitute any representation or warranty by anyAgent-Related Person to any Lender as to any matter, including whetherAgent-Related Persons have disclosed material information in theirpossession.  Each Lender represents tothe Administrative Agent that it has, independently and without reliance uponany Agent-Related Person and based on such documents and information as it hasdeemed appropriate, made its own appraisal of and investigation into thebusiness, prospects, operations, property, financial and other condition and creditworthinessof the Loan Parties and their respective Subsidiaries, and all applicable bankor other regulatory Laws relating to the transactions contemplated hereby, andmade its own decision to enter into this Agreement and to extend credit to theBorrowers hereunder.  Each Lender alsorepresents that it will, independently and without reliance upon anyAgent-Related Person and based on such documents and information as it shalldeem appropriate at the time, continue to make its own credit analysis, appraisalsand decisions in taking or not taking action under this Agreement and the otherLoan Documents, and to make such investigations as it deems necessary to informitself as to the business, prospects, operations, property, financial and othercondition and creditworthiness of the Borrowers and the other LoanParties.  Except for notices, reportsand other documents expressly required to be furnished to the Lenders by theAdministrative Agent herein, the Administrative Agent shall not have any dutyor responsibility to provide any Lender with any credit or other informationconcerning the business, prospects,

 

69

----

 

operations, property, financial and other condition orcreditworthiness of any of the Loan Parties or any of their respectiveAffiliates which may come into the possession of any Agent-Related Person.

 

8.7           **Indemnification of Administrative Agent**.  Whether or not the transactions contemplated hereby areconsummated, the Lenders shall indemnify upon demand each Agent-Related Person(to the extent not reimbursed by or on behalf of any Loan Party and withoutlimiting theobligation of any Loan Party to do so), pro rata, and hold harmless eachAgent-Related Person from and against any and all Indemnified Liabilitiesincurred by it; provided, however, that no Lender shall be liablefor the payment to any Agent-Related Person of any portion of such IndemnifiedLiabilities resulting from such Person’s gross negligence or willfulmisconduct; provided, however, that no action taken in accordancewith the directions of the Required Lenders shall be deemed to constitute grossnegligence or willful misconduct forpurposes of this Section.  Without limitation of the foregoing, each Lender shall reimbursethe Administrative Agent upon demand for its ratable share of any costs orout-of-pocket expenses (including Attorney Costs) incurred by theAdministrative Agent in connection with the preparation, execution, delivery,administration, modification, amendment or enforcement (whether throughnegotiations, legal proceedings or otherwise) of, or legal advice in respect ofrights or responsibilities under, this Agreement, any other Loan Document, orany document contemplated by or referred to herein, to the extent that theAdministrative Agent is not reimbursed for such expenses by or on behalf of theBorrowers.  The undertaking in thisSection shall survive termination of the Commitments, the payment of allObligations hereunder and the resignation or replacement of the AdministrativeAgent.

 

8.8           **Administrative Agent in its Individual Capacity**.  Bank of America and its Affiliates may make loans to, issueletters of credit for the account of, accept deposits from, acquire equityinterests in and generally engage in any kind of banking, trust, financialadvisory, underwriting or other business with each of the Loan Parties andtheir respective Affiliates as though Bank of America were not theAdministrative Agent or the L/C Issuer hereunder and without notice to orconsent of the Lenders.  The Lendersacknowledge that, pursuant to such activities, Bank of America or itsAffiliates may receive information regarding any Loan Party or its Affiliates(including information that may be subject to confidentiality obligations in favorof such Loan Party or such Affiliate) and acknowledge that the AdministrativeAgent shall be under no obligation to provide such information to them.  With respect to its Loans, Bank of Americashall have the same rights and powers under this Agreement as any other Lenderand may exercise such rights and powers as though it were not theAdministrative Agent or the L/C Issuer, and the terms “Lender” and “Lenders”include Bank of America in its individual capacity.

 

8.9           **Successor Administrative Agent**.  The Administrative Agent may resign as Administrative Agent upon30 days’ notice to the Lenders.  If theAdministrative Agent resigns under this Agreement, the Required Lenders shallappoint from among the Lenders a successor administrative agent for the Lenderswhich successor administrative agent shall be consented to by the Company atall times other than during the existence of an Event of Default (which consentof the Company shall not be unreasonably withheld or delayed).  If no successor administrative agent isappointed prior to the effective date of the resignation of the AdministrativeAgent, the Administrative Agent may appoint, after consulting with the Lenders

 

70

----

 

and the Company, asuccessor administrative agent from among the Lenders.  Upon the acceptance of its appointment assuccessor administrative agent hereunder, such successor administrative agentshall succeed to all the rights, powers and duties of the retiringAdministrative Agent and the term “Administrative Agent” shall mean suchsuccessor administrative agent and the retiring Administrative Agent’sappointment, powers and duties as Administrative Agent shall beterminated.  After any retiring AdministrativeAgent’s resignation hereunder as Administrative Agent, the provisions of this Article VIIIand Sections 9.4 and 9.5shall inure to itsbenefit as to any actions taken or omitted to be taken by it while it wasAdministrative Agent under this Agreement. If no successor administrative agent has accepted appointment asAdministrative Agent by the date which is 30 days following a retiringAdministrative Agent’s notice of resignation, the retiring AdministrativeAgent’s resignation shall nevertheless thereupon become effective and the Lendersshall perform all of the duties of theAdministrative Agent hereunder until suchtime, if any, as the Required Lenders appoint a successor agent as provided forabove.

 

8.10         **Other Agents; Lead Managers**.  None of the Lenders identified on the facing page or signaturepages of this Agreement as a “syndication agent,” “documentation agent,”“co-agent” or “lead manager” shall have any right, power, obligation,liability, responsibility or duty under this Agreement other than thoseapplicable to all Lenders as such. Without limiting the foregoing, none of the Lenders so identified shallhave or be deemed to have any fiduciary relationship with any Lender.  Each Lender acknowledges that it has notrelied, and will not rely, on any of the Lenders so identified in deciding toenter into this Agreement or in taking or not taking action hereunder.

 

# **ARTICLE IX**MISCELLANEOUS

 

9.1           **Amendments, Etc**.  No amendment or waiver of any provision of this Agreement or anyother Loan Document, and no consent to any departure by the Company or anyother Loan Party therefrom, shall be effective unless in writing signed by theRequired Lenders and the Borrowers or the applicable Loan Party, as the casemay be, and acknowledged by the Administrative Agent, and each such waiver or consentshall be effective only in the specific instance and for the specific purposefor which given; provided, however, that no such amendment,waiver or consent shall, unless in writing and signed by the SupermajorityLenders and the Borrowers, and acknowledged by the Administrative Agent,release the Guarantor(s) from the Guaranty; provided, further,that no such amendment, waiver or consent shall, unless in writing and signedby each of the Lenders directly affected thereby and by the Borrowers, and acknowledgedby the Administrative Agent, do any of the following:

 

#### (a)           extend or increase the Commitment ofany Lender (or reinstate any Commitment terminated pursuant to Section 7.2or 7.3);

 

#### (b)           postpone any date fixed by thisAgreement or any other Loan Document for any payment of principal, interest,fees or other amounts due to the Lenders (or any of them) hereunder or underany other Loan Document;

 

71

----

 

#### (c)           reduce the principal of, or the rateof interest specified herein on, any Loan or L/C Borrowing, or (subject toclause (iv) of the proviso below) any fees or other amounts payable hereunderor under any other Loan Document, or change the manner of computation of anyfinancial covenant used in determining the Applicable Margin, the ApplicableCommitment Fee Percentage or the Applicable L/C Rate that would result in areduction of any interest rate on any Loan or a reduction in the amount of thecommitment fee payable pursuant to Section 2.9(a) or a reduction in theletter of credit fees payable pursuant to Section 2.3; provided, however,that only the consent of the Required Lenders shall be necessary to amend thedefinition of “Default Rate” or to waive any obligation of the Borrowers to payinterest at the Default Rate;

 

#### (d)           change the percentage of theAggregate Commitments or of the aggregate unpaid principal amount of the Loansand L/C Obligations which is required for the Lenders or any of them to takeany action hereunder; or

 

#### (e)           amend this Section, or Section2.13, or any provision herein providing for consent or other action by allthe Lenders;

 

and, providedfurther, that (i) no amendment, waiver or consent shall, unless inwriting and signed by the L/C Issuer in addition to the Required Lenders or allthe Lenders, as the case may be, affect the rights or duties of the L/C Issuerunder this Agreement or any Letter of Credit Application relating to any Letterof Credit issued or to be issued by it; (ii) no amendment, waiver orconsent shall, unless in writing and signed by the Swing Line Lender inaddition to the Required Lenders or all the Lenders, as the case may be, affectthe rights or duties of the Swing Line Lender under this Agreement;(iii) no amendment, waiver or consent shall, unless in writing and signedby the Administrative Agent in addition to the Required Lenders or all theLenders, as the case may be, affect the rights or duties of the AdministrativeAgent under this Agreement or any other Loan Document; and (iv) theAgent/Arranger Fee Letter may be amended, or rights or privileges thereunderwaived, in a writing executed only by the parties thereto.  Notwithstanding anything to the contraryherein, any Lender that has failed to fund any portion of the Committed Loans,participations in L/C Obligations or participations in Swing Line Loansrequired to be funded by it hereunder shall not have any right to approve ordisapprove any amendment, waiver or consent hereunder, except that the Pro RataShare of such Lender may not be increased without the consent of such Lender.

 

9.2           **Notices and Other Communications; Facsimile Copies**.

 

#### (a)           **General**.  Unless otherwise expressly provided herein, all notices and othercommunications provided for hereunder shall be in writing (including byfacsimile transmission) and mailed, faxed or delivered, to the address,facsimile number or (subject to subsection (c) below) electronic mail addressspecified for notices on Schedule 9.2; or, in the case of the Borrowers,the Administrative Agent, the L/C Issuer or the Swing Line Lender, to suchother address as shall be designated by such party in a notice to the otherparties, and in the case of any other party, to such other address as shall bedesignated by such party in a notice to the Borrowers, the AdministrativeAgent, the L/C Issuer and the

####  

72

----

 

#### Swing Line Lender.  All such notices and other communicationsshall be deemed to be given or made upon the earlier to occur of (i) actualreceipt by the intended recipient and (ii) (A) if delivered by hand or bycourier, when signed for by the intended recipient; (B) if delivered by mail,four Business Days after deposit in the mails, postage prepaid; (C) ifdelivered by facsimile, when sent and receipt has been confirmed by telephone;and (D) if delivered by electronic mail (which form of delivery is subject tothe provisions of subsection (c) below), when delivered; provided, however,that notices and other communications to the Administrative Agent, the L/CIssuer and the Swing Line Lender pursuant to Article II shall not beeffective until actually received by such Person.  Any notice or other communication permitted to be given, made orconfirmed by telephone hereunder shall be given, made or confirmed by means ofa telephone call to the intended recipient at the number specified on Schedule9.2, it being understood and agreed that a voicemail message shall in noevent be effective as a notice, communication or confirmation hereunder.

 

#### (b)           **Effectiveness of Facsimile Documents and Signatures**.  Loan Documents may be transmitted and/orsigned by facsimile.  The effectivenessof any such documents and signatures shall, subject to applicable Law, have thesame force and effect as manually-signed originals and shall be binding on allLoan Parties, the Administrative Agent and the Lenders.  The Administrative Agent may also requirethat any such documents and signatures be confirmed by a manually-signedoriginal thereof; provided, however, that the failure to requestor deliver the same shall not limit the effectiveness of any facsimile documentor signature.

 

#### (c)           **Reliance by Administrative Agent and Lenders**.  The Administrative Agent and the Lendersshall be entitled to rely and act upon any notices (including telephonicCommitted Loan Notices and Swing Line Loan Notices) purportedly given by or onbehalf of the Borrowers even if (i) such notices were not made in a mannerspecified herein, were incomplete or were not preceded or followed by any otherform of notice specified herein, or (ii) the terms thereof, as understood bythe recipient, varied from any confirmation thereof.  The Borrowers shall indemnify each Agent-Related Person and eachLender from all losses, costs, expenses and liabilities resulting from thereliance by such Person on each notice purportedly given by or on behalf of theBorrowers.  All telephonic notices toand other communications with the Administrative Agent may be recorded by theAdministrative Agent, and each of the parties hereto hereby consents to suchrecording.

 

9.3           **No Waiver; Cumulative Remedies**.  No failure by any Lender or theAdministrative Agent to exercise, and no delay by any such Person inexercising, any right, remedy, power or privilege hereunder shall operate as awaiver thereof; nor shall any single or partial exercise of any right, remedy,power or privilege hereunder preclude any other or further exercise thereof orthe exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privilegesherein or therein provided are cumulative and not exclusive of any rights,remedies, powers and privileges provided by law.

 

73

----

 

9.4           **AttorneyCosts, Expenses and Taxes**.  The Borrowers agree (a) to pay or reimbursethe Administrative Agent for all reasonable costs and expenses incurred inconnection with the development, preparation, negotiation and execution of thisAgreement and the other Loan Documents and any amendment, waiver, consent orother modification of the provisions hereof and thereof (whether or not thetransactions contemplated hereby or thereby are consummated), and theconsummation and administration of the transactions contemplated hereby andthereby, including all Attorney Costs, and (b) to pay or reimburse theAdministrative Agent and each Lender for all costs and expenses incurred inconnection with the enforcement, attempted enforcement, or preservation of anyrights or remedies under this Agreement or the other LoanDocuments (includingall such costs and expenses incurred during any “workout” or restructuring inrespect of the Obligations and during any legal proceeding, including anyproceeding under any Debtor Relief Law), including all Attorney Costs.  The foregoing costs and expenses shallinclude all reasonable search, filing, recording, title insurance and appraisalcharges and fees and taxes related thereto, and other out-of-pocket expensesincurred by the Administrative Agent and the cost of independent publicaccountants and other outside experts retained by the Administrative Agent orany Lender.  The agreements in thisSection shall survive the termination of the Commitments and repayment of allthe other Obligations.

 

9.5           **Indemnification by the Borrowers**.  Whether or not the transactions contemplatedhereby are consummated, the Borrowers agree to indemnify, save and hold harmlesseach Agent-Related Person, each Lender and their respective Affiliates,directors, officers, employees, counsel, agents and attorneys-in-fact(collectively the “**Indemnitees**”) from and against:  (a) any and all claims, demands, actions orcauses of action that are asserted against any Indemnitee by any Person (otherthan the Administrative Agent or any Lender) relating directly or indirectly toa claim, demand, action or cause of action that such Person asserts or mayassert against any Loan Party, any Affiliate of any Loan Party or any of theirrespective officers or directors; (b) any and all claims, demands, actions orcauses of action that may at any time (including at any time followingrepayment of the Obligations and the resignation or removal of theAdministrative Agent or the replacement of any Lender) be asserted or imposedagainst any Indemnitee, arising out of or relating to, the Loan Documents, anypredecessor loan documents, the Commitments, the use or contemplated use of theproceeds of any Credit Extension, or the relationship of any Loan Party, theAdministrative Agent and the Lenders underthis Agreement or any other Loan Document; (c) any administrative or investigativeproceeding by any Governmental Authority arising out of or related to a claim,demand, action or cause of action described in subsection (a) or (b) above; and(d) any and all liabilities (including liabilities under indemnities), losses,costs or expenses (including Attorney Costs) that any Indemnitee suffers orincurs as a result of the assertion of any foregoing claim, demand, action,cause of action or proceeding, or as a result of the preparation of any defensein connection with any foregoing claim, demand, action, cause of action orproceeding, in all cases, whether or not an Indemnitee is a party to suchclaim, demand, action, cause of action or proceeding (all the foregoing,collectively, the “**Indemnified Liabilities**”); providedthat no Indemnitee shall be entitled to indemnification for any claim caused byits own gross negligence or willful misconduct or for any loss asserted againstit by another Indemnitee.  Theagreements in this Section shall survive the termination of the Commitments andrepayment of all the other Obligations.

 

74

----

 

9.6           **Payments Set Aside**. To the extent that the Borrowers make a payment to the AdministrativeAgent or any Lender, or the Administrative Agent or any Lender exercises itsright of set-off, and such payment or the proceeds of such set-off or any partthereof is subsequently invalidated, declared to be fraudulent or preferential,set aside or required (including pursuant to any settlement entered into by theAdministrative Agent or such Lender in its discretion) to be repaid to atrustee, receiver or any other party, in connection with any proceeding underany Debtor Relief Law or otherwise, then (a) to the extent of such recovery,the obligation or part thereof originally intended to be satisfied shall berevived and continued in full force and effect as if such payment had not beenmade or such set-off had not occurred, and(b) each Lenderseverally agrees to pay to the Administrative Agent upon demand its applicableshare of any amount so recovered from or repaid by the Administrative Agent,plus interest thereon from the date of such demand to the date such payment ismade at a rate per annum equal to the Federal Funds Rate from time to time ineffect.

 

## 9.7           **Successors and Assigns**.

 

#### (a)           The provisions of this Agreementshall be binding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns permitted hereby, except that the Borrowersmay not assign or otherwise transfer any of their rights or obligationshereunder without the prior written consent of each Lender (and any attemptedassignment or transfer by the Borrowers without such consent shall be null andvoid).  Nothing in this Agreement,expressed or implied, shall be construed to confer upon any Person (other thanthe parties hereto, their respective successors and assigns permitted herebyand, to the extent expressly contemplated hereby, the Indemnitees) any legal orequitable right, remedy or claim under or by reason of this Agreement.

 

#### (b)           Any Lender may assign to one or moreEligible Assignees all or a portion of its rights and obligations under thisAgreement (including all or a portion of its Commitment and the Loans(including for purposes of this subsection (b), participations in L/CObligations and in Swing Line Loans) at the time owing to it); providedthat (i) except in the case of an assignment of the entire remaining amount ofthe assigning Lender’s Commitment and the Loans at the time owing to it or in thecase of an assignment to a Lender or an Affiliate of a Lender or an ApprovedFund with respect to a Lender, the aggregate amount of the Commitment (whichfor this purpose includes Loans outstanding thereunder) subject to each suchassignment, determined as of the date the Assignment and Acceptance withrespect to such assignment is delivered to the Administrative Agent, shall notbe less than $5,000,000 unless each of the Administrative Agent and, so long asno Event of Default has occurred and is continuing, the Company otherwiseconsents (each such consent not to be unreasonably withheld or delayed), (ii)each partial assignment shall be made as an assignment of a proportionate partof all the assigning Lender’s rights and obligations under this Agreement withrespect to the Loans or the Commitment assigned, except that this clause (ii)shall not apply to rights in respect of outstanding Swing Line Loans, and (iii)the parties to each assignment shall execute and deliver to the AdministrativeAgent an Assignment and Acceptance, together with a processing and recordationfee of $3,500.  Subject to acceptanceand recording thereof by the Administrative Agent pursuant to subsection (c) ofthis Section, from and

####  

75

----

 

#### after the effective datespecified in each Assignment and Acceptance, the Eligible Assignee thereundershall be a party hereto and, to the extent of the interest assigned by suchAssignment and Acceptance, have the rights and obligations of a Lender underthis Agreement, and the assigning Lender thereunder shall, to the extent of theinterest assigned by such Assignment and Acceptance, be released from itsobligations under this Agreement (and, in the case of an Assignment andAcceptance covering all of the assigning Lender’s rights and obligations underthis Agreement, such Lender shall cease to be a party hereto but shall continueto be entitled to the benefits of Sections 3.7, 9.4 and 9.5).  Upon request, the Borrowers (at theirexpense) shall execute and deliver new or replacement Notes to the assigningLender and the assignee Lender.  Anyassignment or transfer by a Lender of rights or obligations under thisAgreement that does not comply with this subsection shall be treated forpurposes of this Agreement as a sale by such Lender of a participation in suchrights and obligations in accordance with subsection (d) of this Section.

 

#### (c)           The Administrative Agent, actingsolely for this purpose as an agent of the Borrowers, shall maintain at theAdministrative Agent’s Office a copy of each Assignment and Acceptancedelivered to it and a register for the recordation of the names and addressesof the Lenders, and the Commitments of, and principal amount of the Loans andL/C Obligations owing to, each Lender pursuant to the terms hereof from time totime (the “**Register**”).  Theentries in the Register shall be conclusive, and the Borrowers, theAdministrative Agent and the Lenders may treat each Person whose name isrecorded in the Register pursuant to the terms hereof as a Lender hereunder forall purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available forinspection by the Company and any Lender, at any reasonable time and from timeto time upon reasonable prior notice.

 

#### (d)           Any Lender may, without the consentof, or notice to, the Borrowers or the Administrative Agent, sellparticipations to one or more banks or other entities (a “**Participant**”) in all or aportion of such Lender’s rights and/or obligations under this Agreement(including all or a portion of its Commitment and/or the Loans (including suchLender’s participations in L/C Obligations and/or Swing Line Loans) owing toit); provided that (i) such Lender’s obligations under thisAgreement shall remain unchanged, (ii) such Lender shall remain solelyresponsible to the other parties hereto for the performance of such obligationsand (iii) the Borrowers, the Administrative Agent and the other Lendersshall continue to deal solely and directly with such Lender in connection withsuch Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant towhich a Lender sells such a participation shall provide that such Lender shallretain the sole right to enforce this Agreement and to approve any amendment,modification or waiver of any  provisionof this Agreement; provided that such agreement or instrument mayprovide that such Lender will not, without the consent of the Participant,agree to any amendment, waiver or other modification that would (i) postponeany date upon which any payment of money is scheduled to be paid to suchParticipant or (ii) reduce the principal, interest, fees or other amountspayable to such Participant.  Subject tosubsection (e) of this Section, the Borrowers agree that each Participant shallbe entitled to the benefits of Sections 3.1, 3.4

####  

76

----

 

#### and 3.5**tothe same extent as if it were a Lender and had acquired its interest byassignment pursuant to subsection (b) of this Section.  To the extent permitted by law, eachParticipant also shall be entitled to the benefits of Section 9.9**asthough it were a Lender, provided such Participant agrees to be subjectto Section 2.13 as though it were a Lender.

 

#### (e)           A Participant shall not be entitledto receive any greater payment under Section 3.1 or 3.4**thanthe applicable Lender would have been entitled to receive with respect to theparticipation sold to such Participant, unless the sale of the participation tosuch Participant is made with the Company’s prior written consent.  A Participant that would be a Foreign Lenderif it were a Lender shall not be entitled to the benefits of Section 3.1unless the Company is notified of the participation sold to such Participant andsuch Participant agrees, for the benefit of the Borrowers, to comply with Section9.15 as though it were a Lender.

 

#### (f)            Any Lender may at any time pledge orassign a security interest in all or any portion of its rights under thisAgreement (including under its Notes, if any) to secure obligations of suchLender, including any pledge or assignment to secure obligations to a FederalReserve Bank; provided that no such pledge or assignment shall release aLender from any of its obligations hereunder or substitute any such pledgee orassignee for such Lender as a party hereto.

 

#### (g)           If the consent of the Company to anassignment or to an Eligible Assignee is required hereunder (including aconsent to an assignment which does not meet the minimum assignment thresholdspecified in clause (i) of the proviso to the first sentence of Section9.7(b)), the Company shall be deemed to have withheld its consent fiveBusiness Days after the date notice thereof has been delivered by the assigningLender (through the Administrative Agent) unless such consent is expresslygranted by the Company prior to such fifth Business Day.

 

#### (h)           As used herein, the following termshave the following meanings:

 

“**EligibleAssignee**” means (a) a Lender; (b) an Affiliate of a Lender; (c) an ApprovedFund; and (d) any other Person (other than a natural Person) approved by theAdministrative Agent, in the case of any assignment of a Committed Loan, theL/C Issuer, the Swing Line Lender and, unless (x) such Person is takingdelivery of an assignment in connection with physical settlement of a creditderivatives transaction or (y) an Event of Default has occurred and iscontinuing, the Company (each such approval not to be unreasonably withheld ordelayed).

 

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

 

77

----

 

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

 

#### (i)            Notwithstanding anything to thecontrary contained herein, if at any time Bank of America assigns all of itsCommitment and Loans pursuant to subsection (b) above, Bank of America may, (i)upon 30 days’ notice to the Company and the Lenders, resign as L/C Issuerand/or (ii) upon five Business Days’ notice to the Company, terminate the SwingLine.  In the event of any suchresignation as L/C Issuer or termination of the Swing Line, the Company shallbe entitled to appoint from among the Lenders a successor L/C Issuer or SwingLine Lender hereunder; provided, however, that no failure by theCompany to appoint any such successor shall affect the resignation of Bank ofAmerica as L/C Issuer or the termination of the Swing Line, as the case maybe.  Bank of America shall retain allthe rights and obligations of the L/C Issuer hereunder with respect to allLetters of Credit outstanding as of the effective date of its resignation asL/C Issuer and all L/C Obligations with respect thereto (including the right torequire the Lenders to make Base Rate Committed Loans or fund participations inUnreimbursed Amounts pursuant to Section 2.4(c)).  If Bank of America terminates the SwingLine, it shall retain all the rights of the Swing Line Lender provided forhereunder with respect to Swing Line Loans made by it and outstanding as of theeffective date of such termination, including the right to require the Lendersto make Base Rate Committed Loans or fund participations in outstanding SwingLine Loans pursuant to Section 2.4(c).

 

9.8           **Confidentiality**.  Each of the Administrative Agent and theLenders agrees to maintain the confidentiality of the Information (as definedbelow), except that Information may be disclosed (a) to its and itsAffiliates’ directors, officers, employees and agents, including accountants,legal counsel and other advisors (it being understood that the Persons to whomsuch disclosure is made will be informed of the confidential nature of suchInformation and instructed to keep such Information confidential); (b) tothe extent requested by any regulatory authority; (c) to the extent  required by applicable laws or regulationsor by any subpoena or similar legal process; (d) to any other party to thisAgreement; (e) in connection with the exercise of any remedies hereunder or anysuit, action or proceeding relating to this Agreement or the enforcement ofrights hereunder; (f) subject to an agreement containing provisionssubstantially the same as those of this Section, to (i) anyEligible Assignee of or Participant in, or any prospective Eligible Assignee ofor Participant in, any of its rights or obligations under this Agreement or(ii) any direct or indirect contractual counterparty or prospectivecounterparty (or such contractual counterparty’s or prospective counterparty’sprofessional advisor) to any credit derivative transaction relating toobligations of the Borrowers; (g) with the consent of the Company; (h) tothe extent such Information (i) becomes publicly available other than as aresult of a breach of this Section or (ii) becomes available to the AdministrativeAgent or any Lender on a nonconfidential basis from a source other than theBorrowers; or (i) to the National Association of Insurance Commissioners or anyother similar organization or any nationally recognized rating agency thatrequires access to information about a Lender’s or its Affiliates’ investmentportfolio in connection with ratings issued with respect to such Lender or itsAffiliates.  For the purposes of thisSection, “Information” means all information received from the Borrowersrelating to the Borrowers or its business, other than any such information thatis

 

78

----

 

available to theAdministrative Agent or any Lender on a nonconfidential basis prior todisclosure by the Borrowers; provided that, in the case of informationreceived from the Borrowers after the date hereof, such information is clearlyidentified in writing at the time of delivery as confidential.  Any Person required to maintain theconfidentiality of Information as provided in this Section shall be consideredto have complied with its obligation to do so if such Person has exercised thesame degree of care to maintain the confidentiality of such Information as suchPerson would accord to its own confidential information.

 

9.9           **Set-off**.  In addition to any rights and remedies of the Lenders provided bylaw, upon the occurrence and during the continuance of any Event of Default,each Lender isauthorized at any time and from time to time, without priornotice to the Company or any other Loan Party, any such notice being waived byeach Borrower (on its own behalf and on behalf of each Loan Party) to thefullest 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 by,and other indebtedness at any time owing by, such Lender to or for the creditor the account of the respective Loan Parties against any and all Obligationsowing to such Lender, now or hereafterexisting,irrespective of whether or not the Administrative Agent or such Lender shallhave made demand under this Agreement or any other Loan Document and althoughsuch Obligations may be contingent or unmatured.  Each Lender agrees promptly to notify the Company and theAdministrative Agent after any such set-off and application made by suchLender; provided,however, that the failure to givesuch notice shall not affect the validity of such set-off and application.

 

9.10         **Interest Rate Limitation**.  Notwithstanding anything to the contrarycontained in any Loan Document, the interest paid or agreed to be paid underthe Loan Documents shall not exceed the maximum rate of non-usurious interestpermitted by applicable Law (the “**Maximum Rate**”).  If the Administrative Agent or any Lender shall receive interestin an amount that exceeds the Maximum Rate, the excess interest shall beapplied to the principal of the Loans or, if it exceeds such unpaid principal,refunded to the Borrowers.  Indetermining whether the interest contracted for, charged, or received by theAdministrative Agent or a Lender exceeds the Maximum Rate, such Person may, tothe extent permitted by applicable Law, (a) characterize any payment that isnot principal as an expense, fee, or premium rather than interest, (b) excludevoluntary prepayments and the effects thereof, and (c) amortize, prorate,allocate, and spread in equal or unequal parts the total amount ofinterest throughout the contemplated term of the Obligations.

 

9.11         **Counterparts**.  This Agreement may be executed in one or more counterparts, eachof which shall be deemed an original, but all of which together shallconstitute one and the same instrument.

 

9.12         **Integration**.  This Agreement, together with the other Loan Documents, comprisesthe complete and integrated agreement of the parties on the subject matterhereof and thereof and supersedes all prior agreements, written or oral, onsuch subject matter.  In the event ofany conflict between the provisions of this Agreement and those of any otherLoan Document, the provisions of this Agreement shall control; providedthat the inclusion of supplemental rights or remedies in favor of theAdministrative Agent or the Lenders in any other Loan Document

 

79

----

 

shall not be deemed aconflict with this Agreement.  Each LoanDocument was drafted with the joint participation of the respective partiesthereto and shall be construed neither against nor in favor of any party, butrather in accordance with the fair meaning thereof.

 

9.13         **Survival of Representations and Warranties**.  All representations and warranties made hereunder and in anyother Loan Document or other document delivered pursuant hereto or thereto orin connection herewith or therewith shall survive the execution and deliveryhereof and thereof.  Suchrepresentations and warranties have been or will be relied upon by theAdministrative Agent and each Lender, regardless of any investigation made bythe Administrative Agent or any Lender or on their behalf and notwithstandingthat theAdministrative Agent or any Lender may have had notice orknowledge of any Default or Event of Default at the time of any CreditExtension, and shall continue in full force and effect as long as any Loan orany other Obligation shall remain unpaid or unsatisfied or any Letter of Creditshall remain outstanding.

 

9.14         **Severability**.  Any provision of this Agreement and the other Loan Documents towhich any Borrower is a party that is prohibited or unenforceable in anyjurisdiction shall, as to such jurisdiction, be ineffective to the extent ofsuch prohibition or unenforceability without invalidating the remainingprovisions thereof, and any such prohibition or unenforceability in anyjurisdiction shall not invalidate or render unenforceable such provision in anyother jurisdiction.

 

9.15         **ForeignLenders**. Each Lender that is a “foreign corporation, partnership or trust” withinthe meaning of the Code (a “**Foreign Lender**”) shall deliver to theAdministrative Agent, prior to receipt of any payment subject to withholdingunder the Code (or after accepting an assignment of an interest herein), twoduly signed completed copies of either IRS Form W-8BEN or any successor thereto(relating to such Person and entitling it to an exemption from, or reductionof, withholding tax on all payments to be made to such Person by the Borrowerspursuant to this Agreement) or IRS Form W-8ECI or any successor thereto(relating to all payments to be made to such Person by the Borrowers pursuantto this Agreement) or such other evidence satisfactory to the Company and theAdministrative Agent that such Person is entitled to an exemption from, orreduction of, U.S. withholding tax. Thereafter and from time to time, each such Person shall (a) promptlysubmit to the Administrative Agent such additional duly completed and signed copies of one of suchforms (or such successor forms as shall be adopted from time to time by therelevant United States taxing authorities) as may then be available under thencurrent United States laws and regulations to avoid, or such evidence as issatisfactory to the Company and the Administrative Agent of any availableexemption from or reduction of, United States withholding taxes in respect ofall payments to be made to such Person by the Borrowers pursuant to thisAgreement, (b) promptly notify the Agent of any change in circumstances whichwould modify or render invalid any claimed exemption or reduction, and (c) takesuch steps as shall not be materially disadvantageous to it, in the reasonablejudgment of such Lender, and as may be reasonably necessary (including there-designation of its Lending Office) to avoid any requirement of applicableLaws that the Borrowers make any deduction or withholding for taxes fromamounts payable to such Person.  If suchPerson fails to deliver the above forms or other documentation, then theAdministrative Agent may withhold from any interest payment to such Person anamount equivalent to the applicable withholding tax imposed by Sections 1441and

 

80

----

 

1442of the Code, without reduction.  If anyGovernmental Authority asserts that the Administrative Agent did not properlywithhold any tax or other amount from payments made in respect of such Person,such Person shall indemnify the Administrative Agent therefor, including allpenalties and interest, any taxes imposed by any jurisdiction on the amountspayable to the Agent under this Section, and costs and expenses (includingAttorney Costs) of the Administrative Agent. The obligation of the Lenders under this Section shall survive thepayment of all Obligations and the resignation or replacement of theAdministrative Agent.

 

## 9.16         **Removal and Replacement of Lenders**.

 

#### (a)           Under any circumstances set forthherein providing that the Company shall have the right to remove or replace aLender as a party to this Agreement, the Company may, upon notice to suchLender and the Administrative Agent, (i) remove such Lender by  terminating such Lender’s Commitment or (ii)replace such Lender by causing such Lender to assign its Commitment (withoutpayment of any assignment fee) pursuant to Section 9.7(b) to one ormore other Lenders or Eligible Assignees procured by the Company; provided,however, that if the Company elects to exercise such right with respectto any Lender pursuant to Section 3.6(b), it shall be obligated toremove or replace, as the case may be, all Lenders that have made similarrequests for compensation pursuant to Section 3.1 or 3.4.  The Company shall (x) pay in full allprincipal, interest, fees and other amounts owing to such Lender through thedate of termination or assignment (including any amounts payable pursuant to Section 3.5),(y) provide appropriate assurances and indemnities (which may include lettersof credit) to the L/C Issuer and the Swing Line Lender as each may reasonablyrequire with respect to any continuing obligation to purchase participationinterests in any L/C Obligations or any Swing Line Loans then outstanding, and(z) release such Lender from its obligations under the Loan Documents.  Any Lender being replaced shall execute anddeliver an Assignment and Acceptance with respect to such Lender’s Commitmentand outstanding Credit Extensions.  TheAdministrative Agentshalldistribute an amended Schedule 2.1, which shall be deemed incorporatedinto this Agreement, to reflect changes in the identities of the Lenders andadjustments of their respective Commitments and/or Pro Rata Shares resultingfrom any such removal or replacement.

 

#### (b)           In order to make all the Lenders’interests in any outstanding Credit Extensions ratable in accordance with anyrevised Pro Rata Shares after giving effect to the removal or replacement of aLender, the Borrowers shall pay or prepay, if necessary, on the effective datethereof, all outstanding Committed Loans of all Lenders, together with anyamounts due under Section 3.5. The Company may then request Committed Loans from the Lenders inaccordance with their revised Pro Rata Shares. The Borrowers may net any payments required hereunder against any fundsbeing provided by any Lender or Eligible Assignee replacing a terminatingLender.  The effect for purposes of thisAgreement shall be the same as if separate transfers of funds had been madewith respect thereto.

 

#### (c)           This section shall supersede anyprovision in Section 9.1 to the contrary.

 

81

----

 

9.17         **Governing Law**.

 

#### (a)           THIS AGREEMENT SHALL BE GOVERNED BY,AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS APPLICABLETO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE**;**PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALLRIGHTS ARISING UNDER FEDERAL LAW.

 

#### (b)           ANY LEGAL ACTION OR PROCEEDING WITHRESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THECOURTS OF THE STATE OF ILLINOIS SITTING IN CHICAGO OR OF THE UNITED STATES FORTHE NORTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THISAGREEMENT, THE BORROWERS, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS,FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OFTHOSE COURTS.  THE BORROWERS, THEADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION,INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF *FORUM NONCONVENIENS*, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OFANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENTOR OTHER DOCUMENT RELATED THERETO.  THEBORROWERS, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OFANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANSPERMITTED BY THE LAW OF SUCH STATE.

 

9.18         **Waiver of Right to Trial by Jury**. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIALBY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOANDOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGSOF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THETRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTERARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTYHEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OFACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TOTHIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITHANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THEWAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

9.19         **ENTIRE AGREEMENT****.**** THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINALAGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEENTHE PARTIES.**

 

82

----

 

IN WITNESSWHEREOF, the parties hereto have caused this Agreement to be executed by theirrespective officers thereunto duly authorized as of the day and year firstabove written.

 
|   | **ANDREW CORPORATION**                    |
|--------|-------------------------------------------|
|   |                                      |
|   |                                      |
|   | By:                                       | /s/ M. Jeffrey  Gittelman |
|   | Name:  M. Jeffrey Gittelman          |
|   | Title:  Vice President and Treasurer |

 

83

----

 
|   | **BANK OF AMERICA, N.A.**, as |
|--------|-------------------------------|
|   | Administrative Agent          |
|   |                          |
|   |                          |
|   | By:                           | /s/  David A. Johanson |
|   | Name:  David A. Johanson |
|   | Title:  Vice President   |

 

84

----

 
|   | LENDERS                                     |
|--------|---------------------------------------------|
|   |                                        |
|   | **BANK OF AMERICA, N.A.**, as a Lender, L/C |
|   | Issuer and Swing Line  Lender               |
|   |                                        |
|   |                                        |
|   | By:                                         | /s/  Craig W. McGuire |
|   | Name:  Craig W. McGuire                |
|   | Title:  Vice President                 |

 

85

----

 
|   | **LASALLE BANK NATIONAL**                    |
|--------|----------------------------------------------|
|   | **ASSOCIATION**, as a Lender and Syndication |
|   | Agent                                        |
|   |                                         |
|   |                                         |
|   | By:                                          | /s/  Nate Palmer |
|   | Name:  Nate Palmer                      |
|   | Title:  Loan Officer                    |

 

86

----

 
|   | **U.S. BANK NATIONAL ASSOCIATION**, as |
|--------|----------------------------------------|
|   | a Lender and  Documentation Agent      |
|   |                                   |
|   |                                   |
|   | By:                                    | /s/  R. Michael Newton |
|   | Name:  R. Michael Newton          |
|   | Title:  Vice President            |

 

87

----

 
|   | **HARRIS TRUST AND SAVINGS BANK**, as |
|--------|---------------------------------------|
|   | a Lender                              |
|   |                                  |
|   |                                  |
|   | By:                                   | /s/  Peter F. Stack |
|   | Name:  Peter F. Stack            |
|   | Title:  Vice President           |

 

88

----

 
|   | **NATIONAL CITY BANK**, as a Lender |
|--------|-------------------------------------|
|   |                                |
|   |                                |
|   |                                |
|   | By:                                 | /s/  Richard H. Michalik |
|   | Name:  Richard H. Michalik     |
|   | Title:  Senior Vice President  |

 

89

----

 
|   | **THE NORTHERN TRUST COMPANY**, as a |
|--------|--------------------------------------|
|   | Lender                               |
|   |                                 |
|   |                                 |
|   | By:                                  | /s/  Christopher L. McKean |
|   | Name:  Christopher L. McKean    |
|   | Title:  Second Vice President   |

 

90

----

 
|   | **FIFTH THIRD BANK, CHICAGO**, as a |
|--------|-------------------------------------|
|   | Lender                              |
|   |                                |
|   |                                |
|   | By:                                 | /s/  William P. Lavery |
|   | Name:  William P. Lavery       |
|   | Title:  Vice President         |

 

91

----

 
|   | **BANK OF TOKYO-MITSUBISHI, LTD.,** |
|--------|-------------------------------------|
|   | **CHICAGO BRANCH**, as a Lender     |
|   |                                |
|   |                                |
|   | By:                                 | /s/  Shinichiro Munechika |
|   | Name:  Shinichiro Munechika    |
|   | Title:  Deputy General Manager |

 

92

----

 
|   | **MORGAN STANLEY BANK**, as a Lender |
|--------|--------------------------------------|
|   |                                 |
|   |                                 |
|   | By:                                  | /s/  Jaap L. Tonckens |
|   | Name:  Jaap L. Tonckens         |
|   | Title:  Vice President          |

 

93

----