EX-10.2



 





Exhibit 10.2




 





Published CUSIP Number: XXXXXXXXX




364-DAY CREDIT AGREEMENT




Dated as of November 16, 2007

among




VULCAN MATERIALS COMPANY 1,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent,




and




The Other Lenders Party Hereto




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Syndication Agent




J.P. MORGAN SECURITIES INC.,

REGIONS BANK

and

UBS LOAN FINANCE LLC,

as

Co-Documentation Agents




BANC OF AMERICA SECURITIES LLC

and

WACHOVIA CAPITAL MARKETS, LLC,

as

Joint Lead Arrangers and Joint Bookrunners




 







 




			
	1	 	Successor by merger to and formerly known as VIRGINIA
HOLDCO, INC., a New Jersey corporation, with such name change occurring on or
about the date hereof.





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 	 	 
	1.01
	 	Defined Terms	 	 	1	 
	1.02
	 	Other Interpretive Provisions	 	 	17	 
	1.03
	 	Accounting Terms	 	 	18	 
	1.04
	 	Rounding	 	 	18	 
	1.05
	 	Times of Day	 	 	18	 
	 
	 	 	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND BORROWINGS	 	 	18	 
	 
	 	 	 	 	 	 
	2.01
	 	Committed Loans	 	 	18	 
	2.02
	 	Borrowings, Conversions and Continuations of Committed Loans	 	 	19	 
	2.03
	 	Bid Loans	 	 	20	 
	2.04
	 	[Reserved.]	 	 	23	 
	2.05
	 	Prepayments	 	 	23	 
	2.06
	 	Termination or Reduction of Commitments	 	 	24	 
	2.07
	 	Repayment of Loans	 	 	24	 
	2.08
	 	Interest	 	 	24	 
	2.09
	 	Fees	 	 	25	 
	2.10
	 	Computation of Interest and Fees	 	 	25	 
	2.11
	 	Evidence of Debt	 	 	26	 
	2.12
	 	Payments Generally; Administrative Agent’s Clawback	 	 	26	 
	2.13
	 	Sharing of Payments by Lenders	 	 	28	 
	2.14
	 	Increase in Commitments	 	 	28	 
	2.15
	 	Extension of Maturity Date	 	 	29	 
	 
	 	 	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	31	 
	 
	 	 	 	 	 	 
	3.01
	 	Taxes	 	 	31	 
	3.02
	 	Illegality	 	 	33	 
	3.03
	 	Inability to Determine Rates	 	 	33	 
	3.04
	 	Increased Costs	 	 	34	 
	3.05
	 	Compensation for Losses	 	 	35	 
	3.06
	 	Mitigation Obligations; Replacement of Lenders	 	 	36	 
	3.07
	 	Survival	 	 	36	 
	 
	 	 	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO BORROWINGS	 	 	36	 
	 
	 	 	 	 	 	 
	4.01
	 	Conditions of Initial Borrowing	 	 	36	 
	4.02
	 	Conditions to all Borrowings	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES	 	 	38	 
	 
	 	 	 	 	 	 
	5.01
	 	Existence, Qualification and Power	 	 	38	 






i









 





	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	5.02
	 	Authorization; No Contravention; Governmental Authorization	 	 	39	 
	5.03
	 	Binding Effect	 	 	39	 
	5.04
	 	Financial Statements; No Material Adverse Effect	 	 	39	 
	5.05
	 	Litigation	 	 	40	 
	5.06
	 	Taxes	 	 	40	 
	5.07
	 	ERISA Compliance	 	 	40	 
	5.08
	 	Margin Regulations; Investment Company Act	 	 	40	 
	5.09
	 	Disclosure	 	 	40	 
	5.10
	 	Compliance with Laws	 	 	41	 
	5.11
	 	Taxpayer Identification Number	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS	 	 	41	 
	 
	 	 	 	 	 	 
	6.01
	 	Financial Statements	 	 	41	 
	6.02
	 	Certificates; Other Information	 	 	42	 
	6.03
	 	Notices	 	 	43	 
	6.04
	 	Payment of Obligations	 	 	43	 
	6.05
	 	Preservation of Existence	 	 	43	 
	6.06
	 	Maintenance of Properties	 	 	44	 
	6.07
	 	Self-Insurance	 	 	44	 
	6.08
	 	Compliance with Laws	 	 	44	 
	6.09
	 	Books and Records; Inspection Rights	 	 	44	 
	6.10
	 	Use of Proceeds	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS	 	 	45	 
	 
	 	 	 	 	 	 
	7.01
	 	Liens	 	 	45	 
	7.02
	 	Fundamental Changes	 	 	46	 
	7.03
	 	Sales of Assets	 	 	46	 
	7.04
	 	Dissolution	 	 	46	 
	7.05
	 	Use of Proceeds	 	 	46	 
	7.06
	 	Ratio of Consolidated Debt to Total Capitalization	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES	 	 	47	 
	 
	 	 	 	 	 	 
	8.01
	 	Events of Default	 	 	47	 
	8.02
	 	Remedies Upon Event of Default	 	 	49	 
	8.03
	 	Application of Funds	 	 	50	 
	 
	 	 	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT	 	 	50	 
	 
	 	 	 	 	 	 
	9.01
	 	Appointment and Authority	 	 	50	 
	9.02
	 	Rights as a Lender	 	 	50	 
	9.03
	 	Exculpatory Provisions	 	 	51	 
	9.04
	 	Reliance by Administrative Agent	 	 	51	 
	9.05
	 	Delegation of Duties	 	 	52	 
	9.06
	 	Resignation of Administrative Agent	 	 	52	 






ii









 





	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	9.07
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	53	 
	9.08
	 	No Other Duties, Etc.	 	 	53	 
	9.09
	 	Administrative Agent May File Proofs of Claim	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE X. MISCELLANEOUS	 	 	54	 
	 
	 	 	 	 	 	 
	10.01
	 	Amendments, Etc.	 	 	54	 
	10.02
	 	Notices; Effectiveness; Electronic Communication	 	 	55	 
	10.03
	 	No Waiver; Cumulative Remedies	 	 	56	 
	10.04
	 	Expenses; Indemnity; Damage Waiver	 	 	57	 
	10.05
	 	Payments Set Aside	 	 	58	 
	10.06
	 	Successors and Assigns	 	 	59	 
	10.07
	 	Treatment of Certain Information; Confidentiality	 	 	62	 
	10.08
	 	Right of Setoff	 	 	63	 
	10.09
	 	Interest Rate Limitation	 	 	63	 
	10.10
	 	Counterparts; Integration; Effectiveness	 	 	63	 
	10.11
	 	Survival of Representations and Warranties	 	 	63	 
	10.12
	 	Severability	 	 	64	 
	10.13
	 	Replacement of Lenders	 	 	64	 
	10.14
	 	Governing Law; Jurisdiction; Etc.	 	 	64	 
	10.15
	 	Waiver of Jury Trial	 	 	65	 
	10.16
	 	No Advisory or Fiduciary Responsibility	 	 	66	 
	10.17
	 	USA PATRIOT Act Notice	 	 	66	 
	 
	 	 	 	 	 	 
	SIGNATURES	 	 	S-1	 






iii









 





	 	 	 	 	 	 	 
	SCHEDULES	 	 	 	 
	 
	 	 	 	 	 	 
	2.01  
	 	Commitments and Applicable Percentages	 	 	 	 
	10.02
	 	Administrative Agent’s Office; Certain Addresses for Notices	 	 	 	 
	 
	 	 	 	 	 	 
	EXHIBITS
 	 	 	 	 
	 
	 	Form of	 	 	 	 
	 
	 	 	 	 	 	 
	A   
	 	Committed Loan Notice	 	 	 	 
	B-1
	 	Bid Request	 	 	 	 
	B-2
	 	Competitive Bid	 	 	 	 
	C   
	 	Note	 	 	 	 
	D   
	 	Compliance Certificate	 	 	 	 
	E   
	 	Assignment and Assumption	 	 	 	 
	F-1
	 	Borrower Opinion	 	 	 	 
	F-2
	 	Special Counsel to the Borrower Opinion	 	 	 	 






iv









 





364-DAY CREDIT AGREEMENT




     THIS 364-DAY CREDIT AGREEMENT (this “Agreement”) is entered into as of November 16,
2007, among VIRGINIA HOLDCO, INC., a New Jersey corporation (the “Borrower”), each lender
from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and BANK OF AMERICA, N.A., as Administrative Agent.



     The Borrower has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “Absolute Rate” means a fixed rate of interest expressed in multiples of 1/100th of
one basis point.



     “Absolute Rate Loan” means a Bid Loan that bears interest at a rate determined with
reference to an Absolute Rate.



     “Acquisition” means the acquisition by the Borrower of all of the issued and
outstanding capital stock of the Target and its Subsidiaries as described in the Acquisition
Agreement.



     “Acquisition Agreement” means the Agreement and Plan of Merger dated as of February
19, 2007, by and among the Borrower, the Target, VMC, Virginia Merger Sub, Inc., a New Jersey
corporation, and Fresno Merger Sub, Inc., a Florida corporation, as amended by Amendment No. 1
dated as of April 9, 2007 and as further amended from time to time.



     “Acquisition Documents” means, collectively, the Acquisition Agreement and all other
material agreements executed in connection with the Acquisition, as amended from time to time.



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



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



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



1









 





     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



     “Aggregate Commitments” means the Commitments of all the Lenders.



     “Agreement” has the meaning set forth in the introductory paragraph hereto.



     “Applicable Percentage” means, with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time. If the commitment of each Lender to make Loans has been terminated
pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable
Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender
most recently in effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or
in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable.



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



	 	 	 	 	 	 	 

	 	 	 	Applicable Rate	 
	 
	Pricing	 	Debt Ratings	 	Facility	 	Eurodollar Rate +
	Level	 	S&P/Moody’s	 	Fee	 	LIBOR Daily Floating Rate +
	 
	1
	 	A/A2 or higher	 	0.045%	 	0.155%
	2
	 	A-/A3	 	0.050%	 	0.200%
	3
	 	BBB+/Baa1	 	0.065%	 	0.235%
	4
	 	BBB/Baa2 or lower	 	0.085%	 	0.315%







     “Debt Rating” means, as of any date of determination, the rating as determined
by either S&P or Moody’s (collectively, the “Debt Ratings”) of the Borrower’s
non-credit-enhanced, senior unsecured long-term debt; provided that (a) if the
respective Debt Ratings issued by the foregoing rating agencies differ by one level, then
the Pricing Level for the higher of such Debt Ratings shall apply (with the Debt Rating for
Pricing Level 1 being the highest and the Debt Rating for Pricing Level 4 being the lowest);
(b) if there is a split in Debt Ratings of more than one level, then the Pricing Level that
is one level lower than the Pricing Level of the higher Debt Rating shall apply; and (c) if
the Borrower does not have any Debt Rating, Pricing Level 4 shall apply.


Initially, the Applicable Rate shall be determined based upon the publicly announced Debt Rating in
effect on the Closing Date. Thereafter, each change in the Applicable Rate resulting from a
publicly announced change in the Debt Rating shall be effective during the period commencing on the
date of the public announcement or publication thereof by S&P or Moody’s, respectively, or, in the
absence of such announcement or publication, on the effective date of such changed Debt Rating, and
ending on the date immediately preceding the effective date of the next such change.




2









 








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



     “Arrangers” means each of Banc of America Securities LLC and Wachovia Capital Markets,
LLC, each in its capacity as a joint lead arranger and joint bookrunner.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



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



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans pursuant to Section 8.02.



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



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



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



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



     “Bid Borrowing” means a borrowing consisting of simultaneous Bid Loans of the same
Type from each of the Lenders whose offer to make one or more Bid Loans as part of such borrowing
has been accepted under the auction bidding procedures described in Section 2.03.



     “Bid Loan” has the meaning specified in Section 2.03(a).



     “Bid Loan Lender” means, in respect of any Bid Loan, the Lender making such Bid Loan
to the Borrower.



     “Bid Loan Sublimit” means an amount equal to $200,000,000. The Bid Loan Sublimit is
part of, and not in addition to, the Aggregate Commitments.



3









 





     “Bid Request” means a written request for one or more Bid Loans substantially in the
form of Exhibit B-1.



     “Borrower” means Virginia Holdco, Inc., a New Jersey corporation, to be re-named
“Vulcan Materials Company” on or about the Closing Date.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a Committed Borrowing or a Bid Borrowing, as the context may
require.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the State of
North Carolina and, if such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar
market.



     “Capital Stock” means any nonredeemable capital stock of the Borrower or any
Consolidated Subsidiary (to the extent issued to a Person other than the Borrower), whether common
or preferred.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Commitment” means, as to each Lender, its obligation to make Committed Loans to the
Borrower pursuant to Section 2.01, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
The aggregate amount of the Commitments on the Closing Date is $500,000,000.



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



     “Committed Loan” has the meaning specified in Section 2.01.



     “Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar



4









 







Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially
in the form of Exhibit A.



     “Competitive Bid” means a written offer by a Lender to make one or more Bid Loans,
substantially in the form of Exhibit B-2, duly completed and signed by a Lender.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
D.



     “Consolidated Debt” means at any date all obligations for indebtedness for borrowed
money shown on a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of
such date (or would be if a balance sheet were prepared on such date); provided that
indebtedness for borrowed money of any Partially Owned Subsidiary which is a Consolidated
Subsidiary shall be equal to the Guaranteed Amount, if any, of such indebtedness.



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



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



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



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



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means an interest rate equal to (a) the Base Rate plus (b) 2%
per annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Committed Loans required to be funded by it hereunder within one Business Day of the date required
to be funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay
over to the Administrative Agent or any other Lender any other amount required to be paid by it
hereunder within one Business Day of the date when due, unless the subject of a good



5









 







faith dispute or unless such failure has been cured, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency proceeding.



     “Dollar” and “$” mean lawful money of the United States.



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)).



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public systems.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) any of the events set forth in Section 4043(c) of ERISA, other
than events for which the 30 day notice period has been waived, with respect to a Pension Plan; (b)
a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA or contributions to
a Pension Plan in the ordinary course, upon the Borrower or any ERISA Affiliate.



     “Eurodollar Bid Margin” means the margin above or below the Eurodollar Rate to be
added to or subtracted from the Eurodollar Rate, which margin shall be expressed in multiples of
1/100th of one basis point.



     “Eurodollar Margin Bid Loan” means a Bid Loan that bears interest at a rate based upon
the Eurodollar Rate.




6











 





     “Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 	 	 	 	 	 
	 

	 	Eurodollar Rate
	 	=
	 	Eurodollar Base Rate	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	1.00 – Eurodollar Reserve Percentage	 	 







     Where,




     “Eurodollar Base Rate” means, for such Interest Period, the rate per annum
equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not available at such time for any
reason, then the “Eurodollar Base Rate” for such Interest Period shall be the rate per
annum determined by the Administrative Agent to be the rate at which deposits in Dollars
for delivery on the first day of such Interest Period in immediately available funds in the
approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank
of America and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank Eurodollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.



     “Eurodollar Rate Committed Loan” means a Committed Loan that bears interest at a rate
based on the Eurodollar Rate.



     “Eurodollar Rate Loan” means a Eurodollar Rate Committed Loan or a Eurodollar Margin
Bid Loan.



     “Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB
for determining the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall
be adjusted automatically as of the effective date of any change in the Eurodollar Reserve
Percentage. The LIBOR Daily Floating Rate for each outstanding LIBOR Floating Rate Loan shall be
adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in which its



7









 







principal
office is located or, in the case of any Lender, in which its applicable Lending Office is located,
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrower under Section 10.13), any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with Section
3.01(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office (or assignment), to receive additional amounts
from the Borrower with respect to such withholding tax pursuant to Section 3.01(a).



     “Existing Credit Facilities” means the Existing Vulcan Credit Facilities and the
Existing Target Credit Facility.



     “Existing Target Credit Facility” means that certain Credit Agreement dated as of May
27, 2004 among the Target, material domestic subsidiaries from time to time parties thereto,
lenders parties thereto, and Wachovia Bank, National Association, as Administrative Agent, as
amended.



     “Existing Vulcan Credit Facilities” means the credit facility provided under the
Existing Vulcan 364-Day Credit Agreement and the Existing Vulcan Five-Year Credit Agreement,
respectively.



     “Existing Vulcan Five-Year Credit Agreement” means that certain Credit Agreement dated
as of June 28, 2006 by and among VMC, the lenders party thereto from time to time, and Bank of
America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender, as amended by Amendment
No. 1 to Credit Agreement dated as of September 15, 2006 and Amendment No. 2 to Credit Agreement
dated as of February 27, 2007.



     “Existing Vulcan 364-Day Credit Agreement” means that certain Credit Agreement dated
as of September 15, 2006 among VMC, the lenders party thereto from time to time, and Bank of
America, N.A. as Administrative Agent, as amended by Amendment No. 1 to Credit Agreement dated as
of February 27, 2007.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



8









 





     “Fee Letter” means, collectively, (a) the letter agreement, dated May 29, 2007, among
the Borrower and the Arrangers and (b) the letter agreement, dated May 29, 2007, between the
Borrower and the Administrative Agent.



     “Five-Year Working Capital Credit Agreement” means that certain Five-Year Credit
Agreement, dated as of November 16, 2007, by and among the Borrower, Bank of America, N.A., as
administrative agent, and the lenders party thereto.



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



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



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



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



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



9









 





     “Guaranteed Amount” means, with respect to the Indebtedness of another Person, the
aggregate amount for which the Borrower is liable (whether by Guarantee or as a general partner or
otherwise, but excluding any amounts with respect to which the Borrower is expressly exculpated).



     “Indebtedness” of any Person means at any date, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay
the deferred purchase price of property or services, except trade accounts payable arising in the
ordinary course of business, (d) the capitalized amount of all obligations of such Person as lessee
under capital leases (excluding all Synthetic Lease Obligations) that are required to be accounted
for as capital leases on a balance sheet of such Person under GAAP, (e) all obligations of such
Person to reimburse any bank or other Person in respect of amounts payable under a banker’s
acceptance, (f) all obligations (contingent or otherwise) of such Person to reimburse any bank or
other Person in respect of amounts paid or to be paid under a drawn letter of credit or similar
instrument, (g) all Indebtedness of others secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person, and (h) all Indebtedness of others Guaranteed
by such Person.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; (b) as to any Base Rate Loan, the last Business Day of each March,
June, September and December and the Maturity Date, and (c) as to any LIBOR Floating Rate Loan, the
first Business Day of each month and the Maturity Date.



     “Interest Period” means (a) as to each Eurodollar Rate Loan, the period commencing on
the date such Eurodollar Rate Loan is disbursed or (in the case of any Eurodollar Rate Committed
Loan) converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Committed Loan Notice or Bid Request, as
the case may be; and (b) as to each Absolute Rate Loan, a period of not less than seven days and
not more than 360 days as selected by the Borrower in its Bid Request; provided that:




     (a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (b) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar



10









 







month at the
end of such Interest Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and




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



     “Interest Rate Change Date” means, with respect to the LIBOR Daily Floating Rate, the
first day of each month; provided, however, that if such date is not a Business Day, then
the “Interest Rate Change Date” shall be the next succeeding Business Day.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable 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.



     “Lender” has the meaning specified in the introductory paragraph hereto.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “LIBOR Daily Floating Rate” means a rate per annum determined by the Administrative
Agent pursuant to the following formula:



	 	 	 	 	 	 	 	 	 
	 

	 	LIBOR Daily Floating Rate
	 	=
	 	LIBOR Daily Floating Base Rate	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	1.00 – Eurodollar Reserve Percentage	 	 






     Where,




     “LIBOR Daily Floating Base Rate” means, for all Loans, on any day any such
Loan is outstanding, the fluctuating rate of interest (rounded upwards, as necessary, to
the nearest 1/100 of 1%) equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two (2) Business Days prior to the most recent
Interest Rate Change Date, for Dollar deposits (for delivery on such Interest Rate Change
Date) with a term of one month, as adjusted from time to time in the Administrative Agent’s
sole discretion for changes in deposit insurance requirements and other regulatory costs.
If such rate is not available at such time for any reason, then the “LIBOR Daily Floating
Base Rate” shall be the rate per annum determined by the Administrative Agent to be the
rate at which deposits in Dollars for delivery in same day funds in the approximate amount
of the Dollar denominated Loans outstanding with a term equivalent to one month would be
offered by Bank of America’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London time), on each day
any such Loan is outstanding.



11









 





     “LIBOR Floating Rate Loan” means a Loan that bears interest at a rate based on the
LIBOR Daily Floating Rate.



     “Lien” means any mortgage, pledge, hypothecation, assignment, encumbrance, lien
(statutory or other), charge, or other security interest or encumbrance (including any conditional
sale or other title retention agreement, any easement, right of way or other encumbrance on title
to real property, and any capital lease having substantially the same economic effect as any of the
foregoing).



     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Committed Loan or a Bid Loan.



     “Loan Documents” means this Agreement, each Note and the Fee Letter.



     “Material Adverse Effect” means (a) a material adverse effect upon, the operations,
business, properties or financial condition of the Borrower, VMC, the Target and their respective
Subsidiaries taken as a whole; (b) a material impairment of the ability of the Borrower to perform
its obligations under any Loan Document; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against the Borrower of any Loan Document.



     “Maturity Date” means the later of (a) the date that is 364 days after the Closing
Date (the “Original Maturity Date”) and (b) if maturity is extended pursuant to Section
2.15, the date that is 364 days after the Original Maturity Date; provided,
however, that, if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.



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



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit C.



     “Obligations” means all advances to, and debts, liabilities and other monetary
obligations of, the Borrower arising under any Loan Document or otherwise with respect to any Loan,
whether direct or indirect (including those acquired by assumption), absolute or contingent, due or
to become due, now existing or hereafter arising and including interest and fees that accrue after
the commencement by or against the Borrower or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint



12









 







venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document. “Other Taxes” shall not include any Taxes
imposed on (or measured by reference to) gross income, net income, or gain.



     “Outstanding Amount” means, with respect to Committed Loans and Bid Loans on any date,
the aggregate outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of Committed Loans and Bid Loans, as the case may be, occurring on such
date.



     “Partially Owned Subsidiary” means a Subsidiary that is not a Wholly Owned Subsidiary.



     “Participant” has the meaning specified in Section 10.06(d).



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



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permitted Encumbrances” means:




     (a) Liens imposed by law or any Governmental Authority for taxes, assessments or
charges that are not yet due or are being contested;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like
Liens imposed by law, arising in the ordinary course of business and securing obligations
that are not overdue by more than 30 days or where the validity or amount thereof is being
contested in good faith by appropriate proceedings;




     (c) pledges and deposits made in compliance with workers’ compensation, unemployment
insurance and other social security laws or regulations;




     (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;



13









 






     (e) judgment liens in respect of judgments that do not constitute an Event of Default;
and




     (f) easements, zoning restrictions, minor title imperfections, restrictions on use,
rights of way and similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or its Subsidiaries;


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



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



     “Platform” has the meaning specified in Section 6.02.



     “Properties” means all real property owned, leased or otherwise used or occupied by
the Borrower or any Subsidiary, wherever located.



     “Receivables” means all rights of the Borrower or its Subsidiaries to payment, whether
constituting an account, chattel paper, instrument, general intangible or otherwise, arising from
the sale of goods or services (including rights under bill and hold arrangements) by the Borrower
or its Subsidiaries (and including the right to payment of any interest or finance charges and
other obligations with respect thereto).



     “Receivables Securitization” means any transaction or series of transactions that may
be entered into by the Borrower and its Subsidiaries pursuant to which the Borrower and/or its
Subsidiaries may sell, convey or otherwise transfer to the Receivables Subsidiary and, in the case
of a transfer by the Receivables Subsidiary, any other Person, or may grant a security interest in,
any Receivables (whether now existing or arising in the future); provided that:




     (a) no portion of the indebtedness or any other obligations (contingent or otherwise)
of a Receivables Subsidiary (i) is guaranteed by the Borrower or its Subsidiaries (other
than the Receivables Subsidiary and excluding guarantees of obligations pursuant to
customary securitization undertakings), (ii) is recourse to or obligates the Borrower or
its Subsidiaries (other than the Receivables Subsidiary) for payment other than pursuant to
customary securitization undertakings or (iii) subjects any property or asset of the
Borrower or its Subsidiaries (other than the Receivables Subsidiary), directly or
indirectly, contingently or otherwise, to the satisfaction of



14









 







obligations incurred in such
transactions, other than pursuant to customary securitization undertakings;




     (b) the Borrower and its Subsidiaries (other than the Receivables Subsidiary) do not
have any obligation to maintain or preserve the financial condition of the Receivables
Subsidiary or cause such entity to achieve certain levels of operating results; and




     (c) fair value has been received.



     “Receivables Subsidiary” means a special purpose corporation that is a wholly owned
subsidiary of the Borrower, whose primary business shall be the acquisition of Receivables pursuant
to the Receivables Securitization and those activities incidental to the Receivables
Securitization.



     “Register” has the meaning specified in Section 10.06(c).



     “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Borrower as prescribed in the Securities Laws.



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



     “Request for Borrowing” means (a) with respect to a Committed Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, and (b) with respect to a Bid Loan, a Bid
Request.



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans has been
terminated pursuant to Section 8.02, Lenders holding in the aggregate more than 50% of the
Total Outstandings; provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of the Borrower and, solely for purposes of
notices given pursuant to Article II, any other officer or employee of the Borrower so
designated by any of the foregoing officers in a notice to the Administrative Agent. Any document
delivered hereunder that is signed by a Responsible Officer of the Borrower shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or other action on the
part of the Borrower and such Responsible Officer shall be conclusively presumed to have acted on
behalf of the Borrower.



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



15









 





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



     “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, and the applicable accounting and auditing principles, rules, standards and practices
promulgated, approved or incorporated by the SEC, all as amended.



     “Shareholders’ Equity” means, at any time, the shareholders’ equity of the Borrower
and its Consolidated Subsidiaries, as set forth or reflected on the most recent consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries prepared in accordance with GAAP.



     “Significant Subsidiary” means any Subsidiary within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.



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



     “SWAP Obligations” means all obligations of such Person with respect to interest rate
protection agreements, foreign currency exchange agreements or other hedging arrangements (valued
for any SWAP Obligation at any date, as the net payments that such Person would have to make in the
event of an early termination of the applicable agreement on such date).



     “Synthetic Lease” means any operating lease under GAAP for which the lessee retains
federal tax ownership of the property leased.



     “Synthetic Lease Obligations” means any and all liabilities, indebtedness, rent, and
all other obligations of the Borrower or any Subsidiary owed under any Synthetic Lease.



     “Target” means Florida Rock Industries, Inc., a Florida corporation.



     “Target Merger” means the merger of Fresno Merger Sub, Inc., a Florida corporation,
with and into the Target, with the Target as the surviving corporation of such merger.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings or like charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.



     “Total Capitalization” means the sum of (a) Shareholders’ Equity plus (b)
Consolidated Debt.



     “Total Outstandings” means on any date the aggregate Outstanding Amount of all Loans.



16









 





     “Transactions” means (a) the execution and delivery of the Loan Documents and the
borrowings hereunder and (b) the consummation of the Acquisition, the Target Merger, the Vulcan
Merger and the other transactions to occur pursuant to the Acquisition Documents.



     “Type” means (a) with respect to a Committed Loan, its character as a Base Rate Loan,
a Eurodollar Rate Loan or a LIBOR Floating Rate Loan, and (b) with respect to a Bid Loan, its
character as an Absolute Rate Loan or a Eurodollar Margin Bid Loan.



     “United States” and “U.S.” mean the United States of America.



     “VMC” means Vulcan Materials Company, a New Jersey corporation and the surviving
entity of the VMC Merger, to be renamed “VMC Corp.” on or about the Closing Date.



     “Vulcan Merger” means the merger of Virginia Merger Sub, Inc., a New Jersey
corporation, with and into Vulcan Materials Company, a New Jersey corporation, with Vulcan
Materials Company as the surviving corporation of such merger.



     “Wholly Owned Subsidiary” means any Subsidiary all of the shares of capital stock or
other ownership interests of which (except directors’ qualifying shares) are at the time directly
or indirectly owned by the Borrower.



     “Working Capital Credit Facilities” mean, collectively, (a) the 364-Day Bridge Credit
Agreement dated as of November 16, 2007, by and among the Borrower, Wachovia Bank, National
Association, as administrative agent, and the lenders party thereto, (b) the Five-Year Working
Capital Credit Agreement, and (c) any revolving credit or comparable credit agreement dated on or
after the Closing Date by and among the Target and any financial institutions thereto.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



     (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation”. The word
“will” shall be construed to have the same meaning and effect as the word “shall”.
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “herein”,
“hereof” and “hereunder”, and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified,



17









 







refer to
such law or regulation as amended, modified or supplemented from time to time, and (vi) the words
“asset” and “property” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.



     (b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including”; the words “to” and “until”
each mean “to but excluding”; and the word “through” means “to and
including”.



     (c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis throughout the
applicable period, as in effect from time to time, except as otherwise specifically
prescribed herein.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative
Agent and the Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.



     1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



     1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).



ARTICLE II.

THE COMMITMENTS AND BORROWINGS




     2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrower



18









 







from
time to time, on any Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Committed Borrowing, (i) the Total Outstandings
shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender shall not exceed such Lender’s Commitment. Within the limits of each
Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.01, prepay under Section 2.05, and reborrow under this
Section 2.01. Committed Loans may be Base Rate Loans, Eurodollar Rate Loans or LIBOR
Floating Rate Loans, as further provided herein.



     2.02 Borrowings, Conversions and Continuations of Committed Loans.



     (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice
to the Administrative Agent, which may be given by telephone. Each such notice must be received by
the Administrative Agent not later than 12:00 noon (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Committed Loans or LIBOR Floating Rate Loans, and
(ii) on the requested date of any Borrowing of Base Rate Committed Loans or LIBOR Floating Rate
Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000
or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion to Base Rate
Committed Loans or LIBOR Floating Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written)
shall specify (i) whether the Borrower is requesting a Committed Borrowing, a conversion of
Committed Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or
continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are
to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto.
If the Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable
Committed Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion
to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one
month.



     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage of the applicable Committed Loans,
and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to Base
Rate Loans described in the preceding subsection. In the case of a



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Committed Borrowing, each
Lender shall make the amount of its Committed Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 2:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial
Borrowing, Section 4.01), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.



     (e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from
one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than ten Interest Periods in effect with respect to Committed Loans.



     2.03 Bid Loans.



     (a) General. Subject to the terms and conditions set forth herein, each Lender agrees
that the Borrower may from time to time request the Lenders to submit offers to make loans (each
such loan, a “Bid Loan”) to the Borrower prior to the Maturity Date pursuant to this
Section 2.03; provided, however, that after giving effect to any Bid
Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of all Bid Loans shall not exceed the Bid Loan Sublimit. There shall
not be more than ten different Interest Periods in effect with respect to Bid Loans at any time.



     (b) Requesting Competitive Bids. The Borrower may request the submission of
Competitive Bids by delivering a Bid Request to the Administrative Agent not later than 12:00 noon
(i) one Business Day prior to the requested date of any Bid Borrowing that is to consist of
Absolute Rate Loans, or (ii) four Business Days prior to the requested date of any Bid Borrowing
that is to consist of Eurodollar Margin Bid Loans. Each Bid Request shall specify (i) the
requested date of the Bid Borrowing (which shall be a Business Day), (ii) the aggregate principal
amount of Bid Loans requested (which must be $10,000,000 or a whole multiple of $5,000,000 in
excess thereof), (iii) the Type of Bid Loans requested, and (iv) the duration of the Interest
Period with respect thereto, and shall be signed by a Responsible Officer of the Borrower. No Bid
Request shall contain a request for (i) more than one Type of Bid Loan or (ii) Bid Loans having
more than three different Interest Periods. Unless the Administrative Agent otherwise



20









 







agrees in
its sole and absolute discretion, the Borrower may not submit a Bid Request if it has submitted
another Bid Request within the prior five Business Days.



     (c) Submitting Competitive Bids.




     (i) The Administrative Agent shall promptly notify each Lender of each Bid Request
received by it from the Borrower and the contents of such Bid Request.




     (ii) Each Lender may (but shall have no obligation to) submit a Competitive Bid
containing an offer to make one or more Bid Loans in response to such Bid Request. Such
Competitive Bid must be delivered to the Administrative Agent not later than 10:30 a.m. (A)
on the requested date of any Bid Borrowing that is to consist of Absolute Rate Loans, and
(B) three Business Days prior to the requested date of any Bid Borrowing that is to consist
of Eurodollar Margin Bid Loans; provided, however, that any Competitive Bid
submitted by Bank of America in its capacity as a Lender in response to any Bid Request
must be submitted to the Administrative Agent not later than 10:15 a.m. on the date on
which Competitive Bids are required to be delivered by the other Lenders in response to
such Bid Request. Each Competitive Bid shall specify (A) the proposed date of the Bid
Borrowing; (B) the principal amount of each Bid Loan for which such Competitive Bid is
being made, which principal amount (x) may be equal to, greater than or less than the
Commitment of the bidding Lender, (y) must be $10,000,000 or a whole multiple of $5,000,000
in excess thereof, and (z) may not exceed the principal amount of Bid Loans for which
Competitive Bids were requested; (C) if the proposed Bid Borrowing is to consist of
Absolute Rate Loans, the Absolute Rate offered for each such Bid Loan and the Interest
Period applicable thereto; (D) if the proposed Bid Borrowing is to consist of Eurodollar
Margin Bid Loans, the Eurodollar Bid Margin with respect to each such Eurodollar Margin Bid
Loan and the Interest Period applicable thereto; and (E) the identity of the bidding
Lender.




     (iii) Any Competitive Bid shall be disregarded if it (A) is received after the
applicable time specified in clause (ii) above, (B) is not substantially in the
form of a Competitive Bid as specified herein, (C) contains qualifying, conditional or
similar language, (D) proposes terms other than or in addition to those set forth in the
applicable Bid Request, or (E) is otherwise not responsive to such Bid Request. Any Lender
may correct a Competitive Bid containing a manifest error by submitting a corrected
Competitive Bid (identified as such) not later than the applicable time required for
submission of Competitive Bids. Any such submission of a corrected Competitive Bid shall
constitute a revocation of the Competitive Bid that contained the manifest error. The
Administrative Agent may, but shall not be required to, notify any Lender of any manifest
error it detects in such Lender’s Competitive Bid.




     (iv) Subject only to the provisions of Sections 3.02, 3.03 and
4.02 and clause (iii) above, each Competitive Bid shall be irrevocable.



     (d) Notice to Borrower of Competitive Bids. Not later than 11:00 a.m. (i) on the
requested date of any Bid Borrowing that is to consist of Absolute Rate Loans, or (ii) three
Business Days prior to the requested date of any Bid Borrowing that is to consist of Eurodollar



21









 







Margin Bid Loans, the Administrative Agent shall notify the Borrower of the identity of each
Lender that has submitted a Competitive Bid that complies with Section 2.03(c) and of the terms of the
offers contained in each such Competitive Bid.



     (e) Acceptance of Competitive Bids. Not later than 11:30 a.m. (i) on the requested
date of any Bid Borrowing that is to consist of Absolute Rate Loans, and (ii) three Business Days
prior to the requested date of any Bid Borrowing that is to consist of Eurodollar Margin Bid Loans,
the Borrower shall notify the Administrative Agent of its acceptance or rejection of the offers
notified to it pursuant to Section 2.03(d). The Borrower shall be under no obligation to
accept any Competitive Bid and may choose to reject all Competitive Bids. In the case of
acceptance, such notice shall specify the aggregate principal amount of Competitive Bids for each
Interest Period that is accepted. The Borrower may accept any Competitive Bid in whole or in part;
provided that:




     (i) the aggregate principal amount of each Bid Borrowing may not exceed the applicable
amount set forth in the related Bid Request;




     (ii) the principal amount of each Bid Loan must be $10,000,000 or a whole multiple of
$5,000,000 in excess thereof;




     (iii) the acceptance of offers may be made only on the basis of ascending Absolute
Rates or Eurodollar Bid Margins within each Interest Period; and




     (iv) the Borrower may not accept any offer that is described in Section
2.03(c)(iii) or that otherwise fails to comply with the requirements hereof.



     (f) Procedure for Identical Bids. If two or more Lenders have submitted Competitive
Bids at the same Absolute Rate or Eurodollar Bid Margin, as the case may be, for the same Interest
Period, and the result of accepting all of such Competitive Bids in whole (together with any other
Competitive Bids at lower Absolute Rates or Eurodollar Bid Margins, as the case may be, accepted
for such Interest Period in conformity with the requirements of Section 2.03(e)(iii)) would
be to cause the aggregate outstanding principal amount of the applicable Bid Borrowing to exceed
the amount specified therefor in the related Bid Request, then, unless otherwise agreed by the
Borrower, the Administrative Agent and such Lenders, such Competitive Bids shall be accepted as
nearly as possible in proportion to the amount offered by each such Lender in respect of such
Interest Period, with such accepted amounts being rounded to the nearest whole multiple of
$1,000,000.



     (g) Notice to Lenders of Acceptance or Rejection of Bids. The Administrative Agent
shall promptly notify each Lender having submitted a Competitive Bid whether or not its offer has
been accepted and, if its offer has been accepted, of the amount of the Bid Loan or Bid Loans to be
made by it on the date of the applicable Bid Borrowing. Any Competitive Bid or portion thereof
that is not accepted by the Borrower by the applicable time specified in Section 2.03(e)
shall be deemed rejected.



     (h) Notice of Eurodollar Rate. If any Bid Borrowing is to consist of Eurodollar
Margin Loans, the Administrative Agent shall determine the Eurodollar Rate for the relevant



22









 







Interest Period, and promptly after making such determination, shall notify the Borrower and the
Lenders that will be participating in such Bid Borrowing of such Eurodollar Rate.



     (i) Funding of Bid Loans. Each Lender that has received notice pursuant to
Section 2.03(g) that all or a portion of its Competitive Bid has been accepted by the
Borrower shall make the amount of its Bid Loan(s) available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the
date of the requested Bid Borrowing. Upon satisfaction of the applicable conditions set forth in
Section 4.02, the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent.



     (j) Notice of Range of Bids. After each Competitive Bid auction pursuant to this
Section 2.03, the Administrative Agent shall notify each Lender that submitted a
Competitive Bid in such auction of the ranges of bids submitted (without the bidder’s name) and
accepted for each Bid Loan and the aggregate amount of each Bid Borrowing.



     2.04 [Reserved.]



     2.05 Prepayments.



     (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Committed Loans in whole or in part without premium or penalty;
provided that (i) such notice (which may be conditional) must be received by the
Administrative Agent not later than 12:00 noon (A) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Committed Loans
or LIBOR Floating Rate Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment
of Base Rate Committed Loans or LIBOR Floating Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire
principal amount thereof then outstanding. Each such notice shall specify the date and amount of
such prepayment and the
Type(s) of Committed Loans to be prepaid and, if Eurodollar Rate Loans are
to be repaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable
Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and payable on the
date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest on the amount prepaid, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Committed Loans of the Lenders
in accordance with their respective Applicable Percentages.



     (b) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then
in effect, the Borrower shall, on the next Business Day following the date on which the Borrower
receives notice from the Administrative Agent, prepay Loans in an aggregate amount equal to such
excess.



23









 





     (c) No Bid Loan may be prepaid without the prior consent of the applicable Bid Loan Lender.



     2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (a) any such notice shall be received by the
Administrative Agent not later than 12:00 noon three Business Days prior to the date of termination
or reduction, (b) any such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, (c) the Borrower shall not terminate or reduce the
Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total Outstandings would exceed the Aggregate Commitments, and (d) if, after giving effect to
any reduction of the Aggregate Commitments, the Bid Loan Sublimit exceeds the amount of the
Aggregate Commitments, the Bid Loan Sublimit shall be automatically reduced by the amount of such
excess. The Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees
accrued until the effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination



     2.07 Repayment of Loans. The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Committed Loans outstanding on such date.



     2.08 Interest.



     (a) At the Borrower’s option, subject to the provisions of subsection (b) below, (i)
each Eurodollar Rate Committed Loan shall bear interest on the outstanding principal amount thereof
for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period
plus the Applicable Rate; (ii) each Base Rate Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal
to the Base Rate; (iii) each Bid Loan shall bear interest on the outstanding principal amount
thereof for the Interest Period therefor at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus (or minus) the Eurodollar Bid Margin, or at the Absolute Rate
for such Interest Period, as the case may be; and (iv) each LIBOR Floating Rate Loan shall bear
interest on the outstanding principal amount thereof from the applicable borrowing date at a rate
per annum equal to the LIBOR Daily Floating Rate plus the Applicable Rate.




(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower under
any Loan Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request of the
Required Lenders, such amount shall thereafter bear interest at a fluctuating



24









 







interest rate
per annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.




     (iii) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



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



     2.09 Fees.



     (a) Facility Fee. The Borrower shall pay to the Administrative Agent for the account
of each Lender in accordance with its Applicable Percentage, a facility fee equal to the Applicable
Rate times the actual daily amount of the Aggregate Commitments (or, if the Aggregate
Commitments have terminated, on the Total Outstandings), regardless of usage. The facility fee
shall accrue at all times during the Availability Period (and thereafter so long as any Committed
Loans remain outstanding), including at any time during which one or more of the conditions in
Article IV is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the last day of the Availability Period (and, if applicable,
thereafter on demand). The facility fee shall be calculated quarterly in arrears, and if there is
any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.



     (b) Other Fees. The Borrower shall pay to each of Banc of America Securities LLC,
Wachovia Capital Markets, LLC and the Administrative Agent for their own respective accounts fees
in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees
and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).
Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent
of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.



25









 





     2.11 Evidence of Debt. The Borrowings made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Borrowings made by the Lenders to
the Borrower and the interest and payments thereon. Any failure to so record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay
any amount owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error. Upon the request of any Lender made through the
Administrative Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts
or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.



     2.12 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 3:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent after 3:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be.




(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing of Base
Rate Loans or LIBOR Floating Rate Loans, prior to 1:00 p.m. on the date of such Committed
Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share
of such Committed Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 (or, in the case of a
Committed Borrowing of Base Rate Loans or LIBOR Floating Rate Loans, that such Lender has made such
share available in accordance with and at the time required by Section 2.02) and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Committed Borrowing available
to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount in immediately available
funds with interest thereon, for each day




26











 






from and including the date such amount is made available to the Borrower to but excluding
the date of payment to the Administrative Agent, at (A) in the case of a payment to be made
by such Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation,
plus any administrative processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, and (B) in the case of a payment to
be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower
and such Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount
of such interest paid by the Borrower for such period. If such Lender pays its share of the
applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Committed Loan included in such Committed Borrowing. Any payment
by the Borrower shall be without prejudice to any claim the Borrower may have against a
Lender that shall have failed to make such payment to the Administrative Agent.




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders hereunder that
the Borrower will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender, in
immediately available funds with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Borrowing set forth in Article
IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent
shall return such funds (in like funds as received from such Lender) to such Lender, without
interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans and to make payments pursuant to Section 10.04(c) are several and not
joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to
make any payment under Section 10.04(c) on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no Lender shall be



27









 




responsible for the failure of any other Lender to so make its Committed Loan, to purchase its
participation or to make its payment under Section 10.04(c).




     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Committed Loans made by it resulting in such Lender’s receiving payment of a proportion of the
aggregate amount of such Committed Loans or participations and accrued interest thereon greater
than its pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the Committed Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Committed Loans and other amounts owing them, provided that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Committed Loans or to any assignee or participant, other than to
the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall
apply).



     The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.



     2.14 Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default and no Default would
result therefrom, upon notice to the Administrative Agent (which shall promptly notify the
Lenders), the Borrower may from time to time request an increase in the Aggregate Commitments (an
“Increase”) by an amount (for all such requests) not exceeding $500,000,000;
provided that (i) any such request for an Increase shall be in a minimum amount of
$25,000,000, and (ii) the Borrower may make a maximum of five such requests; provided,
however, the amount of Increases hereunder plus the amount of Increases under the
Five-Year Working



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Capital Credit Agreement (as such term is defined therein) shall not exceed, in the aggregate,
$500,000,000. At the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of delivery of such
notice to the Lenders).




     (b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Commitment and, if so, whether by
an amount equal to, greater than, or less than its Applicable Percentage of such requested
Increase. Any Lender not responding within such time period shall be deemed to have declined to
increase its Commitment.



     (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder. To achieve the full amount of a requested Increase and subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld), the Borrower may also
invite Eligible Assignees to become additional Lenders (“Additional Lenders”) pursuant to a
joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel;
provided however, that the Borrower may only invite such Additional Lenders after
each existing Lender has notified the Administrative Agent of its decision in accordance with
clause (b) above, and any such invitation to such Additional Lenders shall only be with
respect to amounts declined or deemed to be declined by existing Lenders.



     (d) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Increase Effective Date”) and the final allocation of such Increase.
The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation
of such Increase and the Increase Effective Date.



     (e) Conditions to Effectiveness of Increase. As a condition precedent to each
Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower as
of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of the Borrower (i) certifying and attaching the resolutions adopted by the Borrower
approving or consenting to such increase, and (ii) certifying that, before and after giving effect
to such Increase, no Default exists or would result from such Increase. The Borrower shall prepay
Committed Loans outstanding to all or certain of the Lenders on the Increase Effective Date (and
pay any additional amounts required pursuant to Section 3.05) and/or borrow Committed Loans
from all or certain of the Lenders on the Increase Effective Date to the extent necessary to keep
the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any
nonratable increase in the Commitments under this Section.



     (f) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 10.01 to the contrary.




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     2.15 Extension of Maturity Date.



     (a) Requests for Extension. The Borrower may, by notice to the Administrative Agent
(who shall promptly notify the Lenders) not more than 90 days but not less than 60 days prior to
the date that is 364 days after the Closing Date then in effect hereunder, request that each Lender
extend the Maturity Date (the “Original Maturity Date”) for one additional 364-day period.



     (b) Lender Elections to Extend. Each Lender, acting in its sole and individual
discretion, shall, by notice to the Administrative Agent given not earlier than 30 days prior to
the Original Maturity Date and not later than the date (the “Notice Date”) that is 20 days
prior to the Original Maturity Date, advise the Administrative Agent whether or not such Lender
agrees to such extension (and each Lender that determines not to so extend their Maturity Date (a
“Non-Extending Lender”) shall notify the Administrative Agent of such fact promptly after
such determination (but in any event no later than the Notice Date) and any Lender that does not so
advise the Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending
Lender. The election of any Lender to agree to such extension shall not obligate any other Lender
to so agree.



     (c) Notification by Administrative Agent. The Administrative Agent shall notify the
Borrower of each Lender’s determination under this Section no later than the date 15 days prior to
the Original Maturity Date (or, if such date is not a Business Day, on the next preceding Business
Day).



     (d) Additional Commitment Lenders. The Borrower shall have the right to replace each
Non-Extending Lender with, and add as “Lenders” under this Agreement in place thereof, one or more
Eligible Assignees (each, an “Additional Commitment Lender”) as provided in Section
10.13, provided that each of such Additional Commitment Lenders shall enter into an
Assignment and Assumption pursuant to which such Additional Commitment Lender shall, effective as
of the Original Maturity Date, undertake a Commitment (and, if any such Additional Commitment
Lender is already a Lender, its Commitment shall be in addition to such Lender’s Commitment
hereunder on such date).



     (e) Minimum Extension Requirement. If (and only if) the total of the Commitments of
the Lenders that have agreed so to extend their Maturity Date (each, an “Extending Lender”)
shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to
the Original Maturity Date, then, effective as of the Original Maturity Date, the Maturity Date of
each Extending Lender and of each Additional Commitment Lender shall be extended to the date
falling 364 days after the Original Maturity Date (except that, if such date is not a Business Day,
such Maturity Date as so extended shall be the next preceding Business Day) and each Additional
Commitment Lender shall thereupon become a “Lender” for all purposes of this Agreement.



     (f) Conditions to Effectiveness of Extensions. As a condition precedent to such
extension, the Borrower shall deliver to the Administrative Agent a certificate dated as of the
Original Maturity Date (in sufficient copies for each Extending Lender and each Additional
Commitment Lender) signed by a Responsible Officer of the Borrower (i) certifying and attaching the
resolutions adopted by the Borrower approving or consenting to such extension and (ii) certifying
that the representation and warranty contained in Section 5.04(c) is true and correct



30









 




on and as of the Original Maturity Date. In addition, on the Maturity Date of each
Non-Extending Lender, the Borrower shall prepay any Committed Loans outstanding on such date (and
pay any additional amounts required pursuant to Section 3.05) to the extent necessary to
keep outstanding Committed Loans ratable with any revised Applicable Percentages of the respective
Lenders effective as of such date.




     (g) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 10.01 to the contrary.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if
the Borrower shall be required by applicable law to deduct any Indemnified Taxes (including any
Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent or Lender, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.



     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.



     (c) Indemnification by the Borrower. Without duplication of any additional amounts
paid pursuant to Section 3.01(a), the Borrower shall indemnify the Administrative Agent and
each Lender, within ten days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative Agent or such
Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority, provided that, if the
Borrower determines that any such Indemnified Taxes or Other Taxes were not correctly or legally
imposed or asserted, the Administrative Agent or the Lender, as applicable, shall allow the
Borrower to contest (and shall cooperate in such contest), the imposition of such Tax upon the
reasonable request of the Borrower and at the Borrower’s expense; provided,
however, that the Administrative Agent or the Lender, as applicable, shall not be required
to participate in any contest that would, in its reasonable judgment, expose it to a material
commercial disadvantage or require it to disclose any information it considers confidential or
proprietary. A certificate as to the amount of such payment or liability delivered to the Borrower



31









 




by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its
own behalf or on behalf of a Lender, shall be conclusive; provided that such amounts are
determined on a reasonable basis.




     (d) Evidence of Payments. As soon as reasonably practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the Administrative Agent.



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements. Each Lender shall promptly provide such forms upon becoming
aware of the obsolescence, expiration or invalidity of any form previously delivered by such Lender
(unless it is legally unable to do so as a result of a Change in Law) and shall promptly notify the
Borrower at any time it determines that any previously delivered forms are no longer valid.



     Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or



32









 






     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.



     (f) Treatment of Certain Refunds and Credits. If the Administrative Agent or any
Lender determines, in its reasonable discretion, that it has received a refund of any Taxes or
Other Taxes or determines in its sole discretion exercised in good faith that it has obtained the
benefit of a credit for Taxes as to which it has been indemnified by the Borrower or with respect
to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the
Borrower an amount equal to such refund or the net benefit attributable to such credit (but only to
the extent of indemnity payments made, or additional amounts paid, by the Borrower under this
Section with respect to the Taxes or Other Taxes giving rise to such refund or credit), net of all
out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund or credit), provided that the Borrower, upon the request of the Administrative Agent
or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the Administrative
Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such
refund or credit to such Governmental Authority. This subsection shall not be construed to require
the Administrative Agent or any Lender to make available its tax returns (or any other information
relating to its taxes that it reasonably deems confidential) to the Borrower or any other Person.



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base
Rate Committed Loans or LIBOR Floating Rate Loans to Eurodollar Rate Loans shall be suspended until
such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise
to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon
demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate
Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof
that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market
for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Base



33









 




Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
(c) the Eurodollar Base Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be
suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be
deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans
in the amount specified therein.




     3.04 Increased Costs.



     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate);




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Eurodollar Rate Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender); or




     (iii) impose on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by such Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to reduce the amount of any sum received or receivable by such Lender (whether of principal,
interest or any other amount) then, upon request of such Lender, the Borrower will pay to such
Lender such additional amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.




     (b) Capital Requirements. If any Lender determines that any Change in Law affecting
such Lender or any Lending Office of such Lender or such Lender’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate of return on such
Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below
that which such Lender or such Lender’s holding company could have achieved but for such Change in
Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding
company with respect to capital adequacy), then from time to time the Borrower will pay to such
Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding
company for any such reduction suffered.



34









 





     (c) Certificates for Reimbursement. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender or its holding company, as the case may be,
as specified in subsection (a) or (b) of this Section and delivered to the Borrower
shall be conclusive absent manifest error; provided that such determinations are made on a
reasonable basis. The Borrower shall pay such Lender the amount shown as due on any such
certificate within ten days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lender’s right to demand such compensation, provided that the Borrower shall not be
required to compensate a Lender pursuant to the foregoing provisions of this Section for any
increased costs incurred or reductions suffered more than six months prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect thereof).



     3.05 Compensation for Losses. Upon written request of any Lender (with a copy to the
Administrative Agent, which shall set forth in reasonable detail the basis for requesting such
amounts), from time to time, the Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan or a LIBOR Floating Rate Loan on a day other than the last day of the Interest Period for such
Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan or a LIBOR
Floating Rate Loan on the date or in the amount notified by the Borrower; or



     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.13;


including any loss or expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary out-of-pocket administrative fees charged by
such Lender in connection with the foregoing.




     For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.



35









 





     3.06 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.



     3.07 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV.

CONDITIONS PRECEDENT TO BORROWINGS




     4.01 Conditions of Initial Borrowing. The obligation of each Lender to make its initial
Borrowing hereunder is subject to satisfaction of the following conditions precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in form and substance
satisfactory to the Administrative Agent and each of the Lenders:




     (i) executed counterparts of this Agreement, sufficient in number for distribution to
the Administrative Agent, each Lender and the Borrower;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note at least
two Business Days prior to the Closing Date;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of the Borrower as the Administrative Agent may
reasonably require evidencing the authority of each Responsible Officer thereof authorized
to act as a Responsible Officer in connection with this Agreement and the other Loan
Documents to which the Borrower is a party;



36









 






     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that the Borrower is duly organized or formed, and that the Borrower is
validly existing and in good standing in its jurisdiction of organization;




     (v) (i) an opinion of in-house counsel for the Borrower, addressed to the
Administrative Agent and each Lender, in the form of Exhibit E-1 and (ii) an opinion
of Wachtell, Lipton, Rosen, & Katz, special counsel for the Borrower, in the form of
Exhibit E-2;




     (vi) a certificate signed by a Responsible Officer of the Borrower certifying that
there has been no event or circumstance since December 31, 2006, that has had or could be
reasonably expected to have a Material Adverse Effect;




     (vii) a certificate signed by a Responsible Officer of the Borrower certifying as to
the accuracy and completeness of the Acquisition Documents, copies of which shall be
attached thereto, and certifying that the Acquisition shall have been, or substantially
simultaneously with the effectiveness of this Agreement shall be, consummated;




     (viii) satisfactory evidence that the Existing Credit Facilities shall have been, or
will be substantially contemporaneously with the effectiveness of this Agreement, terminated
and repaid in full;




     (ix) satisfactory evidence that (A) the Five-Year Working Capital Credit Agreement and
(B) the 364-Day Bridge Credit Agreement, dated on or about the date hereof, by and among the
Borrower, Wachovia Bank, National Association, as administrative agent, and the lenders
party thereto shall have been, or will be substantially contemporaneously with the
effectiveness of this Agreement, consummated; and




     (x) such other documents as the Administrative Agent or the Required Lenders reasonably
may require.



     (b) The Acquisition shall have been, or substantially simultaneously with the effectiveness of
this Agreement shall be, consummated on or before November 30, 2007 in accordance with the
Acquisition Agreement. The Acquisition Documents shall be reasonably satisfactory to the
Arrangers, it being understood that the Acquisition Agreement dated as of February 19, 2007, as
amended by Amendment No. 1 dated as of April 9, 2007, is satisfactory to the Arrangers. All
conditions precedent to the consummation of the Acquisition shall have been satisfied or waived
(with the prior consent of the Arrangers if the Arrangers reasonably determine such waiver is
materially adverse to the Lenders).



     (c) Any fees required to be paid on or before the Closing Date shall have been paid.



     (d) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable
fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if
requested by the Administrative Agent) to the extent invoiced two Business Days prior to the
Closing Date, plus such additional amounts of such fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and disbursements incurred or to



37









 




be incurred by it through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and the Administrative
Agent).




     Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



     4.02 Conditions to all Borrowings. The obligation of each Lender to honor any Request for
Borrowing (other than the initial funding on the Closing Date, a Committed Loan Notice requesting
only a conversion of Committed Loans to the other Type, or a continuation of Eurodollar Rate Loans)
is subject to the following conditions precedent:



     (a) All representations and warranties of the Borrower contained in Article V (except
for the representations and warranties contained in Sections 5.04(c) and 5.05
hereof) that are qualified by materiality shall be true and correct on and as of the date of such
Borrowing, and all representations and warranties of the Borrower contained in Article V
(except for the representations and warranties contained in Sections 5.04(c) and
5.05 hereof) that are not qualified by materiality shall be true and correct in all
material respects on and as of the date of such Borrowing, except, in each case, to the extent that
such representations and warranties specifically refer to an earlier date, in which case they shall
be true and correct as of such earlier date.



     (b) No Default shall exist, or would result from such proposed Borrowing or from the
application of the proceeds thereof.



     (c) The Administrative Agent shall have received a Request for Borrowing in accordance with
the requirements hereof.



     Each Request for Borrowing (other than a Committed Loan Notice requesting only a conversion of
Committed Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the
Borrower shall be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Borrowing.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power. The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation, is
duly qualified to transact business in every jurisdiction where the failure to qualify would not
reasonably be expected to have a Material Adverse Effect, and has all



38









 




corporate powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted except to the extent that failure to do so would
not reasonably be expected to have a Material Adverse Effect.




     5.02 Authorization; No Contravention; Governmental Authorization. The execution, delivery and
performance by the Borrower of this Agreement, the Notes and the other Loan Documents (a) are
within the Borrower’s corporate powers, (b) have been duly authorized by all necessary corporate
action, (c) require no approval, consent, exemption, authorization, or other action by, or notice
to, or filing with, any Governmental Authority or any other Person, except as have been obtained or
made and are in full force and effect, (d) do not violate or constitute a default under, (i) any
provision of applicable law or regulation, (ii) any material agreement, judgment, injunction,
order, decree or other material instrument binding upon the Borrower or any of its Subsidiaries or
(iii) the Organization Documents of the Borrower, and (e) do not result in the creation or
imposition of any Lien on any of the material assets of the Borrower or any of its Subsidiaries,
except in each case referred to in clauses (d)(i), (d)(ii) or (e) to the
extent such conflict, breach or violation would not reasonably be expected to have a Material
Adverse Effect.



     5.03 Binding Effect. This Agreement constitutes a valid and binding agreement of the Borrower
enforceable in accordance with its terms, and the Notes and the other Loan Documents, when executed
and delivered in accordance with this Agreement, will constitute valid and binding obligations of
the Borrower enforceable in accordance with their respective terms, provided that the
enforceability hereof and thereof is subject in each case to general principles of equity and to
bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’ rights
generally, regardless of whether considered in a proceeding in equity or at law.



     5.04 Financial Statements; No Material Adverse Effect.



     (a) The audited consolidated balance sheet of VMC and its Consolidated Subsidiaries for the
fiscal year ended December 31, 2006 (i) was prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein; and (ii) fairly
presents in all material respects the financial condition of VMC and its Consolidated Subsidiaries
as of the date thereof and their results of operations for the period covered thereby in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein.



     (b) The unaudited consolidated balance sheet of VMC and its Consolidated Subsidiaries dated
March 31, 2007, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present in all material respects the financial condition of the
Borrower and its Consolidated Subsidiaries as of the date thereof and their results of operations
for the period covered thereby, subject, in the case of clauses (i) and (ii), to
the absence of footnotes and to normal year-end audit adjustments.



39









 





     (c) Since December 31, 2006, there has been no event or circumstance, either individually or
in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.



     5.05 Litigation. Except as disclosed in any SEC filings of the Borrower, VMC or the Target
made prior to the Closing Date, there is no action, suit or proceeding pending, or to the knowledge
of the Borrower threatened in writing, against the Borrower or any of its Subsidiaries before any
court or arbitrator or any governmental body, which would reasonably be expected to have a Material
Adverse Effect or which in any manner draws into question the validity of or which involves this
Agreement, the Notes or any other Loan Documents.



     5.06 Taxes. There have been filed on behalf of the Borrower and its Subsidiaries all Federal
income tax returns and all other material income, excise, property and other tax returns which are
required to be filed by them and all taxes due pursuant to such returns or pursuant to any
assessment received by or on behalf of the Borrower or any Subsidiary have been paid, except those
which are being contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP.



     5.07 ERISA Compliance.



     (a) With respect to each Plan (other than a Multiemployer Plan), the Borrower and each member
of the Controlled Group have fulfilled their obligations under the minimum funding standards of
ERISA and the Code and are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and have not incurred any material liability to the PBGC (other
than for premiums due but not yet delinquent under Section 4007 of ERISA) or a Plan (other than a
Multiemployer Plan) under Title IV of ERISA (other than contributions in the ordinary course).



     (b) Neither the Borrower nor any member of the Controlled Group has incurred any withdrawal
liability with respect to any Multiemployer Plan under Title IV of ERISA that could reasonably be
expected to have a Material Adverse Effect, and no such liability is expected to be incurred that
would reasonably be expected to have a Material Adverse Effect.



     5.08 Margin Regulations; Investment Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.



     (b) The Borrower is not and is not required to be registered as an “investment company” under
the Investment Company Act of 1940.



     5.09 Disclosure. No report, financial statement, certificate or other information furnished
in writing by or on behalf of the Borrower to the Administrative Agent or any Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement or delivered
hereunder or under any other Loan Document (in each case, as modified or supplemented by other
information so furnished), taken as a whole and including the information



40









 




contained in any filings made with the SEC by the Borrower, VMC or the Target, contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading at the time
made; provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed by
the Borrower to be reasonable at the time.




     5.10 Compliance with Laws. The Borrower and its Subsidiaries are in compliance in all
material respects with the requirements of all Laws and all orders, writs, injunctions, executive
orders and decrees applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.



     5.11 Taxpayer Identification Number. The Borrower’s true and correct U.S. taxpayer
identification number is set forth on Schedule 10.02.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, the Borrower shall:



     6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower, a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of
the end of such fiscal year and the related consolidated statements of income, shareholders’ equity
and cash flows for such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all accompanied by a report thereon of a Registered Public Accounting
Firm, with such certification to be free of a going concern qualification or qualification as to
the scope of audit; and



     (b) as soon as available, but in any event within 60 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended
September 30, 2007), (i) a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal quarter and the related statement of income, and (ii) a
statement of cash flows for the portion of the fiscal year ended at the end of such fiscal quarter,
setting forth in each case in comparative form, respectively, the figures for the corresponding
fiscal quarter and the corresponding portion of the previous fiscal year, all certified (subject to
normal year-end adjustments and the absence of footnotes) as to fairness of presentation and GAAP
by the chief financial officer or the chief accounting officer of the Borrower.



41









 





     As to any information contained in materials furnished pursuant to Section 6.02(b),
the Borrower shall not be separately required to furnish such information under clause (a)
or (b) above, and to the extent that the Borrower has filed a Form 10K or Form 10Q for the
respective financial period with the SEC, it shall be deemed to have satisfied clauses (a)
and (b) above.



     6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in
form and detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b) (commencing with the delivery of the financial statements for the
fiscal quarter ended September 30, 2007), a duly completed Compliance Certificate signed by the
chief executive officer, chief financial officer, treasurer or controller of the Borrower;



     (b) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration statements which the Borrower
may file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not
otherwise required to be delivered to the Administrative Agent pursuant hereto; and



     (c) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as
the Administrative Agent or any Lender may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(b) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet, at www.sec.gov; or (ii) on which such documents are
posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender
and the Administrative Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that: upon the request of the
Administrative Agent, the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that makes a written request to the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender. Except for Compliance Certificates, the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by the Borrower with any
such request for delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders materials and/or information provided by or on behalf of the Borrower
hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-



42









 




public information with respect to the Borrower or its securities) (each, a “Public
Lender”). The Borrower hereby agrees that so long as the Borrower is the issuer of any
outstanding debt or equity securities that are registered or issued pursuant to a private offering
or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be
made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x)
by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the
Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as not
containing any material non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be treated as set
forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated “Public Investor”; and (z) the
Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated
“Public Investor”. Notwithstanding the foregoing, the Borrower shall be under no obligation to
mark any Borrower Materials “PUBLIC”.




     6.03 Notices. Promptly, but in any event, within five (5) Business Days of a Responsible
Officer of the Borrower becoming aware thereof, notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default that is continuing; and



     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a contractual
obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or proceeding affecting
the Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws.



     Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and
stating what action the Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 6.03(a) shall describe with reasonable particularity any and all
provisions of this Agreement and any other Loan Document that have been breached.



     6.04 Payment of Obligations. Pay and discharge all its material obligations and liabilities
prior to such obligations or liabilities being delinquent, including all Federal income taxes and
all other material tax liabilities, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being maintained by the
Borrower or such Subsidiary, except where the failure to so pay, discharge, contest or maintain
reserves would not reasonably be expected to have a Material Adverse Effect.



     6.05 Preservation of Existence. (a) Preserve, renew and maintain in full force and effect
its legal existence under the Laws of the jurisdiction of its incorporation except in a



43









 




transaction permitted hereunder; (b) preserve, renew and maintain in full force and effect its
good standing under the Laws of the jurisdiction of its incorporation, except where the failure to
do so would not reasonably be expected to result in a Material Adverse Effect; and (c) take all
reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary in
the normal conduct of its business, except to the extent that the Borrower determines such action
is not necessary in the conduct of the business of the Borrower and its Subsidiaries taken as a
whole, or failure to do so would not reasonably be expected to have a Material Adverse Effect.




     6.06 Maintenance of Properties. Maintain, preserve and protect all of its material properties
and equipment necessary in the operation of its business in good working order and condition,
ordinary wear and tear excepted, and make all necessary repairs thereto and renewals and
replacements thereof, except where the Borrower determines such action is not necessary in the
conduct of the business of the Borrower and its Subsidiaries taken as a whole, or the failure to do
so would not reasonably be expected to have a Material Adverse Effect.



     6.07 Self-Insurance. Maintain insurance, or adequate reserves in lieu of insurance, against
loss to all property owned by it material to its business in comparable amounts and against such
risks as are usually insured against in the same general locale by companies of established repute
engaged in the same or similar business.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.



     6.09 Books and Records; Inspection Rights. (a) Keep proper books of record and account in
which full, true and correct entries are made of all dealings and transactions in relation to its
business and activities sufficient to permit the preparation of statements in conformity with GAAP;
and (b) permit representatives and independent contractors of the Administrative Agent and each
Lender to visit and inspect any of its properties, to examine extracts from its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its officers and independent public accountants, all at the
expense of the Administrative Agent or such Lender, as applicable, to the extent reasonably
requested and at such reasonable times during normal business hours and upon reasonable advance
notice to the Borrower, but not more frequently than once per every 12 month period,
provided, however, that when an Event of Default exists the Administrative Agent or
any Lender (or any of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Borrower as often as may be reasonably requested.



     6.10 Use of Proceeds. Use the proceeds of the Borrowings solely (a) for the payment of
amounts payable under the Acquisition Documents as consideration for the Acquisition, (b) for the
payment of fees, commissions and expenses payable in connection with the Transactions, (c) to
refinance all indebtedness outstanding under the Existing Credit Facilities, (d) to provide
liquidity for ordinary course commercial paper credit facilities to which the Borrower is a party




44












 




and commercial paper issued by the Borrower on or about the Closing Date the proceeds of which
are used to finance the Acquisition in part, and (e) for ongoing working capital requirements of
the Borrower and its Subsidiaries and for general corporate purposes.




ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, the Borrower shall not, directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date of this Agreement;



     (c) Liens on any asset securing Indebtedness incurred or assumed for the purpose of financing,
refinancing or refunding all or any part of the cost of acquiring, constructing or improving such
asset; provided that such Lien attaches to such asset concurrently with or within 18 months
after the acquisition or completion of construction thereof;



     (d) Liens on any asset of any Person existing at the time such Person is merged or
consolidated with or into the Borrower and not created in contemplation of such event;



     (e) Liens existing on any asset prior to the acquisition thereof by the Borrower and not
created in contemplation of such acquisition;



     (f) Liens in favor of any Subsidiary;



     (g) Liens arising out of the refinancing, extension, renewal, refunding or replacement of any
Indebtedness secured by any Lien permitted by any of the foregoing paragraphs of this Section
7.01; provided that the amount of such Indebtedness secured by any such Lien is not
increased;



     (h) Liens incidental to the conduct of its business or the ownership of its assets which (i)
do not secure Indebtedness and (ii) do not in the aggregate materially detract from the value of
its assets or materially impair the use thereof in the operation of its business;



     (i) Liens on margin stock (within the meaning of Regulation U issued by the FRB);



     (j) Liens on Receivables pursuant to a bona fide Receivables Securitization;



     (k) Liens not otherwise permitted by the foregoing subsections of this Section 7.01
securing Indebtedness in an aggregate principal amount at any time outstanding not to exceed 20% of
Shareholders’ Equity; and



45









 





     (l) Permitted Encumbrances.



     7.02 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into any other
Person (other than the Transactions), provided that the Borrower may enter into any such
transaction with another Person so long as (a) the Borrower is the surviving entity, or the
surviving entity is a Person is organized under the laws of the United States of America or one of
its States or Commonwealths or the District of Columbia and expressly assumes in writing the
obligations set forth under this Agreement and the other Loan Documents, (b) such Person is engaged
in lines of business substantially similar to those lines of business conducted by the Borrower on
the date hereof or any business substantially related or incidental thereto or logical extensions
thereof, (c) prior to giving effect to such transaction, each of S&P and Moody’s shall have
delivered to the Administrative Agent a ratings letter indicating that, after giving effect to such
transaction, the Surviving Person shall have a Debt Rating of not less than BBB-/Baa3, as
applicable, and (d) immediately after giving effect to such transaction, no Default shall have
occurred and be continuing.



     7.03 Sales of Assets. Sell, lease or otherwise transfer all or substantially all of the
assets of the Borrower and its Subsidiaries taken as a whole, unless (a) such sale, lease or other
transfer is to the Borrower or a Wholly Owned Subsidiary, or (b) such sale or other transfer
consists of the sale of Receivables pursuant to a Receivables Securitization.



     7.04 Dissolution. Suffer or permit the dissolution or liquidation of any Significant
Subsidiary, except (a) in connection with a corporate reorganization of the Borrower permitted by
Section 7.02, or (b) in connection with the sale of a Subsidiary or its assets permitted
pursuant to Section 7.03.



     7.05 Use of Proceeds. Use the proceeds of any Borrowing, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the
meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally incurred for such purpose.



     7.06 Ratio of Consolidated Debt to Total Capitalization. Permit the ratio of Consolidated
Debt to Total Capitalization at any time to be greater than 0.65 to 1.00; provided,
however, that if in connection with a Specified Acquisition, (i) Consolidated Debt has
increased as a result of such Specified Acquisition from the amount thereof immediately prior to
such Specified Acquisition and (ii) the Administrative Agent has received a Specified Acquisition
Notice within ten days after consummation of such Specified Acquisition, then, for a period of 180
consecutive days following the consummation of such Specified Acquisition, the additional
Consolidated Debt incurred or assumed in connection with such Specified Acquisition shall be
excluded from Consolidated Debt for purposes of calculating the ratio of Consolidated Debt to Total
Capitalization so long as such ratio, if calculated without such exclusion, would not exceed 0.75
to 1.00; provided further however, that such additional Consolidated Debt
shall not be excluded from such ratio if in connection with the related Specified Acquisition, the
Borrower’s Debt Rating is suspended, withdrawn or reduced to below the Reference Level. For
purposes of calculating the ratio of Consolidated Debt to Total Capitalization, Consolidated Debt
shall



46









 







exclude Hybrid Securities to the extent such excluded amount does not exceed 15% of Total
Capitalization at such time.



     For purposes of this Section 7.06:




     (a) “Hybrid Securities” means long-term securities issued by either the Borrower or any
Subsidiary thereof that (i) are contractually subordinated to senior indebtedness, (ii)
mature at least ten years after the issuance thereof, (iii) allow the issuer to temporarily
defer the payment of interest, and (iv) receive some degree of equity classification by S&P
at the time such securities were issued;




     (b) “Reference Level” means a Debt Rating of BBB or better by S&P or Baa2 or better by
Moody’s; provided that if only one of the foregoing Debt Ratings is satisfied, the
other Debt Rating is not lower than BBB- by S&P or Baa3 by Moody’s;




     (c) a “Specified Acquisition” means any acquisition by the Borrower or a Subsidiary of
the Borrower of any Person (the “Specified Acquisition Target”) (or substantially all of the
assets of any Person or division thereof), that (x) is engaged in lines of business
substantially similar to those lines of business conducted by the Borrower and its
Subsidiaries on the date hereof or any business substantially related or incidental thereto
or logical extensions thereof and (y) such Specified Acquisition Target’s board of directors
have not objected to such acquisition; and




     (d) a “Specified Acquisition Notice” means a notice delivered by the Borrower notifying
the Administrative Agent of a Specified Acquisition and stating that the conditions in
clauses (i) and (ii) to the proviso to the first sentence of Section
7.06 above have been satisfied.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower fails to pay (i) when and as due and payable, any
amount of principal of any Loan, or (ii) within five Business Days after the same becomes due, any
interest on any Loan, or any fee due hereunder, or (iii) within five Business Days after the same
becomes due, any other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.01 (within 15 days after any financial
statements required to be delivered under Section 6.01 are due), 6.03, 6.05
(with respect to existence only), 6.09(b) or 6.10 or Article VII; or



     (c) Other Defaults. The Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by subsection (a) or
(b) above) and such failure shall not have been cured within 30 days after the earlier to
occur of (i) written



47









 







notice thereof has been given to the Borrower by the Administrative Agent at the request of
any Lender and (ii) a Responsible Officer otherwise becomes aware of any such failure; or



     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith shall be incorrect in
any material respect when made or deemed made; or



     (e) Cross-Default. (i) The Borrower shall fail to make any payment in respect of
Indebtedness under any Working Capital Credit Facility which results in the acceleration of the
maturity of such Indebtedness; or (ii) the Borrower or any Significant Subsidiary that is a Wholly
Owned Subsidiary shall fail to make any payment in respect of Indebtedness, SWAP Obligations or
Synthetic Lease Obligations (other than the Notes) if the aggregate amount of such payment is equal
to or greater than $25,000,000 when due (after any applicable grace period); or (iii) any
Significant Subsidiary that is a Partially Owned Subsidiary shall fail to make any payment in
respect of Indebtedness, SWAP Obligations or Synthetic Lease Obligations, in each case that are
Guaranteed by the Borrower, if the aggregate amount of such payment is equal to or greater than
$25,000,000 when due (after any applicable grace period); or (iv) any event or condition shall
occur which results in the acceleration of the maturity of Indebtedness, SWAP Obligations or
Synthetic Lease Obligations in the aggregate outstanding (other than the Notes) equal to or greater
than $100,000,000 of the Borrower or any Significant Subsidiary that is a Wholly Owned Subsidiary
(including, without limitation, any required mandatory prepayment or “put” of such Indebtedness to
the Borrower or any Significant Subsidiary that is a Wholly Owned Subsidiary) or enables (or, with
the giving of notice or lapse of time or both, would enable) the holders of such Indebtedness, SWAP
Obligations or Synthetic Lease Obligations (or commitment with respect thereto) or any Person
acting on such holders’ behalf to accelerate the maturity thereof or terminate any such commitment
(including, without limitation, any required mandatory prepayment or “put” of such Indebtedness to
the Borrower or any Significant Subsidiary that is a Wholly Owned Subsidiary); or (v) any event or
condition shall occur which results in the acceleration of the maturity of Indebtedness, SWAP
Obligations or Synthetic Lease Obligations in the aggregate outstanding (other than the Notes) of
any Significant Subsidiary that is a Partially Owned Subsidiary the Guaranteed Amount of which is
equal to or greater than $100,000,000 (including, without limitation, any required mandatory
prepayment or “put” of such Indebtedness to any Significant Subsidiary that is a Partially Owned
Subsidiary) or enables (or, with the giving of notice or lapse of time or both, would enable) the
holders of such Indebtedness, SWAP Obligations or Synthetic Lease Obligations (or commitment with
respect thereto) or any Person acting on such holders’ behalf to accelerate the maturity thereof or
terminate any such commitment (including, without limitation, any required mandatory prepayment or
“put” of such Indebtedness to any Significant Subsidiary that is a Partially Owned Subsidiary); or



     (f) Insolvency Proceedings, Etc. The Borrower or any of its Significant Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes
an assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any substantial part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and



48









 







the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding
under any Debtor Relief Law relating to any such Person or to all or any substantial part of its
property is instituted without the consent of such Person and continues undismissed or unstayed for
60 calendar days, or an order for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) The Borrower or any Significant
Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as
they become due, or (ii) any writ or warrant of attachment or execution or similar process is
issued or levied against all or a substantial part of the property of any such Person and is not
released, vacated, discharged or fully bonded within 30 days after its issue or levy; or



     (h) Judgments. One or more judgments or orders for the payment of money in an
aggregate amount in excess of $100,000,000 shall be rendered against the Borrower or any Subsidiary
and such judgment or order shall continue unsatisfied and unstayed for a period of 30 days (i)
after the entry of any such judgment or order, or (ii) after any appeal in good faith of such
judgment or order so long as during such appeal any execution of such judgment or order is stayed;
or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Plan or Multiemployer Plan
which has resulted or is reasonably likely to result in liability of the Borrower under Title IV of
ERISA to the Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $100,000,000;
or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $100,000,000.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



     (a) declare the commitment of each Lender to make Loans to be terminated, whereupon such
commitments and obligation shall be terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; and



     (c) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans shall automatically terminate, the unpaid principal amount
of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become
due and payable, without further act of the Administrative Agent or any Lender.




49









 








     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable), any amounts
received on account of the Obligations shall be applied by the Administrative Agent in the
following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including fees,
charges and disbursements of counsel to the respective Lenders and amounts payable under
Article III), ratably among them in proportion to the respective amounts described in this
clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and other Obligations, ratably among the Lenders in proportion to the
respective amounts described in this clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans, ratably among the Lenders in proportion to the respective amounts described in this
clause Fourth held by them; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The provisions of this
Article are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower
shall not have rights as a third party beneficiary of any of such provisions.



     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with



50









 







the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lenders.



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



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



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



     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower or a Lender.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have



51









 







been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled
to the satisfaction of a Lender, the Administrative Agent may presume that such condition is
satisfactory to such Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.



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



     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such appointment, then, unless
other arrangements satisfactory to the Administrative Agent have been made, such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under the other Loan
Documents and (2) all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender directly, until such
time as the Required Lenders appoint a successor Administrative Agent as provided for above in this
Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.04 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties



52









 







in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or any related agreement
or any document furnished hereunder or thereunder.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Joint
Bookrunners, Joint Lead Arrangers, Syndication Agent or Co-Documentation Agents listed on the cover
page hereof shall have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a
Lender hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to the Borrower, the
Administrative Agent (irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered,
by intervention in such proceeding or otherwise



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their respective agents and counsel
and all other amounts due the Lenders and the Administrative Agent under Sections 2.09 and
10.04) allowed in such judicial proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 10.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization,



53









 







arrangement, adjustment or composition affecting the Obligations or the rights of any Lender
to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.



ARTICLE X.

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower, shall be effective unless in
writing signed by the Required Lenders and the Borrower and acknowledged by the Administrative
Agent, and each such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment, waiver
or consent shall:



     (a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of
them) or any scheduled or mandatory reduction of the Aggregate Commitments hereunder or under any
other Loan Document without the written consent of each Lender directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan, or
(subject to clause (ii) of the second proviso to this Section 10.01) any fees or
other amounts payable hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby; provided, however, that only the consent of
the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any
obligation of the Borrower to pay interest at the Default Rate;



     (e) change Section 2.13 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender; or



     (f) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
and (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting


54









 






Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended without the consent of
such Lender.




     10.02 Notices; Effectiveness; Electronic Communication.



     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b)
below), all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as follows:




     (i) if to the Borrower or the Administrative Agent, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule
10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.



     Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection (b).



     (b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender pursuant to Article II if such
Lender has notified the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next Business Day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



55









 





     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided, however, that in no event shall
any Agent Party have any liability to the Borrower, any Lender or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or actual damages).



     (d) Change of Address, Etc. Each of the Borrower and the Administrative Agent may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the Borrower and the
Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time
to time to ensure that the Administrative Agent has on record (i) an effective address, contact
name, telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.



     (e) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made
in a manner specified herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the
Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrower, except to
the extent that such losses, claims, expenses or liabilities are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Related Party. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the Administrative Agent, and each
of the parties hereto hereby consents to such recording.



     10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent to
exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or



56









 







partial exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.



     10.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of one counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred
by the Administrative Agent or any Lender (including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender) in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof) and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, penalties, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for any Indemnitee), incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the Borrower arising out of,
in connection with, or as a result of (i) the execution or delivery of this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder, the consummation of the
transactions contemplated hereby or thereby or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, or (iii) any
actual or prospective claim, penalty, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower, and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, penalties, damages, liabilities or related expenses (x) are determined by
a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the
Borrower against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if the Borrower has obtained a final and nonappealable judgment
in its favor on such claim as determined by a court of competent jurisdiction.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by



57









 







it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent)
or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party
of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection
with such capacity. The obligations of the Lenders under this subsection (c) are subject
to the provisions of Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee
referred to in subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence of willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.



     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent or such Lender in
its discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share
(without duplication) 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 is made at a
rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the
Lenders under clause (b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.



58









 





     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the provisions of subsection
(d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of subsection (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that any such
assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000 unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met.



59









 






     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned.




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in
addition:




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; and




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to be a
Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.



     Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but
shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05,
and 10.04 with respect to facts and circumstances occurring prior to the effective date of
such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to
the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.



     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment



60









 







and Assumption delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that adversely affects such Participant. Subject to subsection (e)
of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to subsection (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section
10.08 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



61









 





     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature”, and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority purporting to have jurisdiction over it or any of its Affiliates
(including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g)
with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis
from a source other than the Borrower.



     For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary,
provided that, in the case of information received from the Borrower or any Subsidiary
after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



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



62









 





     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender and each of their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate
to or for the credit or the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender,
irrespective of whether or not such Lender shall have made any demand under this Agreement or any
other Loan Document and although such obligations of the Borrower may be contingent or unmatured or
are owed to a branch or office of such Lender different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender and their respective
Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify
the Borrower and the Administrative Agent promptly after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of such setoff
and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement and the other Loan Documents
may be executed in counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement and the other Loan Documents constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement and the other Loan Documents shall become effective when they
shall have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement and any
other Loan Document by telecopy shall be effective as delivery of a manually executed counterpart
of this Agreement and the other Loan Documents.



     10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof and
shall continue in full force and effect as long as any Loan or any



63









 







other Obligation hereunder shall remain unpaid or unsatisfied; provided that such
representations and warranties shall only be made or deemed made as of the dates explicitly
required herein or therein. Such representations and warranties have been or will be relied upon
by the Administrative Agent and each Lender.



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



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a
Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in, and consents required by,
Section 10.06), all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment), provided that:



     (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);



     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents (including any amounts under Section 3.05) from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



     10.14 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.



64









 





     (b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY OF THE OTHER
PARTIES HERETO OR THEIR PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     (c) WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF



65









 







LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Borrower acknowledges and agrees that: (i) the credit
facilities provided for hereunder and any related arranging or other services in connection
therewith (including in connection with any amendment, waiver or other modification hereof or of
any other Loan Document) are an arm’s-length commercial transaction between the Borrower and its
Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the other hand, the
Borrower is capable of evaluating and understanding and understands and accepts the terms, risks
and conditions of the transactions contemplated hereby and by the other Loan Documents (including
any amendment, waiver or other modification thereof or thereof); (ii) in connection with the
process leading to such transaction, the Administrative Agent and each Arranger each is and has
been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the
Borrower or any of its Affiliates, stockholders, creditors or employees or any other Person; (iii)
neither the Administrative Agent nor the Arrangers has assumed or will assume an advisory, agency
or fiduciary responsibility in favor of the Borrower with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect to any amendment, waiver
or other modification hereof or of any other Loan Document (irrespective of whether the
Administrative Agent or any Arranger has advised or is currently advising the Borrower or any
of its Affiliates on other matters) and neither the Administrative Agent nor any Arranger has any
obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv)
the Administrative Agent and each Arranger and their respective Affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Borrower and its
Affiliates, and neither the Administrative Agent nor any Arranger has any obligation to disclose
any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the
Administrative Agent and each Arranger have not provided and will not provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby
(including any amendment, waiver or other modification hereof or of any other Loan Document) and
the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it
has deemed appropriate. The Borrower hereby waives and releases, to the fullest extent permitted
by law, any claims that it may have against the Administrative Agent and each Arranger with respect
to any breach or alleged breach of agency or fiduciary duty.



     10.17 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined)
and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act. The Borrower shall, following a
request by the Administrative Agent or any Lender, provide all



66









 







documentation and other information that the Administrative Agent or such Lender reasonably
requests in order to comply with its ongoing obligations under applicable “know your customer” and
anti-money laundering rules and regulations, including the Act.



[Signature pages follow.]





67












 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 	 	 
	 	 	BORROWER:	 	 
	 
	 	 	 	 	 	 
	 	 	VIRGINIA HOLDCO, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel F. Sansone
 

	 	 
	 

	 	Name:
	 	Daniel F. Sansone	 	 
	 

	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Administrative	 	 
	 	 	Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ W. Thomas Barnett
 

	 	 
	 

	 	Name:
	 	W. Thomas Barnett	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender, L/C	 	 
	 	 	Issuer and Swing Line Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ W. Thomas Barnett
 

	 	 
	 

	 	Name:
	 	W. Thomas Barnett	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL	 	 
	 	 	ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Andrew G. Payne
 

	 	 
	 

	 	Name:
	 	Andrew G. Payne	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Anthony W. White
 

	 	 
	 

	 	Name:
	 	Anthony W. White	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	REGIONS BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David A. Simmons
 

	 	  
	 

	 	Name:
	 	David A. Simmons	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	UBS LOAN FINANCE LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David B. Julie
 

	 	 
	 

	 	Name:
	 	David B. Julie	 	 
	 

	 	Title:
	 	Associate Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mary E. Evans
 

	 	 
	 

	 	Name:
	 	Mary E. Evans	 	 
	 

	 	Title:
	 	Associate Director	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	William Street Commitment	 	 
	 	 	Corporation
(Recourse only to the Assets 

of William Street Commitment Corporation)	 	 
	 	 		 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark Walton
 

	 	 
	 

	 	Name:
	 	Mark Walton	 	 
	 

	 	Title:
	 	Assistant Vice-President	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	CITICORP USA INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jeffrey A. Neikirk
 

	 	 
	 

	 	Name:
	 	Jeffrey A. Neikirk	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	MIZUHO CORPORATE BANK, LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Raymond Ventura
 

	 	 
	 

	 	Name:
	 	Raymond Ventura	 	 
	 

	 	Title:
	 	Deputy General Manager	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	THE ROYAL BANK OF SCOTLAND PLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ L. Peter Yetman
 

	 	 
	 

	 	Name:
	 	L. Peter Yetman	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ,	 	 
	 	 	LTD., NEW YORK BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mary Coseo
 

	 	 
	 

	 	Name:
	 	Mary Coseo	 	 
	 

	 	Title:
	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	THE NORTHERN TRUST COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thomas Hasenauer
 

	 	 
	 

	 	Name:
	 	Thomas Hasenauer	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL	 	 
	 	 	ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Alex Idichandy
 

	 	 
	 

	 	Name:
	 	Alex Idichandy	 	 
	 

	 	Title:
	 	Regional Vice President	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brian J. Blomeke
 

	 	 
	 

	 	Name:
	 	Brian J. Blomeke	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





	 	 	 	 	 	 	 
	 	 	SUNTRUST BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Maddox
 

	 	 
	 

	 	Name:
	 	Robert Maddox	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Virginia Holdco, Inc.

2007 364-Day Credit Agreement

Signature Page




 









 





SCHEDULE 2.01




COMMITMENTS AND

APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 
	Lender	 	Commitment	 	 	Percentage	 
	Bank of America, N.A.
	 	$	60,000,000.00	 	 	 	12.000000000	%
	 
	 	 	 	 	 	 	 	 
	Wachovia Bank, National Association
	 	$	60,000,000.00	 	 	 	12.000000000	%
	 
	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.
	 	$	58,750,000.00	 	 	 	11.800000000	%
	 
	 	 	 	 	 	 	 	 
	Regions Bank
	 	$	50,000,000.00	 	 	 	10.000000000	%
	 
	 	 	 	 	 	 	 	 
	UBS Loan Finance LLC
	 	$	50,000,000.00	 	 	 	10.000000000	%
	 
	 	 	 	 	 	 	 	 
	William Street Commitment Corporation
(Recourse only to the Assets of
William Street Commitment
Corporation)
	 	$	37,500,000.00	 	 	 	7.500000000	%
	 
	 	 	 	 	 	 	 	 
	Citicorp USA Inc.
	 	$	31,250,000.00	 	 	 	6.300000000	%
	 
	 	 	 	 	 	 	 	 
	Mizuho Corporate Bank, Ltd.
	 	$	31,250,000.00	 	 	 	6.300000000	%
	 
	 	 	 	 	 	 	 	 
	The Royal Bank of Scotland plc
	 	$	25,000,000.00	 	 	 	5.000000000	%
	 
	 	 	 	 	 	 	 	 
	The Bank of Tokyo-Mitsubishi UFJ,
Ltd., New York Branch
	 	$	25,000,000.00	 	 	 	5.000000000	%
	 
	 	 	 	 	 	 	 	 
	The Northern Trust Company
	 	$	18,750,000.00	 	 	 	3.800000000	%
	 
	 	 	 	 	 	 	 	 
	Wells Fargo Bank, National Association
	 	$	18,750,000.00	 	 	 	3.800000000	%
	 
	 	 	 	 	 	 	 	 
	Fifth Third Bank
	 	$	18,750,000.00	 	 	 	3.800000000	%
	 
	 	 	 	 	 	 	 	 
	SunTrust Bank
	 	$	15,000,000.00	 	 	 	3.000000000	%
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Total
	 	$	500,000,000.00	 	 	 	100.000000000	%






S-1











 





EXHIBIT A




FORM OF COMMITTED LOAN NOTICE




Date:                     ,           





			
	To:	 	Bank of America, N.A., as Administrative Agent





Ladies and Gentlemen:




     Reference is made to that certain 364-Day Credit Agreement, dated as of November 16, 2007 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement”; the terms defined therein being used herein as therein defined), among
Virginia Holdco, Inc., a New Jersey corporation (the “Borrower”), the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent.



     The undersigned hereby requests (select one):



o A Borrowing of Committed Loans            o A conversion or continuation of Committed Loans





	 	1.	 	On                                                             (a Business Day).
	 
	 	2.	 	In the amount of $                                        .
	 
	 	3.	 	Comprised of                                                             .

                        [Type of Committed Loan requested]
	 
	 	4.	 	For Eurodollar Rate Loans: with an Interest Period of                      months.





     The Committed Borrowing, if any, requested herein complies with the provisos to the first
sentence of Section 2.01 of the Agreement.



	 	 	 	 	 	 	 
	 	 	VIRGINIA HOLDCO, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Form of Committed Loan Notice





A-1









 








EXHIBIT B-1




FORM OF BID REQUEST





			
	To:	 	Bank of America, N.A., as Administrative Agent





Ladies and Gentlemen:




     Reference is made to that certain 364-Day Credit Agreement, dated as of November 16, 2007 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
Virginia Holdco, Inc., a New Jersey corporation (the “Borrower”), the Lenders from time to
time party thereto, Bank of America, N.A., as Administrative Agent.



     The Lenders are invited to make Bid Loans:




	 	1.	 	On                      (a Business Day).
	 
	 	2.	 	In an aggregate amount not exceeding $                     (with any sublimits set forth
below).
	 
	 	3.	 	Comprised of (select one):
	 
	 	 	 	o Bid Loans based on Absolute Rate                      o Bid Loans based on Eurodollar Rate





	 	 	 	 	 
	Bid Loan	 	Interest Period	 	Maximum principal
	No.	 	requested	 	amount requested
	1

	 	                    days/mos
	 	 $                                        
	 
	 	 	 	 
	2

	 	                    days/mos
	 	 $                                        
	 
	 	 	 	 
	3

	 	                    days/mos
	 	 $                                        






     The Bid Borrowing requested herein complies with the requirements of the proviso to the first
sentence of Section 2.03(a) of the Agreement.



     The Borrower authorizes the Administrative Agent to deliver this Bid Request to the Lenders.
Responses by the Lenders must be in substantially the form of Exhibit B-2 to the Agreement
and must be received by the Administrative Agent by the time specified in Section 2.03 of
the Agreement for submitting Competitive Bids.



	 	 	 	 	 	 	 
	 	 	VIRGINIA HOLDCO, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Form of Bid Request





B-1-1









 








EXHIBIT B-2




FORM OF COMPETITIVE BID




                                        ,                     





			
	To:	 	Bank of America, N.A., as Administrative Agent





Ladies and Gentlemen:




     Reference is made to that certain 364-Day Credit Agreement, dated as of November 16, 2007 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
Virginia Holdco, Inc., a New Jersey corporation (the “Borrower”), the Lenders from time to
time party thereto, Bank of America, N.A., as Administrative Agent.



     In response to the Bid Request dated                     , 20          , the undersigned offers to make the
following Bid Loan(s):




	 	1.	 	Borrowing date                                                            (a Business Day).
	 
	 	2.	 	In an aggregate amount not exceeding $                                        (with any sublimits set
forth below).
	 
	 	3.	 	Comprised of:





	 	 	 	 	 	 	 
	 	 	 	 	 	 	Absolute Rate Bid
	 	 	Interest Period	 	 	 	or Eurodollar
	Bid Loan No.	 	offered	 	Bid Maximum	 	Margin Bid*
	1

	 	                     days/mos
	 	$                    
	 	(- +)                     %
	 
	 	 	 	 	 	 
	2

	 	                     days/mos
	 	$                    
	 	(- +)                     %
	 
	 	 	 	 	 	 
	3

	 	                     days/mos
	 	$                    
	 	(- +)                     %







	 	 	 	 
	     Contact Person:	 	 Telephone:	 







	 	 	 	 	 	 	 
	 	 	[LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





******************************************************************************






 




			
	*	 	Expressed in multiples of 1/100th of a basis point.




Form of Competitive Bid





B-2-1









 








     THIS SECTION IS TO BE COMPLETED BY THE BORROWER IF IT WISHES TO ACCEPT ANY OFFERS CONTAINED IN
THIS COMPETITIVE BID:



     The offers made above are hereby accepted in the amounts set forth below:



	 	 	 
	 	 	Principal Amount
	Bid Loan No.	 	Accepted
	 

	 	$ 
	 
	 	 
	 

	 	$ 
	 
	 	 
	 

	 	$ 





	 	 	 	 	 
	VIRGINIA HOLDCO, INC.	 	 
	 
	 	 	 	 
	By:

	 	 
	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 	 	 






Form of Competitive Bid





B-2-2









 








EXHIBIT C




FORM OF NOTE




                    




     FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
                                                             or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to the Borrower under that certain 364-Day Credit Agreement, dated as of
November 16, 2007 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement”; the terms defined therein being used herein as therein
defined), among the Borrower, the Lenders from time to time party thereto, and Bank of America,
N.A., as Administrative Agent.



     The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately available funds at the
Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest, to be paid upon demand, from the due date thereof until the date of
actual payment (and before as well as after judgment) computed at the per annum rate set forth in
the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. Upon the occurrence and continuation of one or more of the Events of Default specified in
the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall
be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also attach schedules to this Note and endorse thereon the date,
amount and maturity of its Loans and payments with respect thereto.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.



	 	 	 	 	 	 	 
	 	 	VIRGINIA HOLDCO, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Form of
Note






C-1









 









LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	 	 	 	 	 	 	Principal	 	Outstanding	 	 
	 	 	Type of	 	Amount of	 	End of	 	or Interest	 	Principal	 	 
	 	 	Loan	 	Loan	 	Interest	 	Paid This	 	Balance	 	Notation
	Date	 	Made	 	Made	 	Period	 	Date	 	This Date	 	Made By
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 






Form of Note





C-2









 








EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                     ,           





			
	To:	 	Bank of America, N.A., as Administrative Agent





Ladies and Gentlemen:




     Reference is made to that certain 364-Day Credit Agreement, dated as of November 16, 2007 (as
amended, restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement”; the terms defined therein being used herein as therein defined), among
Virginia Holdco, Inc., a New Jersey corporation (the “Borrower”), the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
                                                            
of the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the behalf of the Borrower, and that:



[Use following paragraph 1 for fiscal year-end financial statements]




     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as
of the above date, together with the report and opinion of an independent certified public
accountant required by such section.



[Use following paragraph 1 for fiscal quarter-end financial statements]




     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the
above date. Such financial statements fairly present the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP as at such date and for such period, subject only to normal year-end audit
adjustments and the absence of footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by the
attached financial statements.



     3. A review of the activities of the Borrower during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and




Form of Compliance Certificate




D-1









 








[select one:]




     [to the best knowledge of the undersigned during such fiscal period, the Borrower performed
and observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]



—or—




     [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]



     4. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                     ,           .



	 	 	 	 	 	 	 
	 	 	VIRGINIA HOLDCO, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 






Form of Compliance Certificate



D-2









 








For the Quarter/Year ended                                          (“Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




Section 7.06 – Ratio of Consolidated Debt to Total Capitalization.




	 	 	 	 	 
	A.

	 	Consolidated Debt of the Borrower and its Consolidated
Subsidiaries at Statement Date:
	 	$                    
	 	 	 	 	 
	B.

	 	Total Capitalization of the Borrower and its
Consolidated Subsidiaries at Statement Date:	 	 
	 	 	 	 	 
	 

	 	1. Shareholders’ Equity at Statement Date:
	 	$                    
	 	 	 	 	 
	 

	 	2. Consolidated Debt (Line A. above):
	 	$                    
	 	 	 	 	 
	 

	 	3. Total Capitalization (Lines B.1. + B.2.):
	 	$                    
	 	 	 	 	 
	C.

	 	Ratio of Consolidated Debt to Total Capitalization
(Line A. ÷ Line B.3.):
	 	$                    






			
	 	 	 
	Maximum Permitted:
	 	0.65 to 1.0






Form
of Compliance Certificate


D-3 
 









 











EXHIBIT E




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between
[the][each]2 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and [the][each] Assignee identified
in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that
the rights and obligations of [the Assignors][the
Assignees]3 hereunder are several and
not
joint.]4 Capitalized terms used but not defined herein shall have the meanings given
to them in the Credit Agreement identified below (the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below and (ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the
respective Assignors (in their respective capacities as Lenders)] against any Person, whether known
or unknown, arising under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby or in any way
based on or related to any of the foregoing, including, but not limited to, contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in equity related to
the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses
(i) and (ii) above being referred to herein collectively as [the][an] “Assigned
Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and,
except as expressly provided in this Assignment and Assumption, without representation or warranty
by [the][any] Assignor.




	1.	 	Assignor[s] :                                                             







 




			
	2	 	For bracketed language here and elsewhere in this form
relating to the Assignor(s), if the assignment is from a single Assignor,
choose the first bracketed language. If the assignment is from multiple
Assignors, choose the second bracketed language.
	 
	3	 	Select as appropriate.
	 
	4	 	Include bracketed language if there are either multiple
Assignors or multiple Assignees.




Form of Assignment and Assumption




E-1









 









	2.	 	Assignee[s]:                                                              [for each Assignee,
indicate [Affiliate][Approved Fund] of [identify
Lender]]
	 
	3.	 	Borrower: Virginia Holdco, Inc., a New Jersey corporation
	 
	4.	 	Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement
	 
	5.	 	Credit Agreement: 364-Day Credit Agreement, dated as of November 16, 2007, among
Virginia Holdco, Inc., a New Jersey corporation, the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent
	 
	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of	 	Amount of	 	Percentage	 	 
	 	 	 	 	Facility	 	Commitment	 	Commitment	 	Assigned of	 	CUSIP
	Assignor[s]5	 	Assignee[s]6	 	Assigned7	 	for all Lenders8	 	Assigned	 	Commitment9	 	Number
	 

	 	 
	 	                    
	 	$                    
	 	$                    
	 	                    %
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	                    
	 	$                    
	 	$                    
	 	                    %
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	                    
	 	$                    
	 	$                    
	 	                    %
	 	 







			
	[7.	 	Trade Date:                                         ] 10




Effective Date:                     , 20           [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]






 




			
	5	 	List each Assignor, as appropriate.
	 
	6	 	List each Assignee, as appropriate.
	 
	7	 	Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g. “Revolving Credit Commitment”, etc.).
	 
	8	 	Amounts in this column and in the column immediately to
the right to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
	 
	9	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.
	 
	10	 	To be completed if the Assignor and the Assignee intend
that the minimum assignment amount is to be determined as of the Trade Date.





Form of Assignment and Assumption



E-2









 








     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	[Consented to and] 11 Accepted:	 	 
	BANK OF AMERICA, N.A., as

Administrative Agent	 	 
	 
	 	 	 	 
	By:

	 	 	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	[Consented to:] 12	 	 
	 
	 	 	 	 
	VIRGINIA HOLDCO, INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 








 




			
	11	 	To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement.
	 
	12	 	To be added only if the consent of the Borrower and/or
other parties is required by the terms of the Credit Agreement.




Form of Assignment and Assumption




E-3









 








ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




364-Day Credit Agreement, dated as of November 16, 2007 among Virginia Holdco, Inc., a New

Jersey corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and the

Lenders party thereto




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




          1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.




          1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
10.06(b)(iii), (v) and (vi) of the Credit Agreement (subject to receipt of such
consents as may be required under the Credit Agreement), (iii) from and after the Effective Date,
it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the
extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it is sophisticated with respect to decisions to acquire assets of the type presented by
[the][such] Assigned Interest and either it, or the Person exercising discretion in making its
decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type,
(v) it has received a copy of the Credit Agreement and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered pursuant to
Section 6.01 thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, (vi) it has independently and without
reliance upon the Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a
Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees
that (i) it will, independently and without reliance upon the Administrative Agent, [the][any]
Assignor or any other Lender, and based on such documents and information as it




Form of Assignment and Assumption




E-4









 







shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all
of the obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.




          2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][relevant] Assignee for amounts which have accrued
from and after the Effective Date.




          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.




Form of Assignment and Assumption



E-5









 








EXHIBIT F-1




FORM OF BORROWER OPINION




See attached.





Form of Borrower Opinion




F-1-1









 








EXHIBIT F-2




FORM OF SPECIAL COUNSEL TO BORROWER OPINION




See attached.





Form of Special Counsel to Borrower Opinion





F-2-1