EX-10.3



 





Exhibit 10.3




 





Published CUSIP Number: XXXXXXXXX




FIVE-YEAR CREDIT AGREEMENT




Dated as of November 16, 2007

among




VULCAN MATERIALS COMPANY 1,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,




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.




 









 










	 	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	19	 
	1.03 Accounting Terms
	 	 	20	 
	1.04 Rounding
	 	 	20	 
	1.05 Times of Day
	 	 	20	 
	1.06 Letter of Credit Amounts
	 	 	20	 
	ARTICLE
II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	21	 
	2.01 Committed Loans
	 	 	21	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	21	 
	2.03 Bid Loans
	 	 	22	 
	2.04 Letters of Credit
	 	 	25	 
	2.05 Swing Line Loans
	 	 	34	 
	2.06 Prepayments
	 	 	37	 
	2.07 Termination or Reduction of Commitments
	 	 	38	 
	2.08 Repayment of Loans
	 	 	38	 
	2.09 Interest
	 	 	38	 
	2.10 Fees
	 	 	39	 
	2.11 Computation of Interest and Fees
	 	 	39	 
	2.12 Evidence of Debt
	 	 	40	 
	2.13 Payments Generally; Administrative Agent’s Clawback
	 	 	40	 
	2.14 Sharing of Payments by Lenders
	 	 	42	 
	2.15 Increase in Commitments
	 	 	43	 
	2.16 Extension of Maturity Date
	 	 	44	 
	ARTICLE
III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	45	 
	3.01 Taxes
	 	 	45	 
	3.02 Illegality
	 	 	48	 
	3.03 Inability to Determine Rates
	 	 	48	 
	3.04 Increased Costs
	 	 	48	 
	3.05 Compensation for Losses
	 	 	50	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	50	 
	3.07 Survival
	 	 	51	 
	ARTICLE
IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	51	 






i









 






	 	 	 	 	 
	4.01 Conditions of Initial Credit Extension
	 	 	51	 
	4.02 Conditions to all Credit Extensions
	 	 	52	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	53	 
	5.01 Existence, Qualification and Power
	 	 	53	 
	5.02 Authorization; No Contravention; Governmental Authorization
	 	 	53	 
	5.03 Binding Effect
	 	 	54	 
	5.04 Financial Statements; No Material Adverse Effect
	 	 	54	 
	5.05 Litigation
	 	 	54	 
	5.06 Taxes
	 	 	54	 
	5.07 ERISA Compliance
	 	 	55	 
	5.08 Margin Regulations; Investment Company Act
	 	 	55	 
	5.09 Disclosure
	 	 	55	 
	5.10 Compliance with Laws
	 	 	55	 
	5.11 Taxpayer Identification Number
	 	 	56	 
	ARTICLE
VI. AFFIRMATIVE COVENANTS
	 	 	56	 
	6.01 Financial Statements
	 	 	56	 
	6.02 Certificates; Other Information
	 	 	56	 
	6.03 Notices
	 	 	58	 
	6.04 Payment of Obligations
	 	 	58	 
	6.05 Preservation of Existence
	 	 	58	 
	6.06 Maintenance of Properties
	 	 	58	 
	6.07 Self-Insurance
	 	 	59	 
	6.08 Compliance with Laws
	 	 	59	 
	6.09 Books and Records; Inspection Rights
	 	 	59	 
	6.10 Use of Proceeds
	 	 	59	 
	ARTICLE
VII. NEGATIVE COVENANTS
	 	 	59	 
	7.01 Liens
	 	 	59	 
	7.02 Fundamental Changes
	 	 	60	 
	7.03 Sales of Assets
	 	 	61	 
	7.04 Dissolution
	 	 	61	 
	7.05 Use of Proceeds
	 	 	61	 
	7.06 Ratio of Consolidated Debt to Total Capitalization
	 	 	61	 
	ARTICLE
VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	62	 






ii









 






	 	 	 	 	 
	8.01 Events of Default
	 	 	62	 
	8.02 Remedies Upon Event of Default
	 	 	64	 
	8.03 Application of Funds
	 	 	64	 
	ARTICLE
IX. ADMINISTRATIVE AGENT
	 	 	65	 
	9.01 Appointment and Authority
	 	 	65	 
	9.02 Rights as a Lender
	 	 	65	 
	9.03 Exculpatory Provisions
	 	 	66	 
	9.04 Reliance by Administrative Agent
	 	 	66	 
	9.05 Delegation of Duties
	 	 	67	 
	9.06 Resignation of Administrative Agent
	 	 	67	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	68	 
	9.08 No Other Duties, Etc.
	 	 	68	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	68	 
	ARTICLE
X. MISCELLANEOUS
	 	 	69	 
	10.01 Amendments, Etc.
	 	 	69	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	70	 
	10.03 No Waiver; Cumulative Remedies
	 	 	72	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	72	 
	10.05 Payments Set Aside
	 	 	74	 
	10.06 Successors and Assigns
	 	 	74	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	78	 
	10.08 Right of Setoff
	 	 	79	 
	10.09 Interest Rate Limitation
	 	 	79	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	80	 
	10.11 Survival of Representations and Warranties
	 	 	80	 
	10.12 Severability
	 	 	80	 
	10.13 Replacement of Lenders
	 	 	80	 
	10.14 Governing Law; Jurisdiction; Etc.
	 	 	81	 
	10.15 Waiver of Jury Trial
	 	 	82	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	82	 
	10.17 USA PATRIOT Act Notice
	 	 	83	 
	 
	 	 	 	 
	SIGNATURES
	 	 	S-1	 






iii









 






	 	 	 
	SCHEDULES
	 	 
	 	 
	1.01
	 	Existing Letters of Credit
	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
	 	Swing Line Loan Notice
	D
	 	Note
	E
	 	Compliance Certificate
	F
	 	Assignment and Assumption
	G-1
	 	Borrower Opinion
	G-2
	 	Special Counsel to the Borrower Opinion









iv









 








FIVE-YEAR CREDIT AGREEMENT




     THIS FIVE-YEAR 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, Swing Line Lender and L/C
Issuer.



     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 and the obligation of the
L/C Issuer to make L/C Credit Extensions have 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	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	Eurodollar Rate +
	Pricing	 	 	Debt Ratings	 	 	Facility	 	 	LIBOR Daily Floating Rate +
	Level	 	 	S&P/Moody’s	 	 	Fee	 	 	Letters of Credit
	 	 	 	 	 	 	 	 	 	 
	1
	 	 	A+/A1 or higher	 	 	 	0.040	%	 	 	 	0.135	%
	2
	 	 	 	A/A2	 	 	 	 	0.050	%	 	 	 	0.150	%
	3
	 	 	 	A-/A3	 	 	 	 	0.060	%	 	 	 	0.190	%
	4
	 	 	BBB+/Baa1	 	 	 	0.080	%	 	 	 	0.220	%
	5
	 	 	BBB/Baa2 or lower	 	 	 	0.100	%	 	 	 	0.300	%







     “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 5 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 5 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,



2









 







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.



     “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
F 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 2.07, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions 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.



3









 





     “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.



     “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, a Bid Borrowing or a Swing Line 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.



     “Cash Collateralize” has the meaning specified in Section 2.04(g).



     “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 (a) make Committed Loans to
the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, 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 $1,500,000,000.



     “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.



4









 





     “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 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
E.



     “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.



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “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 (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate



5









 







equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan
plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to
the Applicable Rate plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Committed Loans, participations in L/C Obligations or participations in Swing Line 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 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



6









 







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.



     “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



7









 







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, the L/C
Issuer 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 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 Letters of Credit” means the letters of credit described on Schedule
1.01.



     “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.



8









 





     “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.



     “Fee Letter” means, collectively, (a) the letter agreement, dated May 29, 2007, among
the Borrower and the Administrative Agent and (b) the letter agreement, dated May 29, 2007, among
the Borrower, Banc of America Securities LLC and Wachovia Capital Markets, LLC.



     “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,



9









 







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.



     “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 (including a Swing Line 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:



10









 






     (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 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.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of
Credit.



     “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.



     “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date required to be reimbursed herein or refinanced
as a Committed Borrowing.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Issuer” means, (a) with respect to any Letter of Credit, each of Bank of America
and each other Lender that agrees or is otherwise obligated to issue such Letter of Credit from
time to time, whether pursuant to Section 2.04(b), Section 2.04(l), Section
9.06, Section 10.06 or otherwise, and (b) with respect to any Existing Letter of Credit
issued pursuant to the Existing Target Credit Facility, Wachovia Bank, National Association or Bank
of America, N.A., as



11









 







applicable, each in its capacity as issuer of Existing Letters of Credit under this Credit
Agreement; provided that, at any one time there shall not be more than three L/C Issuers.
At any time there is more than one L/C Issuer, all singular references to the L/C Issuer shall mean
any L/C Issuer, either L/C Issuer, each L/C Issuer, the L/C Issuer that has issued the applicable
Letter of Credit, or all L/C Issuers, as the context may require.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



     “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.



     “Letter of Credit” means any standby letter of credit issued hereunder and shall
include the Existing Letters of Credit.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business
Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.04(i).



     “Letter of Credit Sublimit” means an amount equal to $250,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “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



12









 







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.



     “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, a Bid Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, each Note, each Issuer Document 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) November 16, 2012 and (b) if maturity is
extended pursuant to Section 2.16, November 16, 2013; 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 D.



13









 





     “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
or Letter of Credit, 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
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 (a) with respect to Committed Loans, Bid Loans and Swing
Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to
any borrowings and prepayments or repayments of Committed Loans, Bid Loans and Swing Line Loans, as
the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date,
the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.



     “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



14









 







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;




     (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.



15









 





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



16









 





     “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 and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); 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.



     “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



17









 




(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).




     “Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.05.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.05.



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



     “Swing Line Loan” has the meaning specified in Section 2.05(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.05(b), which, if in writing, shall be substantially in the form of Exhibit
C.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $25,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “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.



     “364-Day Working Capital Credit Agreement” means that certain 364-Day 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.



     “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
and all L/C Obligations.



18









 





     “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.



     “Unreimbursed Amount” has the meaning specified in Section 2.04(c)(i).



     “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 364-Day 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



19









 







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,
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.



     (a) 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).



     1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at
such time (including giving effect to any further increases or decreases thereof);
provided, however, that with respect to any Letter of Credit that, by its terms or
the terms of any



20









 







Issuer Document related thereto, provides for one or more automatic increases in the stated
amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     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 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, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans 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 2.06, 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. Except as provided in Sections
2.04(c) and 2.05(c), 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



21









 







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 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
Credit Extension, 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; provided,
however, that if, on the date the Committed Loan Notice with respect to such Borrowing is
given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing,
first, shall be applied to the payment in full of any such L/C Borrowings, and
second, shall be made available to the Borrower as provided above.



     (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



22









 




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 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



23









 







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
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



24









 







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
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 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its
Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under the Letters of
Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for
the account of the Borrower or its Subsidiaries and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y)
the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus




25











 






such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a representation
by the Borrower that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.




     (ii) The L/C Issuer shall not issue any Letter of Credit if:




     (A) subject to Section 2.04(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance,
unless the Required Lenders have approved such expiry date;




     (B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders have approved such expiry
date; or




     (C) such Letter of Credit is to be denominated in a currency other than
Dollars.




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon the L/C Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good faith deems material
to it;




     (B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer applicable to letters of credit generally;




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $100,000; or



26









 






     (D) a default of any Lender’s obligations to fund under Section 2.04(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower or such Lender
to eliminate the L/C Issuer’s risk with respect to such Lender.




     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.




     (vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article IX included the L/C Issuer with respect to such acts or omissions, and
(B) as additionally provided herein with respect to the L/C Issuer.



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 12:00 noon at least two
Business Days (or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may require. In the case of a request for an amendment
of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form
and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally,
the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other
documents and information pertaining to such



27









 






requested Letter of Credit issuance or amendment, including any Issuer Documents, as
the L/C Issuer or the Administrative Agent may require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Lender, the Administrative Agent or the
Borrower, at least one Business Day prior to the requested date of issuance or amendment of
the applicable Letter of Credit, that one or more applicable conditions contained in
Article IV shall not then be satisfied, then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and
customary business practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the
product of such Lender’s Applicable Percentage times the amount of such Letter of
Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a specific request to
the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer
to permit the extension of such Letter of Credit at any time to an expiry date not later
than the Letter of Credit Expiration Date; provided, however, that the L/C
Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it
would not be permitted, or would have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason of the provisions
of clause (ii) or (iii) of Section 2.04(a) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before the day that is
five Business Days before the Non-Extension Notice Date (1) from the Administrative Agent
that the Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied, and in each such case
directing the L/C Issuer not to permit such extension.




     (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the



28









 






L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 12:00 noon on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing; provided that, if the Borrower is not notified of a drawing
under a Letter of Credit by 10:00 a.m. on the date of such drawing, then the Borrower shall
instead be required to make such reimbursement on the Business Day following such drawing.
If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing
(the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage
thereof. In such event, the Borrower shall be deemed to have requested a Committed
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section
2.02 for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth in Section
4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.04(c)(i) may be given
by telephone if immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
No later than the fifth Business Day of each month, each L/C Issuer shall provide a written
report to the Administrative Agent as to the stated amount of any Letters of Credit issued
by such L/C Issuer during the preceding month, the dates and amounts of each draw under any
outstanding Letters of Credit during such month and the dates and amounts of each
reimbursement made by the Borrower during such month.




     (ii) Each Lender shall upon any notice pursuant to Section 2.04(c)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer at the
Administrative Agent’s Office in an amount equal to its Applicable Percentage of the
Unreimbursed Amount not later than 2:00 p.m. on the Business Day specified in such notice by
the Administrative Agent, whereupon, subject to the provisions of Section
2.04(c)(iii), each Lender that so makes funds available shall be deemed to have made a
Base Rate Committed Loan to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to the L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed Borrowing of Base Rate Loans because the conditions set forth in Section
4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment
to the Administrative Agent for the account of the L/C Issuer



29









 






pursuant to Section 2.04(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.04.




     (iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this
Section 2.04(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be
solely for the account of the L/C Issuer.




     (v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.04(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Committed Loans
pursuant to this Section 2.04(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by the Borrower of a Committed Loan Notice). No
such making of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the L/C Issuer in connection with the foregoing. If
such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or L/C
Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the
L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.04(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent



30









 






will distribute to such Lender its Applicable Percentage thereof in the same funds as
those received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.04(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination of this
Agreement.



     (e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances (but subject to Section 2.04(f)), including the
following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or




     (v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.



     The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with



31









 







the Borrower’s instructions or other irregularity, the Borrower will immediately notify the
L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the
L/C Issuer and its correspondents unless such notice is given as aforesaid.



     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. As between the Borrower, on the
one hand, and the Lenders and the L/C Issuer, on the other, the Borrower hereby assumes all risks
of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall not,
preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant or assignee of the L/C
Issuer shall be liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.04(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C
Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of
a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may
accept documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall
not be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case, on the next
Business Day following the date on which the Borrower receives notice of such request, Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.06 and
8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.04, Section 2.06 and Section 8.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in form and substance satisfactory to
the Administrative Agent and the L/C



32









 







Issuer (which documents are hereby consented to by the Lenders), or, with respect to
clause (ii) above, to provide a back-to-back letter of credit issued by an institution, and
in form, reasonably satisfactory to the L/C Issuer. Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America.



     (h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing
Letter of Credit), the rules of the ISP shall apply to each standby Letter of Credit.



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the daily amount available to be drawn under such Letter of Credit. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit
Fees shall be (i) due and payable on the first Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after the issuance of such
Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii)
computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall
accrue at the Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit, at a rate per annum equal to 0.125% or such other rate as may be separately
agreed to in writing between the Borrower and the applicable L/C Issuer, computed on the daily
amount available to be drawn under such Letter of Credit and on a quarterly basis in arrears. Such
fronting fee shall be due and payable on the tenth Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly period (or portion thereof,
in the case of the first payment), commencing with the first such date to occur after the issuance
of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.06. In addition,
the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of the L/C
Issuer relating to letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.



     (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



33









 





     (l) L/C Issuers. The Borrower may, at any time and from time to time, whether in
connection with a resignation of an L/C Issuer pursuant to Section 9.06 or Section
10.06(h) below or otherwise, designate one or more additional Lenders to act as an L/C Issuer
under the terms of this Agreement, with the consent of the Administrative Agent (which consent
shall not be unreasonably withheld, delayed or conditioned) and such Lender; provided that
in no event shall there be more than three L/C Issuers at any time. Any Lender designated as an
L/C Issuer pursuant to this Section 2.04(l) shall be deemed (in addition to being a Lender)
to be the L/C Issuer with respect to the Letters of Credit issued or to be issued by such Lender,
and all references herein and in the other Loan Documents to the term “L/C Issuer” shall, with
respect to such Letters of Credit, be deemed to refer to such Lender in its capacity as an L/C
Issuer, as the context shall require.



     (m) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and
all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that
the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.



     2.05 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.05, to make loans (each such loan, a “Swing Line Loan”) to the Borrower
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 the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of
Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the
amount of such Lender’s Commitment; provided, however, that after giving effect to
any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and
(ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Commitment, and provided, further, that the Borrower shall not use
the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.05, prepay under Section 2.06, and reborrow under this
Section 2.05. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making
of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an
amount equal to the product of such Lender’s Applicable Percentage times the amount of such
Swing Line Loan.



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 2:00 p.m. on the requested borrowing date, and shall specify



34









 




(i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line
Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly
after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line
Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to 3:00 p.m. on the date of the
proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan
as a result of the limitations set forth in the proviso to the first sentence of Section
2.05(a), or (B) that one or more of the applicable conditions specified in Article IV
is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender
will, not later than 4:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make
the amount of its Swing Line Loan available to the Borrower.




     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Committed Loan in an amount equal
to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Lender shall make an amount
equal to its Applicable Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in immediately available funds for the account of the
Swing Line Lender at the Administrative Agent’s Office not later than 2:00 p.m. on the day
specified in such Committed Loan Notice, whereupon, subject to Section 2.05(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base Rate Committed
Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so
received to the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.05(c)(i), the request for Base Rate Committed
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.05(c)(i) shall be deemed
payment in respect of such participation.



35









 






     (iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.05(c) by the time specified in Section
2.05(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with
banking industry rules on interbank compensation, plus any administrative processing
or similar fees customarily charged by the Swing Line Lender in connection with the
foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lender’s Committed Loan included in the relevant
Committed Borrowing or funded participation in the relevant Swing Line Loan, as the case may
be. A certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (iii)
shall be conclusive absent manifest error.




     (iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.05(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Committed Loans pursuant to this Section 2.05(c) is
subject to the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower to repay
Swing Line Loans, together with interest as provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof
in the same funds as those received by the Swing Line Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



36









 





     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.05 to
refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.



     (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



     2.06 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) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 2:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount 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.



     (c) 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 and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however, that
the Borrower shall not be required to Cash Collateralize the L/C Obligations



37









 







pursuant to this Section 2.06(c) unless after the prepayment in full of the Loans the
Total Outstandings exceed the Aggregate Commitments then in effect.



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



     2.07 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, the Letter of Credit Sublimit or
the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such 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.



     2.08 Repayment of Loans.



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



     (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the Maturity Date.



     2.09 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; (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; and (v) each
Swing Line 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.



38









 





     (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 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.



     2.10 Fees. In addition to certain fees described in subsections (i) and (j)
of Section 2.04:



     (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, Swing Line Loans or L/C Obligations 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.



     2.11 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



39









 







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 2.13(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.



     2.12 Evidence of Debt.



     (a) The Credit Extensions 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 Credit Extensions 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.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual practice accounts or
records evidencing the purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts and records maintained by
the Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.



     2.13 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,



40









 







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 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 or the L/C
Issuer 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 or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, 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.



41









 





     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 Credit Extension 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, to fund participations in Letters of Credit and Swing Line 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 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.



     2.14 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, or the participations in L/C Obligations or in Swing Line Loans
held 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 and subparticipations in L/C Obligations and Swing Line 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



42









 






subparticipations in L/C Obligations or Swing Line Loans 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.



     2.15 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
364-Day Working 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, the L/C Issuer and the Swing Line Lender (which approvals 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



43









 







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 2.14 or 10.01 to the contrary.



     2.16 Extension of Maturity Date.



     (a) Requests for Extension. The Borrower may, by notice to the Administrative Agent
(who shall promptly notify the Lenders) not later than 60 days prior to the second anniversary of
the Closing Date then in effect hereunder, request that each Lender extend the Maturity Date (the
“Original Maturity Date”) for one additional one-year 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



44









 







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 one year 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 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 2.14 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, Lender or L/C Issuer, 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.



45









 





     (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,
each Lender and the L/C Issuer, 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, such Lender or the L/C Issuer, 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 by a Lender or the L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or
the L/C Issuer, 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.



46









 





     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




     (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, any Lender
or the L/C Issuer 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, such Lender or the L/C Issuer, 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, such Lender or the L/C Issuer, 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, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund or credit to
such Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer 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.



47









 





     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 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) or the L/C Issuer;




     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified



48









 






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 the L/C Issuer); or




     (iii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;


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 increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.




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



     (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer 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 or the
L/C Issuer, as the case may be, 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 or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer 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 or the L/C Issuer, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or reductions and of such



49









 






Lender’s or the L/C Issuer’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.



     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.



50









 





     (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 CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender
to make its initial Credit Extension 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;




     (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



51









 






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 364-Day 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 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 Credit Extensions. The obligation of each Lender to honor any Request
for Credit Extension (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:



52









 





     (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
Credit Extension, 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 Credit Extension, 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 Credit Extension or from the
application of the proceeds thereof.



     (c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall
have received a Request for Credit Extension in accordance with the requirements hereof.



     Each Request for Credit Extension (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 Credit Extension.



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 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)



53









 




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.



     (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,



54









 







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 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.



55









 





     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, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding
without having been Cash Collateralized, 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.



     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



56









 







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-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



57









 







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 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.



58









 





     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
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, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding
without having been Cash Collateralized, 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:



59









 





     (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



     (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



60









 







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 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;



61









 






     (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 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



62









 




$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 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



63









 





     (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 and any obligation of the L/C Issuer
to make L/C Credit Extensions 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;



     (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and



     (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer 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 and any obligation of the L/C Issuer to make L/C Credit
Extensions 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, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.



     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 and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), 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;



64









 





     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer 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
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer 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 and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;



     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit; 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.



Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer 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, the Lenders and
the L/C Issuer, 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




65












 




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, a Lender or the L/C Issuer.



     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



66









 







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, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. 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, the L/C Issuer 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 and the L/C Issuer, 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 and the L/C Issuer 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



67









 







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 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.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer
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 and the L/C Issuer 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, a Lender
or the L/C Issuer 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 or L/C Obligation 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, L/C Obligations 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, the L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due



68









 







the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.04(i) and
(j), 2.10 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 and the L/C Issuer 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 and the L/C Issuer, 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 2.10 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 or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer 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 L/C
Borrowing, or (subject to clause (iv) 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 or Letter of Credit Fees at the Default Rate;



69









 





     (e) change Section 2.14 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 L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) 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 (iv) 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 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, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, 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 and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the



70









 







Administrative Agent, provided that the foregoing shall not apply to notices to any
Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as
applicable, 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.



     (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, the L/C Issuer 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, the L/C Issuer 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, the Administrative Agent, the L/C
Issuer and the Swing Line Lender 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, the Administrative Agent, the L/C Issuer and the Swing Line Lender. 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,



71









 







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, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line 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, the L/C Issuer, 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, the L/C Issuer 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 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), (ii) all reasonable out-of-pocket expenses
incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer) 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 or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each



72









 







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
Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the
L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), 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 it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer 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) or the L/C Issuer 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) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.13 (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 Letter of Credit 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



73









 







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 L/C Issuer and the Swing Line Lender, 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, the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer 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, the L/C Issuer 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 and the L/C Issuer 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 and the L/C Issuer under clause
(b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.



     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,



74









 







the L/C Issuer 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 (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line 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.




     (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, except that this
clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in
respect of Swing Line Loans.




     (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;




     (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



75









 







Person that is not a Lender, an Affiliate of such Lender or an Approved Fund
with respect to such Lender;




     (C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and




     (D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment.




     (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 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 and L/C Obligations 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



76









 







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 (including such Lender’s
participations in L/C Obligations and/or Swing Line 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, the Lenders and the L/C Issuer 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 2.14 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.



     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature”, and words of like import in any Assignment and Assumption shall be deemed to



77









 







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.



     (h) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time any Lender assigns all of its Commitment
and Loans pursuant to subsection (b) above, such Lender (a “Resigning Lender”) may,
as applicable and unless other arrangements satisfactory to such Resigning Lender have been made,
(i) upon 30 days’ notice to the Borrower, the Administrative Agent and the other Lenders, resign as
L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower and the Administrative Agent, resign as
Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the
Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer (in accordance
with the terms of Section 2.03(l)) or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall affect the
resignation of such Resigning Lender as L/C Issuer or Swing Line Lender, as the case may be. If
any Lender resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of
the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date
of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right
to require the Lenders to make Base Rate Committed Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.04(c)). If any Lender resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect
to Swing Line Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Committed Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.05(c). Upon the
appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the time of such successor
or make other arrangements satisfactory to the Resigning Lender to effectively assume the
obligations of the Resigning Lender with respect to such Letters of Credit.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuer 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



78









 







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, the L/C Issuer 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, any
Lender or the L/C Issuer 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, the Lenders and the L/C Issuer 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.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer 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, the
L/C Issuer 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 or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer 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 or the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender
and the L/C Issuer 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 



79









 




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 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



80









 







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 and L/C Advances, 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.



     (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, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT



81









 







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 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



82









 







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 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.]




83









 





     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 Five-Year 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 Five-Year 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 Five-Year 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 Five-Year 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 Five-Year Credit Agreement

Signature Page




 









 








	 	 	 	 	 
	 	 	REGIONS BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ David A. Simmons
	 

	 	 	 	 
	 

	 	Name:
	 	David A. Simmons
	 

	 	Title:
	 	Senior Vice President






Virginia Holdco, Inc.

2007 Five-Year 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 Five-Year 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 Five-Year Credit Agreement

Signature Page




 









 








	 	 	 	 	 
	 	 	CITICORP USA INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jeffrey A. Neikirk
	 

	 	 	 	 
	 

	 	Name:
	 	Jeffrey A. Neikirk
	 

	 	Title:
	 	Managing Director






Virginia Holdco, Inc.

2007 Five-Year Credit Agreement

Signature Page




 









 








	 	 	 	 	 
	 	 	 MIZUHO CORPORATE BANK, LTD.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Raymond Ventura
	 

	 	 	 	 
	 

	 	Name:
	 	Raymond Ventura
	 

	 	Title:
	 	Deputy General Manager






Virginia Holdco, Inc.

2007 Five-Year 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 Five-Year 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 Five-Year Credit Agreement

Signature Page




 









 








	 	 	 	 	 
	 	 	THE NORTHERN TRUST COMPANY
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Thomas Hasenauer
	 

	 	 	 	 
	 

	 	Name:
	 	Thomas Hasenauer
	 

	 	Title:
	 	Vice President






Virginia Holdco, Inc.

2007 Five-Year Credit Agreement

Signature Page




 









 








	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Alex Idichandy
	 

	 	 	 	 
	 

	 	Name:
	 	Alex Idichandy
	 

	 	Title:
	 	Regional Vice President






Virginia Holdco, Inc.

2007 Five-Year Credit Agreement

Signature Page




 









 








	 	 	 	 	 
	 	 	FIFTH THIRD BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Brian J. Blomeke
	 

	 	 	 	 
	 

	 	Name:
	 	Brian J. Blomeke
	 

	 	Title:
	 	Assistant Vice President






Virginia Holdco, Inc.

2007 Five-Year Credit Agreement

Signature Page




 









 








	 	 	 	 	 
	 	 	SUNTRUST BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert Maddox
	 

	 	 	 	 
	 

	 	Name:
	 	Robert Maddox
	 

	 	Title:
	 	Vice President






Virginia Holdco, Inc.

2007 Five-Year Credit Agreement

Signature Page





 









 






SCHEDULE 2.01




COMMITMENTS AND

APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 
	          Lender	 	Commitment	 	 	Percentage	 
	Bank of America, N.A.
	 	$	180,000,000.00	 	 	 	12.000000000	%
	 
	Wachovia Bank, National Association
	 	$	180,000,000.00	 	 	 	12.000000000	%
	 
	JPMorgan Chase Bank, N.A.
	 	$	176,250,000.00	 	 	 	11.800000000	%
	 
	Regions Bank
	 	$	150,000,000.00	 	 	 	10.000000000	%
	 
	UBS Loan Finance LLC
	 	$	150,000,000.00	 	 	 	10.000000000	%
	 
	William Street Commitment Corporation
(Recourse only to the Assets of
William Street Commitment
Corporation)
	 	$	112,500,000.00	 	 	 	7.500000000	%
	 
	Citicorp USA Inc.
	 	$	93,750,000.00	 	 	 	6.300000000	%
	 
	Mizuho Corporate Bank, Ltd.
	 	$	93,750,000.00	 	 	 	6.300000000	%
	 
	The Royal Bank of Scotland plc
	 	$	75,000,000.00	 	 	 	5.000000000	%
	 
	The Bank of Tokyo-Mitsubishi UFJ,
Ltd., New York Branch
	 	$	75,000,000.00	 	 	 	5.000000000	%
	 
	The Northern Trust Company
	 	$	56,250,000.00	 	 	 	3.800000000	%
	 
	Wells Fargo Bank, National Association
	 	$	56,250,000.00	 	 	 	3.800000000	%
	 
	Fifth Third Bank
	 	$	56,250,000.00	 	 	 	3.800000000	%
	 
	SunTrust Bank
	 	$	45,000,000.00	 	 	 	3.000000000	%
	 
	 	 	 	 	 	 
	 
	Total
	 	$	1,500,000,000.00	 	 	 	100.000000000	%
	 







S-2 









 








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 Five-Year 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, Swing Line Lender and L/C
Issuer.



     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 Five-Year 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, Swing Line Lender and L/C
Issuer.



     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 an Absolute            o Bid Loans based on Eurodollar Rate
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 Five-Year 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, Swing Line Lender and L/C
Issuer.



     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 SWING LINE LOAN NOTICE




Date:                     , _____




To:    Bank of America, N.A., as Swing Line Lender




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




Ladies and Gentlemen:




     Reference is made to that certain Five-Year 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, Swing Line Lender and L/C
Issuer.



     The undersigned hereby requests a Swing Line Loan:



     1. On                                          (a Business Day).



     2. In the amount of $                                        .



     The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.05(a) of the Agreement.



	 	 	 	 	 	 	 
	 	 	VIRGINIA HOLDCO, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 
 	 	 
	 

	 	Name:	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Form of Swing Line Loan Notice



C-1









 





EXHIBIT D




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 Five-Year 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, Swing Line Lender and L/C Issuer.



     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. Except as otherwise provided in Section 2.05(f) of the
Agreement with respect to Swing Line Loans, 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





D-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





D-2









 






EXHIBIT E




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 Five-Year 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, Swing Line Lender and L/C
Issuer.



     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





E-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



E-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





E-3









 





EXHIBIT F




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]2Assignor
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 (including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities 5) 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.





 




			
	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.
	 
	5	 	Include all applicable subfacilities.





Form of Assignment and Assumption



F-1









 






	1.	 	Assignor[s]:                                                             
	 
	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: Five-Year 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, Swing Line Lender and L/C Issuer
	 
	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of	 	Amount of	 	Percentage	 	 
	 	 	 	 	Facility	 	Commitment	 	Commitment	 	Assigned of	 	CUSIP
	Assignor[s]6	 	Assignee[s]7	 	Assigned 8	for all Lenders9	Assigned	 	Commitment 10	 	Number
	 

	 	 	 	                    
	 	$                    
	 	$                    
	 	                    %	 	 
	 

	 	 	 	                    
	 	$                    
	 	$                    
	 	                    %	 	 
	 

	 	 	 	                    
	 	$                    
	 	$                    
	 	                    %	 	 





[7.     Trade Date:                                         ] 11






 




			
	6	 	List each Assignor, as appropriate.
	 
	7	 	List each Assignee, as appropriate.
	 
	8	 	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.).
	 
	9	 	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.
	 
	10	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.
	 
	11	 	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





F-2









 




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




     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] 12 Accepted:

BANK OF AMERICA, N.A., as

 Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	[Consented to:] 13

	 	 
	 
	 	 	 	 
	VIRGINIA
HOLDCO, INC.
	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 








 




			
	12	 	To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement.
	 
	13	 	To be added only if the consent of the Borrower and/or
other parties (e.g. Swing Line Lender, L/C Issuer) is required by the terms of
the Credit Agreement.





Form of Assignment and Assumption




F-3









 





ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




Five-Year 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





F-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





F-5









 





EXHIBIT G-1




FORM OF BORROWER OPINION




See attached.




Form of Borrower Opinion





G-1-1









 





EXHIBIT G-2




FORM OF SPECIAL COUNSEL TO BORROWER OPINION




See attached.




Form of Special Counsel to Borrower Opinion





G-2-1